Exhibit 3.2
THIRD AMENDMENT TO THE
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
FFP PARTNERS, L.P.
This Third Amendment (this "Amendment") to the Amended and Restated
Agreement of Limited Partnership of FFP Partners, L.P. (the "Partnership") is
effective as of the 28th day of December, 1997, by and among FFP Partners
Management Company, Inc. a Delaware corporation, as the outgoing General
Partner of the Partnership ("FFPMC"), FFP Real Estate Trust, a Texas real
estate investment trust, as the incoming General Partner (the "REIT") and the
Limited Partners of the Partnership as reflected on the records of the
Partnership.
The Partnership was formed by the filing of a certificate of limited
partnership with the Secretary of State of Delaware on December 31, 1986.
The agreement of limited partnership was amended and restated on May 21,
1987, and further amended by the First Amendment to the Amended and Restated
Agreement of Limited Partnership dated August 14, 1989, and the Second
Amendment to the Amended and Restated Agreement of Limited Partnership dated
July 12, 1991, and as it currently exists is referred to as the "Partnership
Agreement." Terms used in this Amendment and not otherwise defined herein
shall have the meanings given them in the Partnership Agreement.
FFPMC is now the General Partner of the Partnership.
The Board of Directors of FFPMC has approved a restructuring of the
Partnership, as a result of which, upon the occurrence of certain later
events, the REIT will become the General Partner of the Partnership and
Limited Partners will be able to have their Units redeemed for cash or Units
of the REIT, in the discretion of the REIT.
To facilitate the operation and trading of the REIT, to the benefit of
the Limited Partners, the Board of Directors of FFPMC has approved these
amendments to the Agreement.
Limited Partners whose Percentage Interests constitute at least the
minimum amount of Percentage Interests necessary to approve the amendments
have approved the amendments.
FFPMC, acting on behalf of itself and on behalf of the Limited Partners
pursuant to the power of attorney contained in Section 1.4 of the Partnership
Agreement, and the REIT, as the incoming General Partner, therefore desire to
amend the Amended and Restated Agreement of Limited Partnership pursuant to
Article XV thereof.
NOW THEREFORE, the Agreement is amended as follows:
1. Article II, "Definitions," is hereby amended by the inclusion of or
changes to the following terms:
"Adoption Date" means the effective date of the REIT's
election to be taxed as a real estate investment trust for
purposes of the Code, as determined by the Trust Managers of the
REIT by duly adopted resolution.
"Associated Persons" means (i) a Trust Manager, director,
officer or employee of the REIT, the General Partner or the
Partnership; (ii) any entity in which such Person directly or
indirectly owns more than a 10% interest; (iii) any trust or
estate in which such Person has a substantial beneficial interest
or a to which such Person serves as trustee; or (iv) any member
of the immediate family of such Person.
"Cash Amount" means an amount of cash equal to the REIT
Share Price on the Valuation Date of the REIT Shares Amount.
"Conversion Factor" means 1.0; provided, however, that if
the REIT (i) declares or pays a dividend on its outstanding REIT
Shares in REIT Shares or makes a distribution to all holders of
its outstanding REIT Shares in REIT Shares, (ii) subdivides its
outstanding REIT Shares or (iii) combines its outstanding REIT
Shares into a smaller number of REIT Shares, the Conversion
Factor shall be adjusted by multiplying the Conversion Factor
then in effect by a fraction, the numerator of which shall be the
number of REIT Shares issued and outstanding on the record date
for such dividend or distribution or the effective date for such
subdivision or combination (assuming for such purposes that such
dividend or distribution or such subdivision or combination
occurred as of such time), and the denominator of which shall be
the actual number of REIT Shares (determined without the above
assumption) issued and outstanding on the record date for such
dividend or distribution or the effective date for such
subdivision or combination. Any adjustment to the Conversion
Factor shall become effective immediately after the record date
for such dividend or distribution or the effective date of such
subdivision or combination.
"Declaration of Trust" means the Declaration of Trust of
the REIT, as amended from time to time in accordance with its
terms.
"Effective Date" means the date of this Amendment.
"General Partner" means the REIT, or its successor in its
capacity as general partner of the Partnership.
"Independent Trust Manager" means a Trust Manager who is
not an employee of the REIT or of any Affiliate of the REIT.
"New Securities" means (i) for the Partnership, any
additional Partnership Interests or rights, options, warrants or
convertible or exchangeable securities having the right to
subscribe for or purchase Partnership Interests issued after the
Effective Date and (ii) for the REIT, any additional REIT Shares
(other than REIT Shares issued pursuant to Section 7.6) or
rights, options, warrants or convertible or exchangeable
securities having the right to subscribe for or purchase REIT
Shares issued after the Effective Date.
"Operating Partnership" means FFP Properties, L.P. and any
other partnerships, corporations, limited liability companies or
other entities through which the Partnership does business.
"Properties" means interests in the Operating Partnership
and other interests in real property acquired by the Partnership
from time to time.
"QRS" means any "qualified REIT subsidiary" as defined in
Section 856(i)(2) of the Code.
"Redeeming Partner" has the meaning set forth in Section
7.6(a).
"Redemption Amount" means the Cash Amount or REIT Shares
Amount, as determined by the General Partner in its sole and
absolute discretion. A Redeeming Partner shall have no right,
without the REIT's consent, to receive the Redemption Amount in
the form of the REIT Shares Amount.
"Redemption Notice" means the Redemption Notice
substantially in the form of Exhibit A to this Agreement.
"Redemption Right" shall have the meaning set forth in
Section 7.6(a).
"Real Estate Investment Trust" means a real estate
investment trust under section 856 of the Code.
"REIT" means FFP Real Estate Trust, a Texas real estate
investment trust.
"REIT Common Share" means common shares, par value $0.01 of
the REIT.
"REIT Preferred Share" means preferred shares, par value
$0.01 of the REIT
"REIT Share" means either a REIT Common Share or a REIT
Preferred Share, as the context requires.
"REIT Share Price" means, as of any date of determination
(a) if the REIT Shares are listed or admitted to trading on one
or more National Securities Exchanges, the average of the last
reported sale price per REIT Share regular way, or, in case no
such reported sale has taken place on any such day, the average
of the last reported bid and asked prices per REIT Share regular
way, in either case on the principal National Securities Exchange
on which the REIT Shares are listed or admitted to trading, for
the four trading days immediately preceding the date of
determination, (b) if the REIT Shares are not listed or admitted
to trading on a National Securities Exchange but are quoted on
NASDAQ, the average of the closing bid price per REIT Share for
the four trading days immediately preceding such date of
determination, as furnished by the National Quotation Bureau
Incorporated, or other such nationally recognized quotation
service as may be selected by the General Partner for such
purpose if said Bureau is not at the time furnishing quotations,
or (c) if the REIT Shares are not listed for trading on a
National Securities Exchange or quoted by NASDAQ, an amount equal
to the fair market value of a REIT Share as of such date of
determination, as determined by the General Partner using any
reasonable method of valuation.
