FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP
FIFTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP (the
"Partnership"), dated as of May 1, 2000 (the "Partnership Agreement"), by and
among JP Realty, Inc., as general partner (the "General Partner"), and the
Persons whose names are set forth on EXHIBIT A attached thereto and any other
Persons who may have become partners in the Partnership as provided therein, as
limited partners (the "Limited Partners"). Capitalized terms used but not
otherwise defined in this First Amendment shall have the same meanings ascribed
to them in the Partnership Agreement.
W I T N E S S E T H:
WHEREAS, on the date hereof, Xxxxxxx Xxxxx Xxxxxx Tax Advantaged
Exchange Fund III, LLC, a Delaware limited liability company (the
"Contributor"), has made a capital contribution of $8,000,000 in cash to the
Partnership in exchange for which Contributor is entitled to receive an
aggregate of 320,000 8.75% Series C Cumulative Redeemable Preferred Units (the
"Series C Preferred Units") in the Partnership with the rights, preferences,
exchange and other rights, voting powers and restrictions, limitations as to
distributions, qualifications and terms and conditions as set forth in the
Partnership Agreement, as amended hereby;
WHEREAS, Contributor desires to become a party to the Partnership
Agreement as a Limited Partner and to be bound by the terms, conditions and
other provisions of the Partnership Agreement;
WHEREAS, the Partnership Agreement is hereby amended (the
"Amendment") to reflect (i) the issuance of the Series C Preferred Units, (ii)
the admission of Contributor as a Limited Partner and holder of 320,000 Series
C Preferred Units, and (iii) other matters described herein;
WHEREAS, pursuant to Section 11.4.C of the Partnership Agreement,
the General Partner has approved the restatement of the Schedule of Partners
set forth on EXHIBIT A to the Partnership Agreement (the "Schedule of
Partners") that reflects the current composition of the Partners of the
Partnership; and
WHEREAS, pursuant to Section 4.2 of the Partnership Agreement, the
General Partner is authorized to enter into this Fifth Amendment for purposes
of amending the Partnership Agreement to include the Amendment and the Schedule
of Partners attached hereto.
NOW, THEREFORE, pursuant to Sections 4.2 and 11.4.B of the
Partnership Agreement, the General Partner hereby amends the Partnership
Agreement as follows:
1. ISSUANCE OF PREFERRED UNITS. Pursuant to Section 4.2.A of the
Partnership Agreement, the Partnership hereby designates a new series of
Preferred Units as 8.75% Series C Cumulative Redeemable Preferred Units
("Series C Preferred Units") and the Series C Preferred Units shall have the
rights, preferences, exchange rights, voting powers and other restrictions,
limitations as to distributions, qualifications and terms and conditions
specified in the Partnership Unit Designation attached as SCHEDULE A to this
Amendment to the Partnership Agreement (which schedule shall be titled Schedule
C when attached to the Partnership Agreement).
1
2. SCHEDULE OF PARTNERS. The Schedule of Partners which is set
forth on EXHIBIT A to the Partnership Agreement is hereby deleted in its
entirety and replaced by the Schedule of Partners on EXHIBIT A attached to this
Amendment.
3. RATIFICATION. Except as expressly modified by this Amendment,
all of the provisions of the Partnership Agreement are hereby affirmed and
ratified and remain in full force and effect.
IN WITNESS WHEREOF, this Amendment has been duly executed by the
General Partner on behalf of the Partnership and the admitted Limited Partner
as of the day and year set forth below.
DATED: May 1, 2000 GENERAL PARTNER:
J.P. REALTY, INC.
By: /s/ G. Xxx Xxxxxxx
-------------------
Name: G. Xxx Xxxxxxx
Title: President
XXXXXXX XXXXX XXXXXX TAX ADVANTAGED EXCHANGE
FUND III, LLC
By: /s/ Xxxxx Xxxxxxx
--------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
SCHEDULE A
----------
Terms of 8.75% Series C Cumulative Redeemable Preferred Units
SECTION 1 DEFINITIONS. Capitalized terms that are used herein shall have
the same meanings as set forth in the attached Second Amended and Restated
Agreement of Limited Partnership of Price Development Company. Limited
Partnership (the "PARTNERSHIP AGREEMENT") or as otherwise set forth below:
(a) "AFFILIATE" means, 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.
