Exhibit 10.103
___________________________________________
CERTIFICATE OF DESIGNATION
OF
SERIES A
CONTINGENT NON-PARTICIPATING PREFERRED
OPERATING PARTNERSHIP UNITS
OF
LIMITED PARTNERSHIP INTEREST
OF
XXXX-XXXX REALTY, L.P.
____________________________________________
Series A Contingent Non-Participating Preferred Units
A series of 11,895 Series A Contingent Non-Participating Operating
Partnership Units of Limited Partnership Interests, par value $0.001 per
unit, of Xxxx-Xxxx Realty, L.P. (the "Company") shall be created and be
designated "Series A Contingent Non-Participating Preferred Units" having the
following rights and preferences:
DESIGNATION OF SERIES A CONTINGENT NON-PARTICIPATING PREFERRED UNITS.
The rights, preferences, powers, privileges and restrictions, qualifications
and limitations granted to or imposed upon the Series A Contingent
Non-Participating Preferred Units (referred to hereinafter sometimes as the
"Designations") shall be as set forth below. Capitalized terms used and not
otherwise defined herein shall have the meanings set forth in the Company
Partnership Agreement, dated as of August 31, 1994, as amended as of January
16, 1997 and as of December 11, 1997 (the "Partnership Agreement"). The
Partnership Agreement is on file at the principal place of business of the
Company and copies will be made available on request and without cost to any
unit holder of the Company so requesting.
1. Stated Value. The stated value of the Series A Contingent
Non-Participating Preferred Units shall be zero.
2. Distributions. The Series A Contingent Non-Participating Preferred
Units shall not receive any distributions from the Company; provided,
however, that upon conversion of Series A Contingent Non-Participating
Preferred Units into Series A Preferred Units (as defined
below) as set forth herein, on the date immediately following the Conversion
Date (as defined below) that a distribution is declared and paid on Series A
Preferred Units (the "Initial Distribution"), holders of Series A Preferred
Units received pursuant to the conversion of Series A Contingent
Non-Participating Preferred Units shall be entitled to receive the Initial
Distribution on a pro rata basis based upon the number of days during that
calendar quarter preceding the date of the Initial Distribution that the
Conversion Date occurred.
3. Liquidation. The Series A Contingent Non-Participating Preferred
Units shall have no preference as to assets over any class of common units or
class of preferred units of the Company in the event of the voluntary or
involuntary liquidation, dissolution or winding up of the Company.
4. Conversion of Series A Contingent Non-Participating Preferred Units.
(i) At any time during the period commencing on the date hereof and
ending on the two year anniversary of the date hereof (or, in the event the
Extension Option (as defined in the Agreement (as defined below)) is
exercised, the four year anniversary of the date hereof) each Series A
Contingent Non-Participating Preferred Unit shall be automatically and
immediately converted into fully paid and nonassessable Series A Preferred
Limited Partnership Interests of the Company ("Series A Preferred Units")
upon the completion and satisfaction of the terms and conditions specified
and set forth in the Contribution and Exchange Agreement, dated as of
September 18, 1997, as amended by the First Amendment, dated as of the date
hereof (as amended, the "Agreement") by and among the MK Contributors (as
defined therein), the MK Entities (as defined therein), the Patriot
Contributors (as defined therein), the Patriot Entities (as defined therein),
Patriot American Management and Leasing Corp., the Company and Cali Realty
Corporation, a Maryland Corporation (with such date being referred to as the
"Conversion Date").
(ii) Mechanics of Conversion. As promptly as practicable after the
conversion of the Series A Contingent Non-Participating Preferred Units
pursuant to the terms hereof, the Company shall issue and shall deliver to
the holders of the Series A Contingent Non-Participating Preferred Units
subject to the conversion (i) a certificate representing the number of Series
A Preferred Units to which the Series A Contingent Non-Participating
Preferred Units were converted in accordance with the terms hereof and (ii)
if less than all outstanding Series A Contingent Non-Participating Preferred
Units were so converted, upon submission to the Company of the certificate or
certificates representing the Series A Contingent Non-Participating Preferred
Units held by such holder immediately prior to the conversion, a new
certificate evidencing the Series A Contingent Non-Participating Preferred
Units held by such holder immediately following the conversion (until such
time as such certificate or certificates are submitted to the Company, the
certificate or certificates representing the Series A Contingent
Non-Participating Preferred Units held by a holder immediately prior to the
conversion shall be deemed to represent the number of Series A Contingent
Non-Participating Preferred Units held by such holder immediately following
the conversion). Series A Preferred Units received pursuant to conversion
shall be deemed to have been issued and the holder or any other person so
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designated shall be deemed for all purposes (other than with respect to the
Initial Distribution) to have become a holder of record of such Series A
Preferred Units as of the date hereof.
(iii) Reservation of Series A Preferred Units Issuable Upon
Conversion. The Company shall at all times reserve and keep available out of
its authorized but unissued Series A Preferred Units, solely for the purpose
of effecting the conversion of the Series A Contingent Non-Participating
Preferred Units, such number of its Series A Preferred Units as shall from
time to time be sufficient to effect the conversion of all then outstanding
Series A Contingent Non-Participating Preferred Unit and if at any time the
number of authorized but unissued Series A Preferred Units shall not be
sufficient to effect the conversion of all then outstanding Series A
Contingent Non-Participating Preferred Units, the Company will take such
action as may be necessary to increase its authorized but unissued Series A
Preferred Units to such number as shall be sufficient for such purpose.
D. Status of Converted Units. In the event any Series A Contingent
Non-Participating Preferred Units shall be converted as contemplated by this
Certificate of Designation, the units so converted shall be canceled, and
shall not be issuable by the Company as Series A Contingent Non-Participating
Preferred Units.
5. No Reissuance. Any Series A Contingent Non-Participating Preferred
Unit exchanged, redeemed, purchased or otherwise acquired by the Company in
any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof.
6. Voting Rights. Series A Contingent Non-Participating Preferred
Units shall have no voting rights with respect to any matter relating to the
Company regardless of whether any such matter is required or permitted to be
submitted to the holders of Series A Preferred Units for their approval.
7. Rank and Limitations of Series A Contingent Non-Participating
Preferred Units. All units of Series A Contingent Non-Participating
Preferred Units shall rank equally with each other unit of Series A
Contingent Non-Participating Preferred Units and shall be identical in all
respects.
December 11, 1997 XXXX-XXXX REALTY, L.P.
By: Xxxx-Xxxx Realty Corporation, its
General Partner
By: ____________________________
Name:
Title:
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