"REIT Shares Amount" shall mean a number of REIT Shares
equal to the product of the number of Shares offered for
redemption by a Redeeming Partner, multiplied by the Conversion
Factor; provided, however, that if the REIT issues to all holders
of REIT Shares rights, options, warrants or convertible or
exchangeable securities entitling the shareholders to subscribe
for or purchase the REIT Shares or any other securities or
property, the value of which is not included in the value of the
REIT Shares (collectively, the "Rights") then the REIT Shares
Amount shall also include the Rights that a holder of that number
of REIT Shares would be entitled to receive.
"REIT Termination Date" means the first day after the date
on which at least a majority of the Independent Trust Managers
determine by duly adopted resolution that it is no longer in the
best interests of the REIT to attempt to qualify as a real estate
investment trust.
"Specified Redemption Date" means the tenth Business Day
after receipt by the General Partner of a Redemption Notice.
"Trust Managers" means the trust managers of the REIT, as
elected and qualified from time to time.
"Valuation Date" means the date of receipt by the REIT of a
Redemption Notice or, if such date is not a Business Day, the
first Business Day thereafter.
2. Article II, "Definitions," shall be amended, on the Adoption Date, by
deleting the definition "Unit Price" in its entirety and, thereafter, all
references in the Partnership Agreement to Unit Price shall be deemed to be
references to REIT Share Price.
3. Article III, "Purpose," is hereby deleted in its entirety and replaced
by the following:
"(a) Purpose. The purpose and business of the Partnership
shall be any business which may be lawfully conducted by a
limited partnership organized pursuant to the Delaware Act,
including, without limitation, directly or indirectly, the
(i) owning, operating, maintaining, administering, developing,
holding, improving, rehabilitating, redeveloping, renovating,
expanding, leasing, mortgaging, selling, exchanging, disposing
of, and generally dealing in and with, real estate and related
assets and any other property owned by the Partnership,
(ii) financing or refinancing for any of the foregoing purposes,
or for any other purpose in furtherance of, or necessary,
convenient, or incidental to the business or requirements of the
Partnership, (iii) seeking to acquire, acquiring, obtaining
options or other rights to acquire (pursuant to a purchase for
cash and/or other consideration, exchange, merger, contribution
to the capital of the Partnership, or otherwise) interests in, or
in Persons owning, or owning an interest or interests in property
or properties in anticipation of developing same, or any other
property as shall be specifically, in all such cases, designated
from time to time by the REIT, (iv) holding an interest as a
partner (general and/or limited), member or shareholder in a
management leasing, development, administrative or other service
company, including interests incidental to such interests, and
(v) engaging in any other activities (including the ownership of
property that is in furtherance of or necessary or incidental or
related to any of the foregoing).
(b) Real Estate Investment Trust Requirements.
Notwithstanding anything to the contrary contained in this
Agreement, from the Adoption Date and until the REIT Termination
Date and for so long as the REIT is a Partner, the Partnership
shall operate in such a manner and the Partnership shall take or
omit to take all actions as may be necessary (including making
appropriate distributions from time to time), so as to permit the
REIT (i) to continue to qualify as a Real Estate Investment Trust
under Sections 856 through 860 of the Code so long as such
requirements exist and as such provisions may be amended from
time to time, or corresponding provisions of succeeding law (the
"REIT Requirements"), and (ii) to minimize its exposure to the
imposition of an excise tax under Section 4981(a) of the Code or
a tax under Section 857(b) of the Code, so long as such taxes may
be imposed and as such provisions may be amended from time to
time, or corresponding provisions of succeeding law, each of (i)
and (ii) to at all times be determined (a) as if the REIT's sole
asset is its Partnership Interest, and (b) without regard to the
action or inaction of the REIT with respect to distributions (by
way of dividends or otherwise) and the timing thereof."
4. Article IV, "Capital Contributions," is hereby amended to include a new
Section 4.11 in its entirety as follows:
"4.11 New Securities. Notwithstanding anything to the contrary in this
Agreement:
(a) New Securities of the Partnership may not
be issued to the General Partner unless either (1)(A)
the New Securities of the Partnership are issued in
connection with the grant, award or issuance of New
Securities of the REIT that have designations,
preferences and other rights such that the economic
interests attributable to such New Securities of the
REIT are substantially similar to the designations,
preferences and other rights of the New Securities of
the Partnership issued to the REIT and (B) the REIT
shall make a capital contribution to the Partnership
in an amount equal to the proceeds, if any, raised in
connection with the issuance of such New Securities
of the REIT (subject to actual or deemed
reimbursement of any expenses, including underwriting
discount, commissions, or fees by the Partnership to
the General Partner pursuant to Section 6.5), or (2)
the New Securities of the Partnership are issued to
all Partners in proportion to their respective
Percentage Interests in the Partnership.
(b) The REIT may not grant, award or issue
New Securities of the REIT other than to all holders
of REIT Shares unless (i) the REIT shall cause the
Partnership to issue to the REIT New Securities of
the Partnership having designations, preferences and
other rights, all such that the economic interests
are substantially the same as those of the New
Securities of the REIT; and (ii) the REIT makes a
capital contribution to the Partnership of the
proceeds from the grant, award or issuance of such
New Securities of the REIT (subject to actual or
deemed reimbursement of any expenses, including
underwriting discount, commission or fees by the
Partnership to the REIT pursuant to Section 6.5).
Without limiting the foregoing, the REIT is expressly
authorized to grant, award or issue New Securities
for less than fair market value, and to cause the
Partnership to issue to the REIT corresponding
Partnership Interests, so long as the REIT concludes
in good faith that such issuance is in the best
interests of the Partnership."
5. Article V, "Allocation and Distribution," is hereby amended as follows:
Section 5.1(a) is hereby replaced in its entirety with the following:
"For purposes of maintaining the Capital Accounts and in determining
the rights of the Partners among themselves, except as otherwise provided in
this Section 5.1, Operating Income, Operating Loss, and all items of income
gain, loss and deduction from a Terminating Capital Transaction recognized
during a fiscal year of the Partnership shall be allocated among the Partners
in accordance with their respective Percentage Interests."
Section 5.3(a) is hereby replaced in its entirety with the following:
"(a) The General Partner may from time to time in its sole discretion
cause the Partnership to distribute cash, Units, and other property to the
Partners in accordance with their Percentage Interests; provided, however,
that the proceeds from a Terminating Capital Transaction shall be distributed
solely in accordance with Article XIV, after the allocation of any item of
income, gain, loss or deduction with respect thereto and concomitant
adjustment in the Partners' Capital Accounts as a result thereof.
Notwithstanding the foregoing, from the Adoption Date and until the REIT
Termination Date, the REIT shall use its best efforts to cause the
Partnership to distribute sufficient amounts of cash to the REIT to enable
the REIT to pay shareholder dividends that will (a) satisfy the distribution
requirements for qualification as a Real Estate Investment Trust as set forth
in Section 857 of the Code and (b) avoid any federal income or excise tax
liability being imposed on the REIT by the Code; provided, however, that in
no event may a Partner receive a distribution of cash with respect to a Unit
if such Partner is entitled to receive a distribution of such cash with
respect to a REIT Share for which such Unit has been redeemed or exchanged."
Sections 5.3(c) and (d) are hereby deleted in their entirety.