(b) "CHARTER" means the Articles of Amendment and Restatement of the
Company, dated as of November 19, 1993, as originally filed as an Articles of
Incorporation with the Maryland State Department of Assessments and Taxation
(the "DEPARTMENT") on September 8, 1993. as amended by a Certificate of
Correction on October 22, 1993, as thereafter amended on October 27, 1993 and
by those certain Articles Supplementary filed with the Department on April 23,
1999, July 28, 1999 and May 1, 2000, and as further amended and restated from
time to time.
(c) "LIQUIDATION PREFERENCE" means, with respect to the Series C
Preferred Units, the sum, payable in U.S. dollars, of (i) $25.00 per Series C
Preferred Unit, plus (ii) the amount of any accumulated and unpaid Priority
Return (as hereinafter defined) with respect to such unit, whether or not
declared, to the date of payment.
(d) "PARITY PREFERRED UNITS" means any class or series of Partnership
Interests of the Partnership now or hereafter authorized, issued or outstanding
and expressly designated by the Partnership to rank on a parity with the Series
C Preferred Units (as hereinafter defined) with respect to distributions and
rights upon voluntary or involuntary liquidation, winding-up or dissolution of
the Partnership.
(e) "PRIORITY RETURN" means an amount, payable in U.S. dollars, equal to
8.75% per annum of the Liquidation Preference per Series C Preferred Unit,
commencing on the date of issuance of such Series C Preferred Unit, 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 on any Series C Preferred Unit Distribution Payment Date.
(f) "PTP" means a "publicly traded partnership" within the meaning of
Section 7704 of the Code.
(g) "SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, joint venture or other entity of which
a majority of (i) voting power of the voting equity securities or (ii) the
outstanding equity interests, is owned, directly or indirectly, by such person.
SECTION 2 DESIGNATION AND NUMBER. Pursuant to section 4.2 of the
Partnership Agreement, a series of Partnership Units in the Partnership
designated as the "8.75% Series C Cumulative Redeemable Preferred Units." (the
"SERIES C PREFERRED UNITS") is hereby established. The number of Series
Preferred Units shall be 320,000.
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 other Partnership Unit Designations executed under Section 4.2 of
the Partnership Agreement, holders of Series C Preferred Units shall be
entitled to receive the Priority Return when, as and if declared by the
Partnership acting through the General Partner. Such distributions shall be
cumulative, shall accrue from the original date of issuance of the Series C
Preferred Units and will be payable (i) quarterly (such quarterly periods for
purposes of
payment and accrual will be the quarterly periods ending on the dates
specified in this sentence and not calendar year quarters) in arrears, on
March 31, June 30, September 30, and December 31 of each year commencing on
June 30, 2000 and, (ii) in the event of a redemption of Series C Preferred
Units on the redemption date (each a "SERIES C PREFERRED UNIT DISTRIBUTION
PAYMENT DATE"). If any Series C Preferred Unit Distribution Payment Date is
not a Business Day (as hereinafter defined), then payment of the distribution
to be made on such date will made on the Business Day immediately preceding
such date with the same force and effect as if made on such date.
Distributions on the Series C Preferred Units will be made to the holders of
record of the Series C Preferred Units on the relevant record dates to be fixed
by the Partnership acting through the General Partner, which relevant record
dates to be fixed by the Partnership acting through the General Partner, which
record dates shall in no event exceed 15 Business Days prior to the relevant
Series C Preferred Unit Distribution Payment Date (the "SERIES C PREFERRED UNIT
PARTNERSHIP RECORD DATE").
(b) The term "BUSINESS DAY" means 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.
(c) PROHIBITION ON DISTRIBUTION. No distributions on Series C 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 indebtedness, prohibits such authorization, payment or setting
apart for payment or provides that such authorization, payment or setting apart
for payment would constitute a breach thereof or a default thereunder, or to
the extent that such authorization or payment shall be restricted or prohibited
by law.
(d) DISTRIBUTIONS CUMULATIVE. Distribution on the Series C 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 distributions and whether or not such distributions are
authorized. Accrued but unpaid distributions on the Series C Preferred Units
will accumulate as of the Series C 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 C preferred Unit Distribution Payment Date to
holders of record of the Series C Preferred Units on the record date fixed by
the Partnership acting through the General Partner which date shall not be more
than 15 Business Days prior to the payment date. Accumulated and unpaid
distributions will not bear interest.