Effective on the Adoption Date, Section 5.3(e) is deleted in its
entirety.
6. Article VI, "Management and Operation of Business," is hereby amended
as follows:
The following is hereby added at the end of Section 6.1(a):
"and (xiii) the taking of any such other action, executing, acknowledging,
swearing to or delivering such other documents or instruments, and performing
any and all other acts that the General Partner deems necessary or
appropriate for the formation, continuation and conduct of the business and
affairs of the Partnership (including, without limitation, all actions
consistent with allowing the REIT at all times to qualify as a Real Estate
Investment Trust from the Adoption Date to the REIT Termination Date) and to
possess and enjoy all of the rights and powers of a general partner as
provided by the Act."
Section 6.5(b) is hereby replaced in its entirety with the following:
"(b) The REIT shall be reimbursed for all expenses, disbursements and
advances incurred or made in connection with the organization and/or
reorganization of the Partnership, the Operating Partnership and/or the REIT,
the qualification of the Partnership, the Operating Partnership, the REIT
and/or the General Partner to do business, any initial or subsequent offering
of REIT Shares by the REIT and any other issuance of additional Partnership
Interests, REIT Shares or New Securities."
The next to last sentence of Section 6.5(c) is hereby replaced with the
following:
"The Limited Partners acknowledge that the REIT's sole business is the
ownership of Partnership Interests and related assets in connection with the
operation of the Partnership and that all of the REIT's expenses are incurred
for the benefit of the Partnership."
Section 6.5(d) is hereby replaced in its entirety with the following:
"(d) The REIT in its sole discretion and without the approval of the
Limited Partners may propose and adopt benefit plans, including plans
involving the issuance of Partnership Interests, for the benefit of employees
of the General Partner, the REIT, the Operating Partnership or any Affiliate
of any of them in respect of services performed, directly or indirectly, for
the benefit of the Partnership, the REIT or the Operating Partnership."
Section 6.6 (a) is hereby replaced in its entirety with the following:
"(a) Other than by means of the REIT, the Partnership and the REIT's
interest in other Persons, including the Operating Partnership, no executive
officer of the General Partner, nor any Person in which such executive
officer directly or indirectly holds a controlling interest, may own, operate
or manage, or have any equity interest in any Person owning, operating or
managing convenience stores or retail gasoline facilities, unless such
ownership or operation is first approved by a majority of the disinterested
directors of the General Partner. The foregoing shall not be deemed to apply
to the ownership by any executive officer or any member of his family of
equity securities of any publicly-held entity in the same or similar business
as the REIT, the Partnership or the Operating Partnership, provided such
equity ownership by any such Person does not exceed 10% of the total
outstanding voting securities of such entity.
The following Subsections are added in their entirety:
"(c) Notwithstanding Subsections (a) and (b) of this Section 6.6, the
REIT may engage in any and all activities required by, and relating to, the
exchange of ownership on the Effective Date.
(d) During the term of the Partnership, the REIT shall not directly
or indirectly enter into or conduct any business, other than as the General
Partner or a Limited Partner and the management of the business of the
Partnership, and such activities as are incidental thereto, and the REIT
shall not directly or indirectly enter into or conduct any business other
than in connection with the making of loans or guarantee of loans made to the
Partnership as set forth in Section 6.8, the ownership, acquisition or
disposition of Partnership Interests as a General Partner or as a Limited
Partner, the ownership of the stock of one or more QRSs as may be necessary
to facilitate acquisitions by or loans for the Partnership and such
activities as are incidental thereto or to the business of the REIT, the
Partnership or any QRS. The REIT shall not incur any indebtedness for
borrowed money unless the proceeds from such borrowing are reloaned to the
Partnership on the same terms and conditions as the borrowing by the REIT.
The REIT shall not own any assets other than Partnership Interests as a
General Partner or as a Limited Partner and debt obligations of the
Partnership, stock and debt obligations of one or more QRSs formed for the
purposes set forth above and such bank accounts and similar instruments as
may be necessary to carry out the responsibilities set forth in its
organizational documents as in effect on the Effective Date of this Agreement.
(e) During the term of the Partnership, the REIT will not engage in
any action that would result in the REIT owning any real estate or
improvements thereon other than through the Partnership (or through an
interest in any Person that is directly or indirectly owned or controlled by
the Partnership and, except to the extent that the formation of one or more
QRSs is required to cause such Person to be classified as a partnership for
federal income tax purposes, the REIT's entire economic interest in such
Person is owned through the Partnership) or conduct any business other than
directly or indirectly through the Partnership.
(f) If the REIT purchases REIT Shares, then the REIT shall cause the
Partnership to purchase from the REIT that number of Units equal to the
product of the number of REIT Shares to be purchased by the REIT (and/or the
General Partner) multiplied by the Conversion Factor on the same terms and
for the same aggregate price that the REIT purchased such REIT Shares."
The following Section 6.12(c) is hereby added in its entirety:
"(c) From the Adoption Date and until the REIT Termination Date,
notwithstanding any other provisions of this Agreement or the Act, any action
of the REIT on behalf of the Partnership or any decision of the REIT to
refrain from acting on behalf of the Partnership, undertaken in the good
faith belief that such action or omission is necessary or advisable in order
(i) to protect the ability of the REIT to qualify as a real estate investment
trust or (ii) to allow the REIT to avoid incurring any liability for taxes
under Section 857 or Section 4981 of the Code, is expressly authorized under
this Agreement and is deemed approved by all of the Limited Partners."
Section 6.14, "Maintenance of Net Worth" is hereby deleted in its
entirety
7. Article VII, "Rights and Obligations of Limited Partners," is hereby
amended to include a new Section 7.6 in its entirety as follows:
7.6 Redemption Rights.
"a) (i) Except as provided in Sections 7.6 (b) and (c) and except as
may otherwise be prohibited by the Securities Act, on or at any time after
the Adoption Date and until the REIT Termination Date, each Limited Partner,
other than the REIT shall have the right (the "Redemption Right") to require
the Partnership to redeem on a Specified Redemption Date all or a portion of
the Units held by such Limited Partner at a redemption price equal to, and in
the form of the Cash Amount to be paid by the Partnership. The Redemption
Right shall be exercised pursuant to a Redemption Notice (a form of which is
attached as Exhibit A hereto) delivered to the REIT by the Limited Partner
who is exercising the Redemption Right (the "Redeeming Partner"); provided,
however, that the Partnership shall not be obligated to satisfy such
Redemption Right if the REIT purchases the Units subject to the Redemption
Notice pursuant to Section 7.6(a)(ii). A Limited Partner may not exercise
the Redemption Right for less than 100 Units or, if such Limited Partner
holds less than 100 Units, all of the Units held by such Limited Partner.
The Redeeming Partner shall have no right, with respect to any Units so
redeemed, to receive any distributions paid after the Specified Redemption
Date if the Partnership Record Date for that distribution is after the
Specified Redemption Date. The Assignee of any Limited Partner may exercise
the rights such Limited Partner has pursuant to this Section 7.6(a)(i) (in
which case the Assignee will be the "Redeeming Partner" for the purposes of
the rights and restrictions contained in this Section 7.6) and such Limited
Partner shall be deemed to have assigned such rights to such Assignee and
shall be bound by the exercise of such rights by such Limited Partner's
Assignee. In connection with any exercise of such rights by such Assignee on
behalf of such Limited Partner, the Redemption Amount shall be paid by the
Partnership directly to such Assignee and not to such Limited Partner.
(ii) Notwithstanding the provisions of Section 7.6(a)(i), a
Limited Partner or Assignee who exercises a Redemption Right shall be deemed
to have offered to sell the Units described in the Redemption Notice to the
REIT, and the REIT may, in its sole and absolute discretion, assume directly
and satisfy a Redemption Right by paying to the Redeeming Partner the
Redemption Amount on the Specified Redemption Date, whereupon the REIT shall
acquire the Units offered for redemption by the Redeeming Partner and shall
be treated for all purposes of this Agreement as the owner of such Units. If
the REIT shall exercise its right to satisfy the Redemption Right in the
manner described in the preceding sentence, the Partnership shall have no
obligation to pay any amount to the Redeeming Partner with respect to such
Redeeming Partner's exercise of the Redemption Right and each of the
Redeeming Partner and the Partnership, shall treat the transaction between
the REIT and the Redeeming Partner as a sale of the Redeeming Partner's
Partnership Units to the REIT for federal income tax purposes. Each
Redeeming Partner agrees to execute such documents as the REIT may reasonably
require in connection with the issuance of REIT Shares upon the Partner's
exercise of the Redemption Right. If the REIT elects to assume and satisfy
the Redemption Right, the REIT may deliver REIT Shares as payment of the
Redemption Amount to the Limited Partner only if the REIT Shares are
registered for sale to the public under applicable securities laws, to the
extent required.
(iii) Notwithstanding the provisions of Section 7.6(a)(i),a
Limited Partner or Assignee shall not be entitled to exercise a Redemption
Right pursuant to Section 7.6(a)(i) if the delivery of REIT Shares to such
Limited Partner or Assignee by the REIT on the Specified Redemption Date
pursuant to Section 7.6(a)(ii) (regardless of whether the REIT would, in
fact, exercise its rights under Section 7.6(a)(ii)) would cause such Limited
Partner or Assignee to violate the Ownership Limit or any other terms of the
REIT's Declaration of Trust. The REIT, in its sole and absolute discretion,
however, may elect to acquire such Units in exchange for the Cash Amount
attributable to such Units.
(iv) Notwithstanding the provisions of Section 7.6(a)(i), a
Limited Partner or Assignee shall not be entitled to exercise the Redemption
Right pursuant to Section 7.6(a)(i) if the delivery of REIT Shares to such
Limited Partner or Assignee by the REIT on the Specified Redemption Date
pursuant to Section 7.6(a)(ii) (regardless of whether the REIT would, in
fact, exercise its rights under Section 7.6(a)(ii)) would be prohibited under
applicable law.
(v) If the Redemption Right is satisfied by the REIT by the
delivery of REIT Shares, the Redeeming Partner shall be deemed to become a
holder of REIT Shares as of the close of business on the Specified Redemption
Date.
(b) Each Limited Partner and Assignee covenants and agrees with the
REIT that all Units delivered for redemption shall be delivered to the
Partnership or the REIT free and clear of all liens, and should any liens
exist or arise with respect to such Units, neither the Partnership, nor the
REIT shall be under any obligation to acquire the same. Each Limited Partner
and Assignee further agrees that, if any state or local property transfer tax
is payable as a result of the transfer of its Units to the Partnership or the
REIT, such Limited Partner or Assignee shall assume and pay such transfer
tax, and neither the Partnership nor the REIT shall have any obligation to
complete the transfer until such transfer tax has been paid.
(c) If more than one Unit shall be redeemed for REIT Shares at the
same time by the same Redeeming Partner, the number of full REIT Shares that
shall be issuable upon the exercise thereof shall be computed on the basis of
the aggregate number of REIT Shares represented by the Units so presented.
If any fraction of a REIT Share would be issuable upon the redemption of any
Units, the Partnership or the REIT shall pay an amount in cash equal to the
value of a REIT Share multiplied by such fraction.
(d) Nothing contained in this Agreement shall be construed as
conferring upon the holders of the Units the right to vote or to receive
dividends or other distributions or to consent or to receive notice as
shareholders in respect of any meeting of shareholders for the election of
Trust Managers or any other matter, or any rights whatsoever as shareholders
of the REIT prior to the issuance of REIT Shares on the Specified Redemption
Date. The REIT hereby agrees to reserve for issuance sufficient REIT Shares
to satisfy the Redemption Amount for all Limited Partners."
8. Article XI, "Transfer of Interests" is hereby amended by adding the
following Sections in their entirety as follows:
"11.9 Restrictions on Transfer of Units. Notwithstanding the terms of
this Article XI, after the date to be set forth by the Board of Trust
Managers (such date to be no earlier than the Adoption Date,) no outstanding
Unit may be sold, pledged, hypothecated or otherwise transferred to any
Person, other than to the REIT or the Partnership pursuant to Section 7.6, or
a pledge, hypothecation or encumbrance of Units by the REIT unless, prior to
such transfer, such Unit is exchanged for REIT Shares pursuant to the terms
of Section 7.6.
Section 11.10 Restrictions on Ownership, Transfer, Acquisition and
Redemption of Units.
(a) Sections 11.10 through 11.15 hereof shall be in effect until the
Adoption Date, after which date Sections 11.9 through 11.15 shall apply.
(b) Definitions. For purposes of Sections 11.10 and 11.11, the
following terms shall have the following meanings:
"Acquire" shall mean the acquisition of Beneficial or
Constructive Ownership of Units by any means, including, without limitation,
the exercise of any rights under any option, warrant, convertible security,
pledge or other security interest or similar right to acquire Units, but
shall not include the acquisition of any such rights unless, as a result, the
acquiror would be considered a Constructive Owner. The terms "Acquires" and
"Acquisition" shall have correlative meanings.
"Beneficiary" shall mean a beneficiary of the Excess Units Trust
as determined pursuant to paragraph (a) of Section 11.11.
"Closing Price" on any day shall mean the last sale price,
regular way on such day, or, if no such sale takes place on that day, the
average of the closing bid and asked prices, regular way, in either case as
reported on the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the American Stock
Exchange, or if the affected class or series of Units is not so listed or
admitted to trading on the American Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to
securities listed on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which the affected
class or series of Units is listed or admitted to trading or, if the affected
class or series of Units is not so listed or admitted to trading, the last
quoted price or, if not quoted, the average of the high bid and low asked
prices on NASDAQ or any other nationally recognized automated quotation
system then in use, or, if the affected class or series of Units is not so
quoted by any such system, the average of the closing bid and asked prices as
furnished by a professional market maker selected by the General Partner
making a market in the affected class or series of Units, or, if there is no
such market maker or such closing prices otherwise are not available, the
fair market value of the affected class or series of Units as of such day, as
determined by the General Partner in its discretion.