(e) PRIORITY AS TO DISTRIBUTIONS. (i) So long as any Series C
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 C 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 C Preferred units, any Parity Preferred Units or
other acquisition for consideration of any Series C Preferred Units, any Parity
Preferred Units or any Junior Units, unless, in each case, all distributions
accumulated on all Series C Preferred Units and all classes and series of
outstanding Parity Preferred Units have been paid in full. The foregoing
sentence shall not prohibit (x) distributions payable solely in Junior Units,
(y) the conversion of Junior Units or Parity Preferred Units into Partnership
Interests ranking junior to the Series C Preferred Units, or (z) the redemption
of Partnership Interests corresponding to any Series C Preferred Stock, Parity
Preferred Stock or Junior Stock to be purchased by the General Partner pursuant
to Article NINTH 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 NINTH 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 C Preferred Units, all distributions authorized and
declared on the Series C 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 C 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 C 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.
(f) NO FURTHER RIGHTS. Holders of Series C Preferred Units shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of time full cumulative distributions described herein.
SECTION 4 LIQUIDATION PROCEEDS. (a) Subject to the rights of holders of
Parity Preferred Units with respect to rights upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, each holder of
Series C 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 such holder's Liquidation Preference;
provided, however, that in no event shall such amount exceed such holder's
Capital Account balance on the date of distribution. If, upon such voluntary or
involuntary liquidation, dissolution or winding-up, there are insufficient
assets to permit full payment of liquidating distributions to the holders of
Series C Preferred Units and any Parity Preferred Units as to rights upon
liquidating, dissolution or winding-up of the Partnership, all payments of
liquidation, distributions on the Series C Preferred Units and such Parity
Preferred Units shall be made so that the payments on the Series C Preferred
Units and such Parity Preferred Units shall in all cases bear to each other the
same ratio that the respective rights of the Series C Preferred Units and such
other Parity Preferred Units (which shall not include any accumulation in
respect of unpaid distributions for prior distribution periods if such Parity
Preferred Units do not have cumulative distribution rights) upon liquidation,
dissolution or winding-up of the Partnership bear to each other.
(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 30 and not more than 60 days
prior to the payment date stated therein, to each record holder of the Series C
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
Liquidation Preference to which they are entitled, the holders of Series C
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership.
(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 to, or the consolidation or merger or other
business combination of the Partnership with or into, any corporation, trust or
other entity (or of any corporation, trust or other entity with or into the
Partnership) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Partnership.
SECTION 5 OPTIONAL REDEMPTION. (a) RIGHT OF OPTIONAL REDEMPTION. The
Series C Preferred Units may not be redeemed prior to May 1, 2005. On or after
such date, the Partnership shall have the right to redeem the Series C
Preferred Units, in whole (but, not in part), at any time, upon not less than
30 nor more than 60 days' written notice, at a redemption price, payable in
cash, equal to the Liquidation Preference (the "SERIES C REDEMPTION PRICE").
(b) LIMITATION ON REDEMPTION. (i) The Series C Redemption Price (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
an additional capital contribution, or out of the sale of limited partnership
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 of
the General Partner), shares, participation or other ownership interest
(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 C Preferred Units unless all accumulated and unpaid
distributions have been paid on all Series C 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 he (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 C 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 C 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: (1) the redemption
date, (2) the Series C Redemption Price, (3) the aggregate number of Series C
Preferred Units to be redeemed, (4) the place or places where such Series C
Preferred Units are to be surrendered for payment of the Series C Redemption
Price, (5) that distributions on the Series C Preferred Units to be redeemed
will cease to accumulate on such redemption date and (6) that payment of the
Series C Redemption Price will be made upon presentation and surrender of such
Series C Preferred Units.
(ii) If the Partnership gives a notice of redemption in respect of
Series C 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 C Preferred Units being
redeemed funds sufficient to pay the applicable Series C Redemption Price and
will give irrevocable instructions and authority to pay such Series C
Redemption Price to the holders of the Series C Preferred Units upon surrender
of the Series C Preferred Units by such holders at the place designated in the
notice of redemption. On and after the date of redemption, distributions will
cease to accumulate on the Series C Preferred Units called for redemption,
unless the Partnership defaults in the payment thereof, if any date fixed for
redemption of Series C Preferred Units is not a Business Day, then payment of
the Series C Redemption Price payable on such date will he 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 falls
in the next calendar year, such payment will he 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 Series C Redemption Price
is improperly withheld or refused and not paid by the Partnership,
distributions on such Series C Preferred Units will continue to accumulate from
the original redemption date to the date of payment, in which case the actual
payment date will he considered the date fixed for redemption for purposes of
calculating the applicable Series C Redemption Price.