"Constructive Ownership" shall mean ownership of Units by a
Person who would be treated as an owner of such Units, either actually or
constructively, directly or indirectly, through the application of Section
318 of the Code, as modified by Section 7704(d)(3)(B) thereof. The terms
"Constructive Owner," "Constructively Own," "Constructively Owns" and
"Constructively Owned" shall have correlative meanings.
"Conversion Date" shall mean the first date that limited partners
of FFP Partners, L.P. are permitted or required to exchange units of FFP
Partners, L.P. for REIT Common Shares.
"Excess Units" shall mean Units exchanged as provided in
paragraph (d) of this Section 11.10.
"Excess Units Trust" shall mean the trust created pursuant to
paragraph (a) of Section 11.11.
"Excess Units Trustee" shall mean the Partnership as trustee for
the Excess Units Trust, and any successor trustee appointed by the Trust.
"Market Price" on any day shall mean the average of the Closing
Prices for the ten (10) consecutive Trading Days immediately preceding such
day (or those days during such 10-day period for which Closing Prices are
available).
"Ownership Limit" shall mean 4.9 percent of the outstanding Units
of the Partnership.
"Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Section 401(a) or 501(c)(17)
of the Code), a portion of a trust permanently set aside for or to be used
exclusively for the purposes described in Section 642(c) of the Code,
association, private foundation within the meaning of Section 509(a) of the
Code, joint stock company or other entity, or a group as that term is used
for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
"Purported Beneficial Holder" shall mean, with respect to any
event or transaction other than a purported Transfer or Acquisition which
results in Excess Units, the Person for whom the applicable Purported Record
Holder held the Units that were, pursuant to paragraph (c) of this Section
11.10, automatically exchanged for Excess Units upon the occurrence of such
event or transaction. The Purported Beneficial Holder and the Purported
Record Holder may be the same Person.
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer or Acquisition which results in Excess Units, the
purported beneficial transferee for whom the Purported Record Transferee
would have acquired Units if such Transfer or Acquisition had been valid
under paragraph (c) of this Section 11.10. The Purported Beneficial
Transferee and the Purported Record Transferee may be the same Person.
"Purported Record Holder" shall mean, with respect to any event
or transaction other than a purported Transfer or Acquisition which results
in Excess Units, the record holder of the Units that were, pursuant to
paragraph (c) of this Section 11.10, automatically exchanged for Excess Units
upon the occurrence of such an event or transaction. The Purported Record
Holder and the Purported Beneficial Holder may be the same Person.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer or Acquisition which results in Excess Units, the record
holder of the Units if such Transfer had been valid under paragraph (b) of
this Section 11.10. The Purported Record Transferee and the Purported
Beneficial Transferee may be the same Person.
"Trading Day" shall mean a day on which the principal national
securities exchange on which the affected class or series of Units is listed
or admitted to trading is open for the transaction of business or, if the
affected class or series of Units is not listed or admitted to trading, shall
mean any day other than a Saturday, Sunday or other day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close.
"Transfer" shall mean any sale, transfer, gift, hypothecation,
assignment, devise or other disposition of a direct or indirect interest in
Units or the right to vote or receive dividends on Units (including (i) the
granting of any option (including any option to acquire an option or any
series of such options) or entering into any agreement for the sale, transfer
or other disposition of Units or the right to vote or receive dividends on
Units or (ii) the sale, transfer, assignment or other disposition of any
securities or rights convertible into or exchangeable for Units, whether
voluntary or involuntary, of record, constructively or beneficially, and
whether by operation of law or otherwise. The terms "Transfers,"
"Transferred" and "Transferable" shall have correlative meanings.
(c) Ownership and Transfer Limitations.
(i) Notwithstanding any other provision of this Partnership
Agreement, except as provided in paragraph (j) of this Section 11.10 and
Section 11.11, from and after the Effective Date, no Person other than the
REIT shall Constructively Own Partnership Units in excess of the Ownership
Limit.
(ii) Notwithstanding any other provision of this Partnership
Agreement, except as provided in paragraph (j) of this Section 11.10 and
Section 11.12, from and after the Effective Date, any Transfer, Acquisition,
change in the capital structure of the Partnership, or other purported change
in Constructive Ownership of Units or other event or transaction that, if
effective, would result in any Person other than the REIT Constructively
Owning Units in excess of the applicable Ownership Limit shall be void ab
initio as to the Transfer, Acquisition, change in the capital structure of
the Partnership, or other purported change in Constructive Ownership or other
event or transaction with respect to that number of Units which would
otherwise be Constructively Owned by such Person in excess of the applicable
Ownership Limit, and none of the Purported Beneficial Transferee, the
Purported Record Transferee, the Purported Beneficial Holder or the Purported
Record Holder, as applicable, shall acquire any rights in that number of
Units.
(iii) Notwithstanding any other provision of this Partnership
Agreement, except as provided in Section 11.10(j), from and after the
Effective Date, any Transfer, Acquisition, change in capital structure of the
Partnership, or other purported change in Constructive Ownership of Units or
other event or transaction that, if effective, would (i) cause the
Partnership to own (directly or Constructively) an interest in a tenant, the
rents received or accrued from whom would not qualify as rents from real
property under Section 7704(c)(3) and (ii) cause the Partnership to fail to
satisfy any of the gross income requirements of Section 7704(c)(3) of the
Code, shall be void ab initio as to the Transfer, Acquisition, change in
capital structure of the Partnership, or other purported change in
Constructive Ownership or other event or transaction with respect to that
number of Units which would cause the Partnership to own an interest
(directly or Constructively) in a tenant, the rents received or accrued from
whom would not qualify as rents from real property under Section 7704(c)(3),
and none of the Purported Beneficial Transferee, the Purported Record
Transferee, the Purported Beneficial Holder or the Purported Record Holder
shall acquire any rights in that number of Units.
(d) Exchange for Excess Units.
(i) If, notwithstanding the other provisions contained in this
Article XI, at any time from and after the Effective Date, there is a
purported Transfer, Acquisition, change in the capital structure of the
Partnership, or other purported change in the Constructive Ownership of Units
or other event or transaction such that any Person would Constructively Own
Units in excess of the applicable Ownership Limit or then, except as
otherwise provided in paragraph (j) of this Section 11.10, such number of
Units (rounded up to the next whole number of Units) in excess of the
applicable Ownership Limit automatically shall be exchanged for an equal
number of Excess Units having terms, rights, restrictions and qualifications
identical thereto, except to the extent that this Article XI requires
different terms. Such exchange shall be effective as of the close of
business on the business day next preceding the date of the purported
Transfer, Acquisition, change in capital structure, or other purported change
in Constructive Ownership of Units or other event or transaction.
(ii) If, notwithstanding the other provisions contained in this
Article XI, at any time from and after the Effective Date, there is a
purported Transfer, Acquisition, change in the capital structure of the
Partnership, or other purported change in Constructive Ownership of Units or
other event or transaction which, if effective, would result in a violation
of any of the restrictions described in subparagraphs (ii) or (iii) of
paragraph (c) of this Section 11.10 or, directly or indirectly, would for any
reason cause the Partnership to fail to be classified as a partnership under
the Code, then the number of Units (rounded up to the next whole number of
Units) being Transferred or Acquired or which are otherwise affected by the
change in capital structure or other purported change in Constructive
Ownership or other event or transaction and which would result in a violation
of any of the restrictions described in subparagraphs (ii) and (iii) of
paragraph (c) of this Section 11.10 or, directly or indirectly, would for any
reason cause the Partnership to fail to be classified as a partnership under
the Code, automatically shall be exchanged for an equal number of Excess
Units having terms, rights, restrictions and qualifications identical
thereto, except to the extent that this Article XI requires different terms.
Such exchange shall be effective as of the close of business on the business
day prior to the date of the purported Transfer, Acquisition, change in
capital structure, or other purported change in Constructive Ownership or
other event or transaction.
(iii) The General Partner recognizes that Section 11.10(d)(i) or
Section 11.10(d)(ii) may become operative because of the purported ownership
of Units by two or more (i) partners of a partnership, (ii) shareholders of a
corporation or (iii) members of any other Person. In such event, the General
Partner shall have the authority in its sole, complete and absolute
discretion to determine the number of Units and the identity of the Units of
each partner, shareholder or member that automatically shall be exchanged for
an equal number of Excess Units.
(e) Remedies For Breach. If the General Partner or its designee
shall at any time determine in good faith that a Transfer, Acquisition, or
change in the capital structure of the Partnership or other purported change
in Constructive Ownership or other event or transaction has taken place in
violation of paragraph (c) of this Section 11.10 or that a Person intends to
Acquire or has attempted to Acquire Constructive Ownership of any Units in
violation of paragraph (c) of this Section 11.10, the General Partner or its
designee shall take such action as it deems advisable to refuse to give
effect to or to prevent such Transfer, Acquisition, or change in the capital
structure of the Partnership, or other attempt to Acquire Constructive
Ownership of any Units or other event or transaction, including, but not
limited to, refusing to give effect thereto on the books of the Partnership
or instituting injunctive proceedings with respect thereto; provided,
however, that any Transfer, Acquisition, change in the capital structure of
the Partnership, attempted Transfer, or other attempt to Acquire Constructive
Ownership of any Units or event or transaction in violation of subparagraphs
(ii) or (iii) of paragraph (c) of this Section 11.10 (as applicable) shall be
void ab initio and, where applicable, automatically shall result in the
exchange described in paragraph (d) of this Section 11.10, irrespective of
any action (or inaction) by the General Partner or its designee.
(f) Notice of Restricted Transfer. Any Person who Acquires or
attempts to Acquire Constructive Ownership of Units in violation of paragraph
(c) of this Section 11.10 and any Person who Constructively Owns Excess Units
as a transferee of Units resulting in an exchange for Excess Units, pursuant
to paragraph (c) of this Section 11.10, or otherwise, immediately shall give
written notice to the Partnership, or, in the event of a proposed or
attempted Transfer or Acquisition or purported change in Constructive
Ownership, shall give at least fifteen (15) days prior written notice to the
Partnership, of such event and shall promptly provide to the Partnership such
other information as the Partnership, in its sole discretion, may request in
order to determine the effect, if any, of such Transfer, attempted Transfer,
Acquisition, attempted Acquisition or other purported change in Constructive
Ownership on the Partnership's status as a partnership under the Code.
(g) Owners Required To Provide Information. From and after the
Effective Date:
(i) Every Constructive Owner of more than 5 percent, or such
lower percentage or percentages as determined pursuant to regulations under
the Code or as may be requested by the General Partner in its sole
discretion, of the outstanding Units of any class or series of Units of the
Partnership annually shall, no later than January 31 of each calendar year,
give written notice to the Partnership stating (i) the name and address of
such Constructive Owner; (ii) the number of Units of each class or series of
Units Constructively Owned; and (iii) a description of how such Units are
held. Each such Constructive Owner promptly shall provide to the Partnership
such additional information as the Partnership, in its sole discretion, may
request in order to determine the effect, if any, of such Constructive
Ownership on the Partnership's status as a partnership under the Code and to
ensure compliance with the applicable Ownership Limit and other restrictions
set forth herein.
(ii) Each Person who is a Constructive Owner of Units and each
Person (including the shareholder of record) who is holding Units for a
Constructive Owner promptly shall provide to the Partnership such information
as the Partnership, in its sole discretion, may request in order to determine
the Partnership's status as a partnership under the Code, to comply with the
requirements of any taxing authority or other governmental agency, to
determine any such compliance or to ensure compliance with the applicable
Ownership Limit and other restrictions set forth herein.
(h) Remedies Not Limited. Nothing contained in this Article XI
except Section 11.10(j) hereof shall limit the scope or application of the
provisions of this Section 11.10, the ability of the Partnership to implement
or enforce compliance with the terms thereof or the authority of the General
Partner to take any such other action or actions as it may deem necessary or
advisable to protect the Partnership and the interests of its Unitholders by
preservation of the Partnership's status as a partnership under the Code and
to ensure compliance with the applicable Ownership Limit and other
restrictions set forth herein, including, without limitation, refusal to give
effect to a transaction on the books of the Partnership.
(i) Ambiguity. In the case of ambiguity in the application of any of
the provisions of this Section 11.10, including any definition contained in
paragraph (b) hereof, the General Partner shall have the power and authority,
in its sole discretion, to determine the application of the provisions of
this Section 11.10 with respect to any situation, based on the facts known to
it.
(j) Exceptions. The General Partner, upon receipt of a ruling from
the Internal Revenue Service, an opinion of counsel, or other evidence
satisfactory to the General Partner, in its sole discretion, in each case to
the effect that the restrictions contained in subparagraphs (iii) of
paragraph (c) of this Section 11.10 will not be violated, may waive or
change, in whole or in part, the application of the applicable Ownership
Limit with respect to any Person that Constructively Owned at least 4.9% of
any class of the outstanding Units at or concurrently with the Effective
Date. In connection with any such waiver or change, the General Partner may
require such representations and undertakings from such Person or affiliates
and may impose such other conditions, as the General Partner deems necessary,
advisable or prudent, in its sole discretion, to determine the effect, if
any, of the proposed transaction or ownership of Units on the Partnership's
status as a partnership under the Code.
(k) Increase in Ownership Limit. The General Partner is hereby
expressly vested with the full power and authority from time to time to
increase the Ownership Limit. No such increase shall constitute or be deemed
to constitute an amendment of this Partnership Agreement, and shall take
effect automatically without any action on the part of any Unitholder as of
the date specified by the General Partner that is subsequent to the General
Partner's resolution approving and effecting such reduction.