SECTION 6 VOTING RIGHTS. (a) GENERAL. Holders of the Series C
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 14.2 of the Partnership Agreement and in this Section 6.
(b) CERTAIN VOTING RIGHTS. So long as any Series C Preferred Units
remain outstanding, the Partnership shall not, without the affirmative vote of
the holders of at least two-thirds of the Series C 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 C 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 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, other than the
General Partner to the extent the issuance of such interests was to allow the
General Partner to issue corresponding preferred stock to persons who are not
Affiliates of the Partnership; or (iii) either (A) exchange shares with,
consolidate with, 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, whether by merger,
consolidation or otherwise, that would adversely affect the powers, special
rights, preferences, privileges or voting power of the Series C Preferred Units
or the holders thereof: PROVIDED, HOWEVER, that with respect to the occurrence
of a share exchange, merger, consolidation or a sale or lease of all of the
Partnership's assets as an entirety, so long as (1) the Partnership is the
surviving entity and the Series C 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 C Preferred
Units for other interests in such entity having substantially the same terms
and rights as the Series C 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
adversely affect such rights, privileges or voting powers of the holders of the
Series C 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, in each case ranking (y) junior to the Series
C 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 C Preferred Units with respect to payment of distributions or the
distribution of assets upon liquidation, dissolution or winding-up, to the
extent such Partnership Interest are not issued to an affiliate of the
Partnership, other than the General Partner to the extent the issuance of such
interests was to allow the General Partner to issue corresponding preferred
stock to persons who are not Affiliates of the Partnership, such issuance shall
not be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers. In the event of any conflict between the
provisions of Section 14.2 of the Partnership Agreement and the provisions of
this SECTION 6, the provisions of this SECTION 6 shall control.
SECTION 7 TRANSFER RESTRICTIONS. The Series C Preferred Units shall be
subject to all of the provisions of Article 11 of the Partnership Agreement.
Article 11 is hereby amended by adding a new Section 11.8 to the end of Article
11 as follows:
"11.8 Notwithstanding anything to the contrary contained in Article 11
hereof, (i) a transfer of all or any portion of the Series C Preferred Units
shall not require the consent of the General Partner; (ii) the transferee of
such transfer shall be admitted to the Partnership as a Limited Partner on the
closing date of such transfer; (iii) the Partnership and the General Partner
shall treat such transferee as the absolute owner of the interest transferred
in all respects; and (iv) the General Partner shall not have the right to
require any transferor or transferee of such Series C Preferred Units to have
such Series C Preferred Units redeemed; provided that the foregoing shall not
apply to (x) a transfer in violation of Section 11.3C
hereof, (y) a transfer that would create a risk that the Partnership would
fail to qualify for the private placement or lack of actual trading safe
harbor of Notice 88-75 or Treasury Regulation *1.7704-1, and (z) a transfer
to any Person that is a competitor (as reasonably determined by the General
Partner) of the General Partner."