(l) Legend. From and after the Effective Date, each certificate for
Units shall bear substantially the following legend:
"The securities represented by this certificate are subject
to the restrictions on transfer and ownership for the purpose of
maintenance of the status as a partnership under the Internal
Revenue Code of 1986, as amended (the "Code"). Except as
otherwise provided pursuant to the Partnership Agreement of the
Partnership, no Person may (i) Constructively Own Units of the
Partnership in excess of 4.9 percent of the outstanding Units or
(ii) Constructively Own Units (of any class or series) which
would cause the Partnership to fail to qualify as a partnership
for federal income tax purposes under any applicable Code
Section, including, without limitation, Section 7704 of the
Code. Any Person who has Constructive Ownership, or who Acquires
or attempts to Acquire Constructive Ownership of Units in excess
of the above limitations and any Person who Constructively Owns
Excess Units as a transferee of Units resulting in an exchange
for Excess Units (as described below) immediately must notify the
Partnership in writing or, in the event of a proposed or
attempted Transfer or Acquisition or purported change in the
Constructive Ownership, must give written notice to the
Partnership at least fifteen (15) days prior to the proposed or
attempted transfer, transaction or other event. Any Transfer or
Acquisition of Units or other event which results in violation of
the ownership or transfer limitations set forth in the
Partnership Agreement of the Partnership, shall be void ab initio
and the Purported Beneficial and Record Transferee shall not have
or acquire any rights in such Units. If the transfer and
ownership limitations referred to herein are violated, the Units
represented hereby automatically will be exchanged for Excess
Units to the extent of violation of such limitations, and such
Excess Units will be held in trust by the Partnership, all as
provided by the Partnership Agreement of the Partnership. All
defined terms used in this legend have the meanings identified in
the Partnership Agreement of the Partnership, as the same may be
amended from time to time, a copy of which, including the
restrictions on transfer, will be sent without charge to each
Unitholder who so requests."
Section 11.11 Excess Units.
(a) Ownership In Partnership. Upon any purported Transfer,
Acquisition, change in the capital structure of the Partnership, or other
purported change in the Constructive Ownership or event or transaction that
results in Excess Units pursuant to paragraph (d) of Section 11.10, such
Excess Units shall be deemed to have been transferred to the Partnership, as
Excess Units Trustee of an Excess Units Trust for the benefit of such
Beneficiary or Beneficiaries to whom an interest in such Excess Units may
later be transferred pursuant to paragraph (e) of this Section 11.11. Excess
Units so held in trust shall be issued and outstanding Units of the
Partnership. The Purported Record Transferee (or Purported Record Holder)
shall have no rights in such Excess Units except the right to designate a
transferee of such Excess Units upon the terms specified in paragraph (e) of
this Section 11.11. The Purported Beneficial Transferee (or Purported
Beneficial Holder) shall have no rights in such Excess Units except as
provided in paragraphs (c) and (e) of this Section 11.11.
(b) Distribution Rights. Excess Units shall not be entitled to any
distributions (except as provided in Paragraph (c) of this Section 11.11).
Any distribution paid prior to the discovery by the Partnership that the
Units have been exchanged for Excess Units shall be repaid to the Partnership
upon demand, and any distribution declared but unpaid at the time of such
discovery shall be void ab initio with respect to such Excess Units.
(c) Rights Upon Liquidation.
(i) Except as provided below, in the event of any voluntary or
involuntary liquidation, dissolution or winding up, or any other distribution
of the assets, of the Partnership, each holder of Excess Units resulting from
the exchange of preferred Units of any specified series shall be entitled to
receive, ratably with each other holder of Excess Units resulting from the
exchange of preferred Units of such series and each holder of preferred Units
of such series, such accrued and unpaid dividends, liquidation preferences
and other preferential payments, if any, as are due to holders of preferred
Units of such series. In the event that holders of Units of any series of
preferred Units are entitled to participate in the Partnership's distribution
of its residual assets, each holder of Excess Units resulting from the
exchange of preferred Units of any such series shall be entitled to
participate, ratably with (i) each other holder of Excess Units resulting
from the exchange of preferred Units of all series entitled to so
participate; (ii) each holder of preferred Units of all series entitled to so
participate; and (iii) each holder of other Units and Excess Units resulting
from the exchange of other Units (to the extent permitted by paragraph (d) of
Section 11.10 hereof), that portion of the aggregate assets available for
distribution (determined in accordance with applicable law) as the number of
such Excess Units held by such holder bears to the total number of
(i) outstanding Excess Units resulting from the exchange of preferred Units
of all series entitled to so participate; (ii) outstanding preferred Units of
all series entitled to so participate; and (iii) other outstanding Units and
Excess Units resulting from the exchange of other Units. The Partnership, as
holder of Excess Units in trust, or, if the Partnership shall have been
dissolved, any trustee appointed by the Partnership prior to its dissolution,
shall distribute ratably to the Beneficiaries of the Excess Units Trust, when
determined, any such assets received in respect of the Excess Units in any
liquidation, dissolution or winding up, or any distribution of the assets, of
the Partnership. Anything to the contrary herein notwithstanding, in no
event shall the amount payable to a holder with respect to Excess Units
resulting from the exchange of preferred Units exceed (i) the price per share
such holder paid for the preferred Units in the purported Transfer,
Acquisition, change in capital structure, or other transaction or event that
resulted in the Excess Units or the price per share such holder paid for the
preferred Units that were exchanged for the Excess Units or (ii) if the
holder did not give full value for such Excess Units (as through a gift,
devise or other event or transaction), a price per share equal to the Market
Price for the preferred Units on the date of the purported Transfer,
Acquisition, change in capital structure or other transaction or event that
resulted in such Excess Units or the Market Price for the preferred Units on
the date they were exchanged for the Excess Units. Any amount available for
distribution in excess of the foregoing limitations shall be paid ratably to
the holders of preferred Units and Excess Units resulting from the exchange
of preferred Units to the extent permitted by the foregoing limitations.
(ii) Except as provided below, in the event of any voluntary or
involuntary liquidation, dissolution or winding up, or any other distribution
of the assets, of the Partnership, each holder of Excess Units resulting from
the exchange of Units shall be entitled to receive, ratably with (i) each
other holder of such Excess Units and (ii) each holder of other Units, that
portion of the aggregate assets available for distribution to holders of
Units (including holders of Excess Units resulting from the exchange of other
Units pursuant to paragraph (d) of Section 11.10 hereof), determined in
accordance with applicable law, as the number of such Excess Units held by
such holder bears to the total number of outstanding other Units and
outstanding Excess Units resulting from the exchange of other Units then
outstanding. The Partnership, as holder of the Excess Units in trust, or, if
the Partnership shall have been dissolved, any trustee appointed by the
Partnership prior to its dissolution, shall distribute ratably to the
Beneficiaries of the Excess Units Trust, when determined, any such assets
received in respect of the Excess Units in any liquidation, dissolution or
winding up, or any distribution of the assets, of the Partnership. Anything
herein to the contrary notwithstanding, in no event shall the amount payable
to a holder with respect to Excess Units exceed (i) the price per share such
holder paid for the Units in the purported Transfer, Acquisition, change in
capital structure, or other transaction or event that resulted in the Excess
Units or the price per share such holder paid for the Units that were
exchanged for the Excess Units or (ii) if the holder did not give full value
for such Excess Units (as through a gift, devise or other event or
transaction), a price per share equal to the Market Price for the Units on
the date of the purported Transfer, Acquisition, change in capital structure
or other transaction or event that resulted in such Excess Units or the
Market Price for the Units on the date they were exchanged for the Excess
Units. Any amount available for distribution in excess of the foregoing
limitations shall be paid ratably to the holders of other Units and Excess
Units resulting from the exchange of other Units to the extent permitted by
the foregoing limitations.