SECTION 8 EXCHANGE RIGHTS. (a) RIGHT TO EXCHANGE. (i) Subject in all
cases to the ownership limitations set forth in the Charter, Series C Preferred
Units will he exchangeable in whole (but not in part) at any time on or after
the tenth (10th) anniversary of the date of issuance, at the option of the
holders thereof, for authorized but previously unissued shares of 8.75% Series
C Cumulative Redeemable Preferred Stock of the General Partner (the "SERIES C
PREFERRED STOCK") at an exchange rate of one share of Series C Preferred Stock
for one Series C Preferred Unit, subject to adjustment as described below (the
"SERIES C EXCHANGE PRICE"), provided that the Series C Preferred Units will
become exchangeable at any time, in whole (but not in part), at the option of
the holders of Series C Preferred Units for Series C Preferred Stock if (x) at
any time full distributions shall not have been timely made on any Series C
Preferred Unit with respect to six prior quarterly distribution periods,
whether or not consecutive; PROVIDED, HOWEVER, that a distribution in respect
of Series C Preferred Units shall be considered timely made if made within two
Business Days after the applicable Series C Preferred Units 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, (y) upon receipt by a holder or holders of Series C Preferred
Units of (1) notice from the General Partner that the General Partner or a
Subsidiary of 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 C 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, or (z) the holders of the Series C Preferred Units determine and the
General Partner confirms that such holders hold or will hold 20% or more of the
profits and capital interests of the Partnership: PROVIDED, that (i) in the
case of clause (z), the Series C Preferred Units will be exchangeable only to
the extent necessary to reduce the holdings of the holders of the Series C
Preferred Units to less than 20% of the profits and capital interests of the
Partnership and (ii) if such notice and opinion described in clauses (1) and
(2) refers to a defined event, the Series C Preferred Units will become
exchangeable only after the defined event occurs; PROVIDED FURTHER, that in the
event any such exchange would result from application of clause (y)(2) above,
no exchange will he available to the holders of Series C Preferred Units if,
within 15 Business Days of the date of delivery of the opinion referred to in
clause (y)(2) above, the General Partner delivers to such holders an opinion
rendered by an outside nationally recognized independent counsel familiar with
such matters addressed to the General Partner, that upon the occurrence of such
defined event the Partnership will not or likely will not become a PTP. In
addition to and not in limitation of the foregoing, but subject to the
ownership limitations in the Charter, the Series C Preferred Units may be
exchanged for Series C Preferred Stock, in whole (but not in part), at the
option of any holder prior to the tenth (10th) anniversary of the issuance date
and after the third anniversary thereof if such holder of Series C Preferred
Units shall deliver to the General Partner either (i) a private letter ruling
addressed to such holder of Series C 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 C
Preferred Units at such earlier time would not cause the Series C Preferred
Units to be considered "stock and securities" within the meaning of
Section 351(c) of the Code for purposes of determining whether time holder of
such Series C Preferred Units is an "investment company" under Section 721(b)
of the Code if an exchange is permitted at such earlier date.
(ii) Notwithstanding anything to the contrary set forth in SECTION
8(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 (but not a portion) of the
outstanding Series C Preferred Units for cash in an amount equal to the
Liquidation Preference per Series C Preferred Unit. The General Partner may
exercise its option to redeem the Series C Preferred Units for cash pursuant to
this SECTION 8(A)(II) by giving each holder of record of Series C Preferred
Units notice of its election to redeem for cash, within 15 Business Days after
receipt of the Exchange Notice, by fax and registered mail, postage paid, at
time 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 60 days following
the receipt of the Exchange Notice, (B) the redemption price, (C) the place or
places where the Series C Preferred Units are to be surrendered for payment of
the redemption price, (D) that distributions on the Series C Preferred Units
will cease to accrue on such redemption date, (E) that payment of the
redemption price will he made upon presentation and surrender of time Series C
Preferred Units and (F) the aggregate number of Series C Preferred Units to be
redeemed.
(iii) If an exchange of all or a portion of Series C Preferred Units
pursuant to SECTION 8(A)(I) would violate the provisions on ownership
limitation of the General Partner set forth in Article NINTH of the Charter of
the General Partner with respect to the Series C Preferred Stock, the General
Partner shall give written notice thereof to each holder of record of Series C
Preferred Units, within 15 Business Days following receipt of the Exchange
Notice, by fax, and 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 C Preferred Units shall he entitled to exchange, pursuant to
the provisions of SECTION 8(B) a number of Series C Preferred Units which would
comply with the provisions on the ownership limitation of the General Partner
set forth in such Article NINTH of the Charter of the General Partner and any
Series C Preferred Units not so exchanged (the "EXCESS UNITS") shall be
redeemed by the Partnership for cash in an amount equal to the Liquidation
Preference. 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 he redeemed, which
date shall be no later than 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. In the event an exchange would result in Excess Units, as a condition
to such exchange each holder of such units agrees to provide representations
and covenants reasonably requested by the General Partner relating to (1) the
widely held nature of the interests in such holder, sufficient to assure the
General Partner that the holder's ownership of stock of the General Partner
(without regard to the limits described above) will not cause any individual to
own in excess of 5.0% of the stock of the General Partner; and (2) to the
extent such holder can so represent and covenant without obtaining information
from its owners, the holder's ownership of Units of the Partnership and its
affiliates.
(iv) The redemption of Series C Preferred Units described in SECTION
8(A)(II) AND (III) shall be subject to the provisions of SECTION 5 provided,
however, that the term "redemption price" in such Section shall he read to mean
the Liquidation Preference per Series C Preferred Unit being redeemed.
(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 fax and
by certified mail postage prepaid. The exchange of Series C Preferred Units,
or a specified portion thereof, may be effected after the fifth Business Day
following receipt by the General Partner of the Exchange Notice by delivering
certificates, if any, representing such Series C Preferred Units to be
exchanged together with, if applicable, written notice of exchange and a proper
assignment of such Series C Preferred Units to the office of the General
Partner maintained for such purpose. Currently, such office is located at 00
Xxxxxxx Xxxx-Xxx, Xxxx Xxxx Xxxx, Xxxx 00000. Each exchange will be deemed to
have been effected immediately prior to the close of business on the date on
which such Series C Preferred Units to be exchanged (together with all required
documentation) shall have been surrendered and notice shall have been received
by the General Partner as aforesaid and the
Exchange Price shall have been paid. Any Series C Preferred Stock issued
pursuant to this SECTION 8 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.
(ii) In the event of an exchange of Series C Preferred Units for
shares of Series C Preferred Stock, an amount equal to the accrued and unpaid
Priority Return, whether or not declared, to the date of exchange on any Series
C Preferred Units tendered for exchange shall (a) accrue on the shares of the
Series C Preferred Stock for which such Series C Preferred Units are exchanged,
and (b) continue to accrue on such Series C Preferred Units, which shall remain
outstanding following such exchange, with the General Partner as the holder of
such Series C Preferred Units. Notwithstanding anything to the contrary set
forth herein, in no event shall a holder of a Series C Preferred Unit that was
validly exchanged into Series C Preferred Stock pursuant to this section (other
than the General Partner now holding such Series C Preferred Unit), receive a
distribution from the Partnership, if such holder, after exchange, is entitled
to receive a distribution from the General Partner with respect to the share of
Series C Preferred Stock for which such Series C Preferred Unit was exchanged
or redeemed.
(iii) Fractional shares of Series C 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 C 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 subdivisions, combinations and
reclassification of the Series C 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 C Preferred Stock will be
converted into the right to receive shares of capital stock, other securities
or other property (including cash or any combination thereof), each Series C
Preferred Unit will thereafter be exchangeable into the kind and amount of
shares of capital stock and other securities and property (including cash or
any combination thereof) upon the consummation of such transaction by a holder
of that number of shares of Series C Preferred Stock or fraction thereof into
which one Series C 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.
SECTION 9 NO CONVERSION RIGHTS. Except as set forth in SECTION 8, the
holders of the Series C Preferred Units shall not have any rights to convert
such units into shares of any other class or series of stock or into any other
securities of, or interest in, the Partnership.
SECTION 10 NO SINKING FUND. No sinking fund shall be established for the
retirement or redemption of Series C Preferred Units.
SECTION 11 EXHIBIT A TO PARTNERSHIP AGREEMENT. In order to duly reflect
the issuance of the Series C Preferred Units provided for herein, the
Partnership Agreement is hereby further amended pursuant to Section 14.1.B
thereof by deleting Exhibit A thereto and replacing Exhibit A attached hereto
therefor.
SECTION 12 ALLOCATION OF GROSS INCOME. The following paragraph shall be
applied in conjunction with Section 6.2H of the Partnership Agreement:
The allocation of gross income to the Series C Preferred Units
pursuant to Section 6.2H for any Partnership Year shall be limited to the
excess, if
any, of Profits over Losses for all Partnership Years since
the issuance of the Series C Preferred Units (calculated solely for this
purpose as if Section 6.2H were not part of the Partnership Agreement and
without regard to Depreciation); PROVIDED, that the aggregate gross
income allocation to be made to the Class C Preferred Units and any other
Parity Preferred Units subject to a similar limitation shall not exceed
the relevant amount of Profits over Losses available to be allocated to
all such Parity Preferred Units.
EXHIBIT A
---------
PARTNERS AND PARTNERSHIP INTERESTS
----------------------------------
Partnership Percentage
Name of Partner Units Interest
----------------------------------------------------------------------------------------------------------
GENERAL PARTNER
---------------
JP Realty, Inc.
00 Xxxxxxx Xxxx-Xxx
Xxxx Xxxx Xxxx, Xxxx 00000 16,219,290 81.68727%
LIMITED PARTNERS
----------------
Boise Mall Investment Company, Ltd. 824,411 4.15208%
Xxxxx, Xxxx 125 0.00063%
Xxxxxxxxxxx, Xxxx 150 0.00076%
Xxxxx, Xxxxx 320 0.00161%
Cache Valley Mall Partnership, Ltd. 328,813 1.65604%
Xxxxxxxx, Xxxxx 100 0.00050%
Xxxxxxx, Xxx 100 0.00050%
Xxxxxxx, Xxxxx 35,460 0.17859%
Xxxxxxx, Xxxx 765 0.00385%
Xxxxxxx, Xxxxx 1,531 0.00771%
Xxxxxx, Xxxx 24 0.00012%
East Ridge Partnership 100 0.00050%
Xxxxxx, Xxxx 320 0.00161%
Fairfax Holding, LLC 786,226 3.95977%
Xxxxx, Xxxx 5,486 0.02763%
Xxxxxxx, G. Rex 3,680 0.01853%
Xxxx, Xxxxxxx 6,817 0.03433%
Xxxxxxxx, Xxxxx 100 0.00050%
Hall Investment Company 10,204 0.05139%
Xxxxxx, Xxxxxxx 5,102 0.02570%
JCP Realty, Inc. 350,460 1.76507%
KFC Advertising 5,487 0.02763%
Xxxxxx, Xxxx 125 0.00063%
Xxxxxx, Xxxx 25 0.00013%
King American Hospital, Ltd. 63,424 0.31943%
King Provo, Ltd. 64,872 0.32672%
Xxxx, Xxxxxx X. 6,244 0.03145%
Xxxxxxxxxx, Xxxx X. 214 0.00108%
Xxxxxx, Xxx 100 0.00050%
North Plains Development Company, Ltd. 19,033 0.09586%
Partnership Percentage
Name of Partner Units Interest
----------------------------------------------------------------------------------------------------------
North Plains Land Company, Ltd. 1,758 0.00885%
Xxxxx, Xxxx 1,894 0.00954%
Xxxxx, Xxxxx 125 0.00063%
Xxxxxxxx, Xxxxxx X. 692 0.00349%
Pine Ridge Development Company, Ltd. 77,641 0.39103%
Pine Ridge Land Company, Ltd. 5,176 0.02607%
Xxxxx, Xxxx 200 0.00101%
Xxxxx, Xxxxxx 350 0.00176%
Price 800 Company, Ltd. 156,615 0.78878%
Price Commerce, Ltd. 63,423 0.31943%
Price East Bay, Ltd. 37,157 0.18714%
Price Xxxxxx Xxxxxx Company, Ltd. 17,497 0.08812%
Price Fremont Company, Ltd. 166,315 0.83763%
Price Glendale Company, Ltd. 3,935 0.01982%
Price Orem Investment Company, Ltd. 66,747 0.33617%
Price Plaza 800 Company, Ltd. 12,199 0.06144%
Price Riverside Company, Ltd. 10,983 0.05532%
Price Rock Springs Company, Ltd. 11,100 0.05590%
Price Taywin Company, Ltd. 106,381 0.53578%
Xxxxx, Xxxxxx 100 0.00050%
Red Cliff Mall Investment Company 167,379 0.84299%
Roebbelen Engineering 72,000 0.36262%
Xxxxxxx, Xxx 23,371 0.11771%
Taycor Ltd. 35,462 0.17860%
Tech Park II Company, Ltd. 4,929 0.02482%
Xxxx, Xxxx 160 0.00081%
Xxxxxxx, Xxxxx 35,460 0.17859%
Xxxxxxx, Xxxx 5,102 0.02570%
Xxxxxxx, Xxx 5,306 0.02672%
Xxxxxxx, Xxxx 10,000 0.05036%
YSP 16,787 0.08455%
--------------------- ---------------------
Total 19,855,352 100.00000%
--------------------- ---------------------
SSB Tax Advantaged Exchange Fund I, LLC 510,000 100.00000%{1}
--------------------- --------------------
Belcrest Realty Corporation 2,575,000 73.02632%{2}
Belair Real Estate Corporation 1,255,000 26.97368%{2}
--------------------- --------------------
3,800,000 100.00000%
--------------------- --------------------
SSB Tax Advantaged Exchange Fund III, LLC 320,000 100.00000%{3}
--------------------- --------------------
1. Represents all of the Series A Preferred Units issued by the Partnership.
2. Represents a percentage of the Series B Preferred Units issued by the
Partnership.
3. Represents all of the Series C Preferred Units issued by the Partnership.