(d) Voting Rights. The holders of Excess Units shall not be entitled
to vote on any matters (except as required by the Delaware Act).
(e) Restrictions on Transfer; Designation of Beneficiary.
(i) Excess Units shall not be Transferable. The Purported
Record Transferee (or Purported Record Holder) may freely designate a
Beneficiary of its interest in the Excess Units Trust (representing the
number of Excess Units held by the Excess Units Trust attributable to the
purported Transfer that resulted in the Excess Units), if (A) the Excess
Units held in the Excess Units Trust would not be Excess Units in the hands
of such Beneficiary and (B) the Purported Beneficial Transferee (or Purported
Beneficial Holder) does not receive a price for designating such Beneficiary
that reflects a price per share for such Excess Units that exceeds (x) the
price per share such Purported Beneficial Transferee (or Purported Beneficial
Holder) paid for the Units in the purported Transfer, Acquisition, change in
capital structure, or other transaction or event that resulted in the Excess
Units or the price per share paid for the Units that were exchanged for the
Excess Units or (y) if the Purported Beneficial Transferee (or Purported
Beneficial Holder) did not give value for such Excess Units (as through a
gift, devise or other event or transaction), a price per share equal to the
Market Price for the Units on the date of the purported Transfer,
Acquisition, change in capital structure, or other transaction or event that
resulted in the Excess Units or the Market Price for the Units on the date
they were exchanged for the Excess Units. Upon such Transfer of an interest
in the Excess Units Trust, the corresponding Excess Units in the Excess Units
Trust automatically shall be exchanged for an equal number of Units
(depending on the type and class of Units that originally were exchanged for
such Excess Units) and such Units shall be transferred of record to the
Beneficiary of the interest in the Excess Units Trust designated by the
Purported Record Transferee (or Purported Record Holder), as described above,
if such Units would not be Excess Units in the hands of such Beneficiary.
Prior to any Transfer of any interest in the Excess Units Trust, the
Purported Record Transferee (or Purported Record Holder) must give written
notice to the Partnership of the intended Transfer and the Partnership must
have waived in writing its purchase rights under paragraph (f) of this
Section 11.11.
(ii) Notwithstanding the foregoing, if a Purported Beneficial
Transferee (or Purported Beneficial Holder) receives a price for designating
a Beneficiary of an interest in the Excess Units Trust that exceeds the
amounts allowable under subparagraph (i) of this paragraph (e), such
Purported Beneficial Transferee (or Purported Beneficial Holder) shall pay,
or cause the Beneficiary of the interest in the Excess Units Trust to pay,
such excess in full to the Trust.
(iii) If any of the Transfer restrictions set forth in this
paragraph (e) or any application thereof is determined to be void, invalid or
unenforceable by any court having jurisdiction over the issue, the Purported
Record Transferee (or Purported Record Holder) may be deemed, at the option
of the Partnership, to have acted as the agent of the Partnership in
acquiring the Excess Units as to which such restrictions would otherwise, by
their terms, apply, and to hold such Excess Units on behalf of the
Partnership.
(f) Purchase Right in Excess Units. Excess Units shall be deemed to
have been offered for sale to the Partnership or its designee at a price per
share equal to the lesser of (i) the price per share in the transaction that
created such Excess Units (or, in the case of a devise or gift or event other
than a Transfer or Acquisition which results in the issuance of Excess Units,
the Market Price at the time of such devise or gift or event other than a
Transfer or Acquisition which results in the issuance of Excess Units) or
(ii) the Market Price of the Units exchanged for such Excess Units on the
date the Partnership or its designee accepts such offer. The Partnership and
its assignees shall have the right to accept such offer for a period of
ninety (90) days after the later of (i) the date of the purported Transfer,
Acquisition, change in capital structure of the Partnership, or purported
change in Constructive Ownership or other event or transaction which resulted
in such Excess Units and (ii) the date on which the General Partner
determines in good faith that a Transfer, Acquisition, change in capital
structure of the Partnership, or purported change in Constructive Ownership
or other event or transaction resulting in Excess Units has occurred, if the
Trust does not receive a notice pursuant to paragraph (e) of Section 11.10,
but in no event later than a permitted Transfer pursuant to, and in
compliance with, the terms of paragraph (e) of this Section 11.11.
(g) Remedies Not Limited. Nothing contained in this Article XI
except Section 11.12 hereof shall limit the scope or application of the
provisions of this Section 11.11, the ability of the Partnership to implement
or enforce compliance with the terms hereof or the authority of the General
Partner to take any such other action or actions as it may deem necessary or
advisable to protect the Partnership and the interests of its shareholders by
preservation of the Partnership's status as a partnership and to ensure
compliance with the applicable Ownership Limits and the other restrictions
set forth herein, including, without limitation, refusal to give effect to a
transaction on the books of the Partnership.
Section 11.12 Settlements.
Nothing in Sections 11.10 and 11.11 shall preclude the settlement of
any transaction with respect to the Units entered into through the facilities
of the New York Stock Exchange or the American Stock Exchange.
Section 11.13 Severability.
If any provision of this Article XI or any application of any such
provision is determined to be void, invalid or unenforceable by any court
having jurisdiction over the issue, the validity and enforceability of the
remainder of this Article XI shall not be affected and other applications of
such provision shall be affected only to the extent necessary to comply with
the determination of such court.
Section 11.14 Waiver.
The Partnership shall have authority at any time to waive the
requirements that Excess Units be issued or be deemed outstanding in
accordance with the provisions of this Article XI if the Partnership
determines, based on an opinion of tax counsel, that the issuance of such
Excess Units or the fact that such Excess Units are deemed to be outstanding,
would jeopardize the status of the Partnership as a partnership under the
Code.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first set forth above.
OUTGOING GENERAL PARTNER
FFP PARTNERS MANAGEMENT
COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Chairman
INCOMING GENERAL PARTNER:
FFP REAL ESTATE TRUST
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, President
LIMITED PARTNERS:
All Limited Partners now and hereafter
admitted as limited partners of the
Partnership, pursuant to the power of
attorney contained in Section 1.4 of the
Partnership Agreement.
By: FFP Partners Management Company, Inc.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Chairman
EXHIBIT A
REDEMPTION NOTICE
The undersigned hereby irrevocably tenders for redemption
Units in FFP Partners, L.P. in accordance with the terms of the Amended and
Restated Agreement of Limited Partnership of FFP Partners, L.P. dated May 21,
1987, as it may be amended from time to time (the "Partnership Agreement").
All capitalized terms used in this Redemption Notice and not otherwise
defined have the meaning given to them in the Partnership Agreement.
The undersigned hereby represents and warrants that (i) it has full
power and authority to transfer all of its right, title and interest in such
Units, (ii) such Units are free and clear of all liens and encumbrances, and
(iii) it will assume and pay any state or local transfer tax that may be
payable as a result of the transfer of such Units.
Dated:
Name of Limited Partner:
Signature of Limited Partner:
By:
Title:
Address:
(Street Address)
(City) (State) (Zip Code)
Signature Witnessed By:
