FOURTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF LIBERTY PROPERTY LIMITED PARTNERSHIP
THIS FOURTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF LIBERTY PROPERTY LIMITED PARTNERSHIP (as amended, the
"PARTNERSHIP AGREEMENT"), dated as of August 31, 2004 (this "AMENDMENT"), is
executed by Liberty Property Trust, a Maryland real estate investment trust (the
"COMPANY"), as the General Partner, and on behalf of the existing Limited
Partners, of Liberty Property Limited Partnership, a Pennsylvania limited
partnership (the "PARTNERSHIP"), Belcrest Realty Corporation, a Delaware
corporation ("BELCREST"), Belrose Realty Corporation, a Delaware corporation
("BELROSE") and Belair Real Estate Corporation, a Delaware corporation
("Belair"; and each of Belcrest, Belrose and Belair a "SERIES B PREFERRED
PARTNER" and, collectively, the "SERIES B PREFERRED PARTNERS"). Capitalized
terms used herein but not defined herein shall have the respective definitions
ascribed to such terms in the Partnership Agreement.
W I T N E S S E T H:
WHEREAS, the Partnership and the Series B Preferred Partners desire
to (i) amend the terms of the Series B Preferred Units to provide that, from and
after August 31, 2004, the Series B Priority Return that accrues on such Series
B Preferred Units shall accrue at the rate per annum of 7.45%, and (ii) amend
certain other terms from and after the date hereof, as set forth herein;
WHEREAS, the Series B Preferred Units were established by that
certain First Amendment to the Second Amended and Restated Agreement of Limited
Partnership of Liberty Property Limited Partnership (the "FIRST AMENDMENT"),
dated as of July 28, 1999; and
WHEREAS, the parties hereto desire to cause the Articles
Supplementary attached hereto as Exhibit A (the "ARTICLES SUPPLEMENTARY"; and,
together with the Partnership Agreement, the "AMENDED DOCUMENTS"), which
Articles Supplementary reclassify the Company's 9.25% Series B Cumulative
Redeemable Preferred Stock as 7.45% Series B Cumulative Redeemable Preferred
Stock (the "SERIES B PREFERRED STOCK"), to be filed with the State Department of
Assessments and Taxation of Maryland (the "SDAT"), as set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises set forth herein, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree to continue the Partnership and amend the
Amended Documents as follows:
1. Partnership Agreement. The Partnership Agreement is hereby
amended as follows:
(a) The definition of "Priority Return" in Section 1 of the First
Amendment is hereby amended by deleting the term "9.25%" therein and inserting
the term "7.45%" in lieu thereof.
(b) The definition of "Series B Preferred Units" in Section 2 of
the First Amendment is hereby amended by deleting the term "9.25%" therein and
inserting the term "7.45%" in lieu thereof.
(c) The definition of "Issuance Rate" in Section 3(a)(i) of the
First Amendment is hereby amended by deleting the term "9.25%" therein and
inserting the term "7.45%" in lieu thereof.
(d) Section 3(a)(v) of the First Amendment is hereby amended by
adding the following new sentence to the end of such Section 3(a)(v): "For the
distribution payment for the quarterly period ending September 30, 2004, which
payment shall be calculated on the basis of a ninety (90) day period, with
respect to fifty-nine (59) days of such period, such payment shall be calculated
at the rate per annum of 9.25% and with respect to thirty-one (31) days of such
period, such payment shall be calculated at the rate per annum of 7.45%."
(e) Section 6(a) of the First Amendment is hereby amended by
deleting the phrase "the fifth (5th) anniversary of the issuance date" from the
first sentence therein and inserting the phrase "August 31, 2009" in lieu
thereof.
(f) Section 7 of the First Amendment is hereby amended by adding
the following new subsection (c) thereto:
"(c) Certain Additional Voting Rights. So long as any Series B
Preferred Units remain outstanding, the General Partner shall not,
without the affirmative vote of the holders of at least two-thirds
(2/3) of the Series B Preferred Units outstanding at the time, (i)
consummate any transaction or series of transactions which would
result in a Change of Control of the General Partner or the
Partnership, (ii) consummate any transaction or series of
transactions which would result in the common shares of the General
Partner or any successor entity of the General Partner ceasing to be
listed on at least one of the New York Stock Exchange, the American
Stock Exchange or the NASDAQ National Market (or, in each case, a
successor thereto) or (iii) elect not to qualify for taxation as a
real estate investment trust under Section 856 et seq. of the Code.
For the purposes of this Section 7(c), "Change of Control" shall
mean: (i) any sale or other disposition of all or substantially all
of the assets of the Partnership or the General Partner, as the case
may be, to an entity that is not an Affiliate of the General
Partner; or (ii) any consolidation, amalgamation, merger, business
combination, share exchange, reorganization or similar transaction
involving the Partnership or the General Partner, as the case may
be, pursuant to which the Partners of the Partnership or the
shareholders of the General Partner, as the case may be, immediately
prior to the consummation of such transaction will own less than a
majority of the equity interest in the entity surviving such
transaction. If the requisite holders of the Series B Preferred
Units fail to approve any of the General Partner actions specified
in clauses (i), (ii) or (iii) of the first sentence of this Section
7(c) (each a "MANDATORY REDEMPTION EVENT") the Partnership shall
redeem, on the date such Mandatory Redemption Event is consummated
or otherwise becomes effective, all of the Series B Preferred Units
outstanding at a redemption price, payable in cash, equal to the
Capital Account balance of the holders of the Series B Preferred
Units or, if greater, the original Capital Contribution of such
holders plus the current Series B Priority Return, whether or not
declared, to the date of such redemption to the extent not
previously distributed; provided, however, that notwithstanding any
provision hereof to the contrary, the actions specified in clause
(i) of the first sentence of this Section 7(c) shall not constitute
a Mandatory Redemption Event if, on or prior to the date of the
consummation of such transaction or transactions, a "nationally
recognized statistical rating organization" (as such term is defined
for purposes of Rule 436(g)(2)
2
promulgated under the Securities Act) shall have affirmed the rating
accorded the senior unsecured debt of the General Partner
immediately prior to the public announcement of such transaction or
transactions, or shall have upgraded such rating (or, if the General
Partner is not the surviving entity in such transaction or
transactions, affirmed that the rating of the securities of the
successor to the General Partner shall be at least equal to the
rating accorded the securities of the General Partner immediately
prior to the public announcement of such transaction or
transactions). The date of such redemption shall be the date of the
Mandatory Redemption Event."
(g) Section 9(a)(i) of the First Amendment is hereby amended by
(x) deleting the phrase "the tenth (10th) anniversary of the issuance date" from
the first sentence therein and inserting the phrase "August 31, 2013" in lieu
thereof, (y) deleting the term "9.25%" from the definition of "Series B
Preferred Shares" and inserting the term "7.45%" in lieu thereof and (z)
deleting the phrase "the tenth (10th) anniversary of the issuance date and after
the third (3rd) anniversary thereof" from the second sentence therein and
inserting the phrase "August 31, 2013" in lieu thereof.
(h) Except as amended by the provisions hereof, the Partnership
Agreement, as previously amended, shall remain in full force and effect in
accordance with its terms; provided, however, that to the extent there shall be
a conflict between the provisions of the Partnership Agreement and this
Amendment, this Amendment shall prevail. The Partnership Agreement, as amended
hereby, is hereby ratified, confirmed and reaffirmed by the undersigned for all
purposes and in all respects. Except as otherwise provided herein, all
references to the Partnership Agreement in any document relating to the Series B
Preferred Partners shall mean the Partnership Agreement, as amended hereby.
2. The parties hereto hereby request the Company, and the Company
hereby agrees, to file with the State Dept. of Assessment and Taxation of the
State of Maryland the Articles Supplementary. The preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of the
Series B Preferred Stock, as set forth in the Articles Supplementary, shall be
effective at the earliest time possible in accordance with applicable law. The
Articles Supplementary shall be filed with the SDAT as soon as reasonably
practicable and in any event no later than September 15, 2004.
3. The Partnership hereby agrees that the obligations of the
Partnership contained in Section 4(d) and Section 4(i) of that certain
Contribution Agreement, dated as of July 28, 1999, by and among Belcrest,
Belair, the Partnership and the Company shall be extended through December 31,
2004.
4. As soon as reasonably practicable following the execution of
this Amendment by the Series B Partners, such Series B Partners shall return to
the Partnership all of the certificates representing the Series B Preferred
Units outstanding immediately prior to the date of this amendment. As soon as
reasonably practicable following the receipt by the Partnership of such
certificates, the Partnership shall issue new certificates to reflect the terms
of Series B Preferred Units.
5. Each of the Series B Preferred Partners makes the following
representations and warranties to the Partnership and the Company as of the date
hereof:
(a) Such Series B Preferred Partner is duly organized and validly
existing under the laws of the state of its organization and has been duly
authorized by all necessary and appropriate action to enter into this Amendment
and to consummate the transactions contemplated herein and the individuals
executing this Amendment on behalf of such Series B Preferred Partner have been
duly authorized by all necessary and appropriate action on behalf of such Series
B Preferred Partner. Assuming the due
3
execution and delivery hereof by the Company and the General Partner, this
Amendment is a valid and binding obligation of such Series B Preferred Partner,
enforceable against such Series B Preferred Partner in accordance with its
terms, except insofar as enforceability may be affected by bankruptcy,
insolvency or similar laws affecting creditor's rights generally and the
availability of any particular equitable remedy.
(b) Neither the execution nor the delivery of this Amendment nor
the consummation of the transactions contemplated herein nor fulfillment of or
compliance with the terms and conditions hereof (a) conflict with or will result
in a breach of any of the terms, conditions or provisions of (i) the articles of
incorporation, bylaws or other organizational documents of such Series B
Preferred Partner or (ii) any agreement, order, judgment, decree, arbitration
award, statute, regulation or instrument to which such Series B Preferred
Partner is a party or by which it or its assets are bound, or (b) constitutes or
will constitute a breach, violation or default under any of the foregoing. No
consent or approval, authorization, order, regulation or qualification of any
governmental entity or any other person is required for the execution and
delivery of this Amendment and the consummation of the transactions contemplated
hereby by such Series B Preferred Partner.
(c) The Series B Preferred Partners collectively own all of the
Preference Units issued pursuant to the Contribution Agreement and the First
Amendment.
(d) Each of the Series B Preferred Partners is an "accredited
investor" within the meaning of Regulation D under the Securities Act and has
knowledge and experience in financial and business matters such that it is
capable of evaluating the merits and risks of entering into this Amendment. In
entering into this Amendment, each of the Series B Preferred Partners is relying
upon the advice of its own personal, legal and tax advisors with respect to the
tax and other aspects of this Amendment.
6. Each of the Partnership and the Company (each a "LIBERTY
ENTITY") makes the following representations and warranties to each of the
Series B Preferred Partners as of the date hereof:
(a) Such Liberty Entity is duly organized and validly existing
under the laws of the state of its organization and has been duly authorized by
all necessary and appropriate action to enter into this Amendment and to
consummate the transactions contemplated herein and the individuals executing
this Amendment on behalf of such Liberty Entity have been duly authorized by all
necessary and appropriate action on behalf of such Liberty Entity. Assuming the
due execution and delivery hereof by the Series B Preferred Partner, this
Amendment is a valid and binding obligation of such Liberty Entity, enforceable
against such Liberty Entity in accordance with its terms (except, with respect
to the Company, such enforceability is limited to the terms of Sections 1(e) and
1(f) hereof), except insofar as enforceability may be affected by bankruptcy,
insolvency or similar laws affecting creditor's rights generally and the
availability of any particular equitable remedy.
(b) Neither the execution nor the delivery of this Amendment nor
the consummation of the transactions contemplated herein nor fulfillment of or
compliance with the terms and conditions hereof (a) conflict with or will result
in a breach of any of the terms, conditions or provisions of (i) the articles of
incorporation, bylaws or other organizational documents of such Liberty Entity
or (ii) any agreement, order, judgment, decree, arbitration award, statute,
regulation or instrument to which such Liberty Entity is a party or by which it
or its assets are bound, or (b) constitutes or will constitute a breach,
violation or default under any of the foregoing. No consent or approval,
authorization, order, regulation or qualification of any governmental entity or
any other person is required for the execution and delivery of this Amendment
and the consummation of the transactions contemplated hereby by such Liberty
Entity.
4
7. The parties agree to cooperate with either other in
effectuating the transactions described herein and agree to execute such further
documents and instruments as may reasonably be required to effectuate the
transactions described herein.
8. This Amendment shall be binding upon and shall inure to the
benefit of the parties hereto, their respective legal representatives,
successors and assigns.
9. This Amendment may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart.
10. This Amendment shall be effective on and after August 31,
2004.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first written above.
LIBERTY PROPERTY TRUST
By:
---------------------------------
Name:
Title:
BELCREST REALTY CORPORATION
By:
---------------------------------
Name:
Title:
BELROSE REALTY CORPORATION
By:
---------------------------------
Name:
Title:
BELAIR REAL ESTATE CORPORATION
By:
---------------------------------
Name:
Title:
6
EXHIBIT A
LIBERTY PROPERTY TRUST
ARTICLES SUPPLEMENTARY
3,800,000 SHARES
7.45% SERIES B CUMULATIVE REDEEMABLE PREFERRED SHARES
OF BENEFICIAL INTEREST
Liberty Property Trust, a Maryland real estate investment trust (the
"COMPANY"), hereby certifies to the State Department of Assessments and Taxation
of Maryland (the "DEPARTMENT") that:
FIRST: Pursuant to the authority expressly vested in the Board of
Trustees of the Company by Sections 3.2(e), 6.1 and 6.3 of the Amended and
Restated Declaration of Trust of the Company filed with the Department on May
29, 1997, as amended June 22, 2004 and as supplemented by (i) the Articles
Supplementary accepted for record by the Department on August 7, 1997, (ii) the
Articles Supplementary accepted for record by the Department on December 23,
1997, (iii) the Articles Supplementary accepted for record by the Department on
July 28, 1999, (iv) the Articles Supplementary accepted for record by the
Department on April 18, 2000, and (v) the Articles Supplementary accepted for
record by the Department on June 10, 2002 (the "CHARTER") and Section 8-203 of
the Corporations and Associations Article of the Annotated Code of Maryland, the
Board of Trustees of the Company (the "BOARD"), by resolutions duly adopted on
August 26, 2004, has reclassified the 3,800,000 unissued shares of the
200,000,000 authorized but unissued shares of beneficial interest in the Company
previously designated the 9.25% Series B Cumulative Redeemable Preferred Shares
of Beneficial Interest as a series designated the 7.45% Series B Cumulative
Redeemable Preferred Shares of Beneficial Interest, with the intent that this
Articles Supplementary shall supercede the Articles Supplementary accepted for
record by the Department on July 28, 1999, and with the following preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
SECTION 1. DESIGNATION AND NUMBER. The series of preferred shares of
beneficial interest of the Company, previously designated the "9.25% Series B
Cumulative Redeemable Preferred Shares of Beneficial Interest" (the "SERIES B
PREFERRED SHARES") is hereby reclassified as the "7.45% Series B Cumulative
Redeemable Preferred Shares of Beneficial Interest," par value $0.001 per share.
The number of Series B Preferred Shares shall remain 3,800,000.
SECTION 2. RANK. The Series B Preferred Shares will, with respect to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Company, rank senior to all classes or series of Common
Shares (as defined in the Charter) and to all classes or series of equity
securities of the Company now or hereafter authorized, issued or outstanding
including, without limitation, the "Series A Junior Participating Preferred
7
Shares," other than any class or series of equity securities of the Company
expressly designated as ranking on a parity with or senior to the Series B
Preferred Shares as to distributions and rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Company. For purposes of these
Articles Supplementary, the term "PARITY PREFERRED SHARES" shall be used to
refer to any class or series of equity securities of the Company now or
hereafter authorized, issued or outstanding expressly designated by the Company
to rank on a parity with Series B Preferred Shares with respect to distributions
and rights upon voluntary or involuntary liquidation, winding-up or dissolution
of the Company including, without limitation, the "8.80% Series A Cumulative
Redeemable Preferred Shares of Beneficial Interest." The term "equity
securities" does not include debt securities, which will rank senior to the
Series B Preferred Shares prior to conversion.
SECTION 3. DISTRIBUTIONS.
(a) Payment of Distributions.
(i) Subject to the rights of holders of Parity Preferred Shares
and holders of equity securities ranking senior to the Series B Preferred Shares
as to payment of distributions, holders of Series B Preferred Shares will be
entitled to receive, when, as and if declared by the Board of Trustees of the
Company, out of funds legally available for the payment of distributions,
cumulative preferential cash distributions at the rate per annum of 7.45% of the
$25 liquidation preference per Series B Preferred Share (the "ISSUANCE RATE").
(ii) All distributions shall be cumulative, shall accrue from the
original date of issuance and will be payable (i) quarterly in arrears, on March
31, June 30, September 30 and December 31 of each year, commencing on the first
of such dates to occur after the original date of issuance and, (ii) in the
event of a redemption, on the redemption date (each a "PREFERRED SHARES
DISTRIBUTION PAYMENT DATE"). The amount of the distribution payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full quarterly period for which distributions
are computed, the amount of the distribution payable will be computed based on
the ratio of the actual number of days elapsed in such period to ninety (90)
days. If any date on which distributions are to be made on the Series B
Preferred Shares is not a Business Day (as defined herein), then payment of the
distribution to be made on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
Distributions on the Series B Preferred Shares will be made to the holders of
record of the Series B Preferred Shares on the relevant record dates, which,
unless otherwise provided by the Company with respect to any distribution, will
be fifteen (15) Business Days prior to the relevant Preferred Shares
Distribution Payment Date (each a "DISTRIBUTION RECORD DATE"). Notwithstanding
anything to the contrary set forth herein, each Series B Preferred Share shall
also continue to accrue all accrued and unpaid distributions up to the exchange
date on any Series B Preference Unit (as defined in the Second Restated and
Amended Agreement of Limited Partnership of Liberty Property Limited
Partnership, dated as of October 22, 1997, as amended
8
(the "PARTNERSHIP AGREEMENT")) validly exchanged into such Series B Preferred
Share in accordance with the provisions of such Partnership Agreement.
(iii) "BUSINESS DAY" shall mean each day, other than a Saturday or a
Sunday, which is not a day on which banking institutions in New York, New York
are authorized or required by law, regulation or executive order to close.
(b) Limitation on Distributions. No distributions on the Series B
Preferred Shares shall be declared or paid or set apart for payment by the
Company at such time as the terms and provisions of any agreement of the
Company, including any agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, payment or setting
apart for payment shall be restricted or prohibited by law.
(c) Distributions Cumulative. Notwithstanding the foregoing,
distributions on the Series B Preferred Shares will accrue whether or not the
terms and provisions set forth in SECTION 3(B) hereof at any time prohibit the
current payment of distributions, whether or not the Company has earnings,
whether or not there are funds legally available for the payment of such of such
distributions and whether or not such distributions are authorized or declared.
Accrued but unpaid distributions on the Series B Preferred Shares will
accumulate as of the Preferred Shares Distribution Payment Date on which they
first become payable. Accumulated and unpaid distributions will not bear
interest.
(d) Priority as to Distributions.
(i) So long as any Series B Preferred Shares 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 Common Shares
or any class or series of other Shares of the Company ranking junior as to the
payment of distributions to the Series B Preferred Shares (such Common Shares or
other junior shares including, without limitation, Series A Junior Participating
Preferred Shares authorized pursuant to Articles Supplementary filed with the
Department on December 23, 1997, collectively, "JUNIOR SHARES"), nor shall any
cash or other property be set aside for or applied to the purchase, redemption
or other acquisition for consideration of any Series B Preferred Shares, any
Parity Preferred Shares with respect to distributions or any Junior Shares,
unless, in each case, all distributions accumulated on all Series B Preferred
Shares and all classes and series of outstanding Parity Preferred Shares as to
payment of distributions have been paid in full. The foregoing sentence will not
prohibit (i) distributions payable solely in Junior Shares, (ii) the conversion
of Junior Shares or Parity Preferred Shares into Shares of the Company ranking
junior to the Series B Preferred Shares as to distributions and upon
liquidation, winding-up or dissolution, and (iii) purchase by the Company of
such Series B Preferred Shares, Parity Preferred Shares with respect to
distributions or Junior Shares pursuant to Article VII of the Charter to the
extent required to preserve the Company' s status as a real estate investment
trust.
9
(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
immediate payment) upon the Series B Preferred Shares and the Shares of any
class or series of outstanding Parity Preferred Shares, all distributions
authorized and declared on the Series B Preferred Shares and all classes or
series of outstanding Parity Preferred Shares with respect to distributions
shall be authorized and declared pro rata so that the amount of distributions
authorized and declared per share of Series B Preferred Shares and such other
classes or series of Parity Preferred Shares shall in all cases bear to each
other the same ratio that accrued distributions per share on the Series B
Preferred Shares and such other classes or series of Parity Preferred Shares
(which shall not include any accumulation in respect of unpaid distributions for
prior distribution periods if such class or series of Parity Preferred Shares do
not have cumulative distribution rights) bear to each other. No interest, or sum
of money in lieu of interest, shall be payable in respect of any dividend
payment or payments on Series B Preferred Shares or any other Parity Preferred
Shares which may be in arrears.
(e) If, for any taxable year, the Company elects to designate as
"capital gain dividends" (as defined in Section 857 of the Internal Revenue Code
of 1986, as amended (the "Code")) any portion (the "Capital Gains Amount") of
the dividends (within the meaning of the Code) paid or made available for the
year to holders of all classes of shares of beneficial interest in the Company
(the "Total Dividends"), then the portion of the Capital Gains Amount that will
be allocable to the holders of the Series B Preferred Units will be the Capital
Gains Amount multiplied by a fraction, the numerator of which will be the total
dividends (within the meaning of the Code) paid or made available to the holders
of the Series B Preferred Units for the year and the denominator of which shall
be the Total Dividends.
(f) No Further Rights. Holders of Series B Preferred Shares shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
SECTION 4. LIQUIDATION PREFERENCE.
(a) Payment of Liquidating Distributions. Subject to the rights of
holders of Parity Preferred Shares with respect to rights upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and subject to
equity securities ranking senior to the Series B Preferred Shares with respect
to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Company, the holders of Series B Preferred Shares shall be
entitled to receive out of the assets of the Company legally available for
distribution or the proceeds thereof, after payment or provision for debts and
other liabilities of the Company, but before any payment or distributions of the
assets shall be made to holders of Common Shares or any other class or series of
shares of the Company that ranks junior to the Series B Preferred Shares as to
rights upon liquidation, dissolution or winding-up of the Company, an amount
equal to the sum of (i) a liquidation preference of $25 per share of Series B
Preferred Shares, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, 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 B Preferred Shares and any Parity
Preferred Shares as to rights upon
10
liquidation, dissolution or winding-up of the Company, all payments of
liquidating distributions on the Series B Preferred Shares and such Parity
Preferred Shares shall be made so that the payments on the Series B Preferred
Shares and such Parity Preferred Shares shall in all cases bear to each other
the same ratio that the respective rights of the Series B Preferred Shares and
such other Parity Preferred Shares (which shall not include any accumulation in
respect of unpaid distributions for prior distribution periods if such Parity
Preferred Shares do not have cumulative distribution rights) upon liquidation,
dissolution or winding-up of the Company bear to each other.
(b) Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Company, 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 sixty (60) days
prior to the payment date stated therein, to each record holder of the Series B
Preferred Shares at the respective addresses of such holders as the same shall
appear on the share transfer records of the Company.
(c) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series B
Preferred Shares will have no right or claim to any of the remaining assets of
the Company.
(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 Company to, or the consolidation or merger or other business
combination of the Company with or into any corporation, trust or other entity
(or of any corporation, trust or other entity with or into the Company) shall
not be deemed to constitute a liquidation, dissolution or winding-up of the
Company.
SECTION 5. OPTIONAL REDEMPTION.
(a) Right of Optional Redemption. The Series B Preferred Shares may not
be redeemed prior to August 31, 2009. However, in order to ensure that the
Company remains a qualified real estate investment trust ("REIT") for federal
income tax purposes, the Series B Preferred Shares shall be subject to the
provisions of Article VII of the Charter pursuant to which Series B Preferred
Shares owned by a shareholder in excess of the Ownership Limit (as defined in
the Charter) will automatically be exchanged for Excess Shares (as defined in
the Charter) and the Company will have the right to purchase Excess Shares from
the holder. On or after August 31, 2009, the Company shall have the right to
redeem the Series B Preferred Shares, in whole or in part, at any time or from
time to time, upon not less than 30 nor more than 60 days' written notice, at a
redemption price, payable in cash, equal to $25 per Series B Preferred Share
plus accumulated and unpaid distributions, whether or not declared, to the date
of redemption. If fewer than all of the outstanding Series B Preferred Shares
are to be redeemed, the Series B Preferred Shares to be redeemed shall be
selected pro rata (as nearly as practicable without creating fractional units).
11
(b) Limitation on Redemption. (i) The redemption price of the Series B
Preferred Shares (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 Company and from no other source. For purposes of the preceding
sentence, "capital stock" means any equity securities (including Common Shares
and Preferred Shares), shares, participation or other ownership interests
(however designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities) or options to purchase any of the
foregoing.
(ii) The Company may not redeem fewer than all of the outstanding
Series B Preferred Shares unless all accumulated and unpaid distributions have
been paid in full (or a sum sufficient for such payment has been irrevocably
deposited in trust for immediate payment) on all outstanding Series B Preferred
Shares for all quarterly distribution periods, including the current period,
terminating on or prior to the date of redemption provided, however, that the
foregoing shall not prevent the purchase by the Company of Excess Shares in
order to ensure that the Company remains qualified as a REIT for federal income
tax purposes or the purchase or acquisition of Series B Preferred Shares
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding Series B Preferred Shares.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed, and (ii) mailed by the
Company, postage prepaid, not less than thirty (30) nor more than sixty (60)
days prior to the redemption date, addressed to the respective holders of record
of the Series B Preferred Shares to be redeemed at their respective addresses as
they appear on the transfer records of the Company. No failure to give or defect
in such notice shall affect the validity of the proceedings for the redemption
of any Series B Preferred Shares except as to the holder to whom such notice was
defective or not given. In addition to any information required by law or by the
applicable rules of any exchange upon which the Series B Preferred Shares may be
listed or admitted to trading, each such notice shall state: (i) the redemption
date, (ii) the redemption price, (iii) the number of Series B Preferred Shares
to be redeemed, (iv) the place or places where such Series B Preferred Shares
are to be surrendered for payment of the redemption price, (v) that
distributions on the Series B Preferred Shares to be redeemed will cease to
accumulate on such redemption date and (vi) that payment of the redemption price
and any accumulated and unpaid distributions will be made upon presentation and
surrender of such Series B Preferred Shares. If fewer than all of the Series B
Preferred Shares held by any holder are to be redeemed, the notice mailed to
such holder shall also specify the number of Series B Preferred Shares held by
such holder to be redeemed.
(ii) If the Company gives a notice of redemption in respect of
Series B Preferred Shares (which notice will be irrevocable) then, by 12:00
noon, New York City time, on the redemption date, the Company will deposit
irrevocably in trust for the benefit of the Series B Preferred Shares being
redeemed funds sufficient to pay the applicable redemption price, plus any
accumulated and unpaid distributions, if any, on such shares to the date fixed
for redemption, without interest, and will give irrevocable instructions and
authority to pay such redemption price and any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the holders of
the Series B Preferred Shares upon surrender of the Series B Preferred
12
Shares by such holders at the place designated in the notice of redemption. If
fewer than all Series B Preferred Shares evidenced by any certificate is being
redeemed, a new certificate shall be issued upon surrender of the certificate
evidencing all Series B Preferred Shares, evidencing the unredeemed Series B
Preferred Shares without cost to the holder thereof. On and after the date of
redemption, distributions will cease to accumulate on the Series B Preferred
Shares or portions thereof called for redemption, unless the Company defaults in
the payment thereof. If any date fixed for redemption of Series B Preferred
Shares is not a Business Day, then payment of the redemption price payable on
such date will be made on the next succeeding day that is a Business 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 be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If payment of the
redemption price or any accumulated or unpaid distributions in respect of the
Series B Preferred Shares is improperly withheld or refused and not paid by the
Company, distributions on such Series B Preferred Shares will continue to
accumulate from the original redemption date to the date of payment, in which
case the actual payment date will be considered the date fixed for redemption
for purposes of calculating the applicable redemption price and any accumulated
and unpaid distributions.
(d) Application of Article VII. The Series B Preferred Shares are
subject to the provisions of Article VII of the Charter, including, without
limitation, the provision for the redemption of Excess Shares. Notwithstanding
the provisions of Article IX of the Charter, Series B Preferred Shares which
have been exchanged pursuant to the Charter for Excess Shares may be redeemed,
in whole or in part, at any time or from time to time, for cash at a redemption
price of $25.00 per share, plus all accrued and unpaid distributions thereon to
the date of redemption, without interest. If less than all of the outstanding
Excess Shares are to be redeemed, the Excess Shares to be redeemed shall be
selected pro rata (as nearly as may be practicable without creating fractional
shares).
(e) Status of Redeemed Shares. Any Series B Preferred Shares that shall
at any time have been redeemed shall after such redemption, have the status of
authorized but unissued Preferred Shares, without designation as to class or
series until such shares are once more designated as part of a particular class
or series by the Board.
SECTION 6. VOTING RIGHTS.
(a) General. Holders of the Series B Preferred Shares will not have any
voting rights, except as set forth below.
(b) Right to Elect Trustees.
(i) If at any time full distributions shall not have been timely
made on any Series B Preferred Shares with respect to any six (6) prior
quarterly distribution periods, whether or not consecutive, (a "PREFERRED
DISTRIBUTION DEFAULT"), the holders such Series B Preferred Shares, voting
together as a single class with the holders of each class or series of Parity
Preferred Shares upon which like voting rights have been conferred and are
exercisable, will have the right to elect two (2) additional trustees to serve
on the Company's Board (the
13
"PREFERRED SHARES TRUSTEES") at a special meeting called in accordance with
Section 6(b)(ii) (unless such request is received less than ninety (90) days
before the date fixed for the next annual meeting) or at the next annual meeting
of shareholders, and at each subsequent annual meeting of shareholders or
special meeting held in place thereof, until all such distributions in arrears
and distributions for the current quarterly period on the Series B Preferred
Shares and each such class or series of Parity Preferred Shares have been paid
in full or an amount sufficient for such payment has been irrevocably deposited
in trust for immediate payment.
(ii) At any time when such voting rights shall have vested, a
proper officer of the Company shall call or cause to be called, upon written
request of holders of record of at least 20% of the outstanding Series B
Preferred Shares, a special meeting of the holders of Series B Preferred Shares
and all the series of Parity Preferred Shares upon which like voting rights have
been conferred and are exercisable (collectively, the "PARITY SECURITIES") by
mailing or causing to be mailed to such holders a notice of such special meeting
to be held not less than ten and not more than 45 days after the date such
notice is given. The record date for determining holders of the Parity
Securities entitled to notice of and to vote at such special meeting will be the
close of business on the third Business Day preceding the day on which such
notice is mailed. At any such special meeting, all of the holders of the Parity
Securities, by plurality vote, voting together as a single class without regard
to series will be entitled to elect two directors on the basis of one vote per
$25.00 of liquidation preference to which such Parity Securities are entitled by
their terms (excluding amounts in respect of accumulated and unpaid dividends)
and not cumulatively. The holder or holders of one-third of the Parity
Securities then outstanding, present in person or by proxy, will constitute a
quorum for the election of the Preferred Shares Trustees except as otherwise
provided by law. Notice of all meetings at which holders of the Series B
Preferred Shares shall be entitled to vote will be given to such holders at
their addresses as they appear in the transfer records. At any such meeting or
adjournment thereof in the absence of a quorum, subject to the provisions of any
applicable law, a majority of the holders of the Parity Securities present in
person or by proxy shall have the power to adjourn the meeting for the election
of the Preferred Shares Trustees, without notice other than an announcement at
the meeting, until a quorum is present. If a Preferred Distribution Default
shall terminate after the notice of a special meeting has been given but before
such special meeting has been held, the Company shall, as soon as practicable
after such termination, mail or cause to be mailed notice of such termination to
holders of the Series B Preferred Shares that would have been entitled to vote
at such special meeting.
(iii) If and when all accumulated distributions and the distribution
for the current distribution period on the Series B Preferred Shares shall have
been paid in full or a sum sufficient for such payment is irrevocably deposited
in trust for payment, the holders of the Series B Preferred Shares shall be
divested of the voting rights set forth in SECTION 6(B) herein (subject to
revesting in the event of each and every Preferred Distribution Default) and, if
all distributions in arrears and the distributions for the current distribution
period have been paid in full or set aside for payment in full on all other
classes or series of Parity Preferred Shares upon which like voting rights have
been conferred and are exercisable, the term and office of each Preferred Shares
Trustees so elected shall terminate. Any Preferred Shares Trustees may be
removed at any time with or without cause by the vote of, and shall not be
removed otherwise than by the vote of, the holders of record of a majority of
the outstanding Series B Preferred
14
Shares when they have the voting rights set forth in SECTION 6(B) (voting
separately as a single class with all other classes or series of Parity
Preferred Shares upon which like voting rights have been conferred and are
exercisable). So long as a Preferred Distribution Default shall continue, any
vacancy in the office of a Preferred Shares Trustees may be filled by written
consent of the Preferred Shares Trustees remaining in office, or if none remains
in office, by a vote of the holders of record of a majority of the outstanding
Series B Preferred Shares when they have the voting rights set forth in SECTION
6(B) (voting separately as a single class with all other classes or series of
Parity Preferred Shares upon which like voting rights have been conferred and
are exercisable). The Preferred Shares Director shall each be entitled to one
vote per director on any matter.
(c) Certain Voting Rights. So long as any Series B Preferred Shares
remain outstanding, the Company shall not, without the affirmative vote of the
holders of at least two thirds of the Series B Preferred Shares outstanding at
the time (i) (A) designate or create, or increase the authorized or issued
amount of, any class or series of shares ranking senior to the Series B
Preferred Shares with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up, (B) reclassify any authorized shares of
the Company into any such shares, or (C) create, authorize or issue any
obligations or security convertible into or evidencing the right to purchase any
such shares, (ii) (A) designate or create, or increase the authorized or issued
amount of, any Parity Preferred Shares, (B) reclassify any authorized shares of
the Company into a Parity Preferred Shares or (C) create, authorize or issue any
obligations or security convertible into or evidencing the right to purchase any
Parity Preferred Share; provided, that restrictions contained in the clause (ii)
of this Paragraph (c) shall apply only to Parity Preferred Shares that are
issued to an Affiliate of the Company other than on arm's length terms, or (iii)
either (A) consolidate, or merge into or with, any corporation or other entity,
or (B) amend, alter or repeal the provisions of the Company's Charter (including
these Articles Supplementary) or By-laws, whether by merger, consolidation or
otherwise, in such a way that would materially and adversely affect the powers,
special rights, preferences, privileges or voting power of the Series B
Preferred Shares or the holders thereof; provided, however, that with respect to
the occurrence of a merger or consolidation, so long as (a) the Company is the
surviving entity and the Series B Preferred Shares remains outstanding with the
terms thereof unchanged, or (b) the resulting, surviving or transferee entity is
a corporation organized under the laws of any state and substitutes for the
Series B Preferred Shares other Preferred Shares having substantially the same
terms and same rights as the Series B Preferred Shares, 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 materially
and adversely affect the rights, privileges or voting powers of the holders of
the Series B Preferred Shares; provided further, that any increase in the amount
of authorized Preferred Shares or the creation or issuance of any other class or
series of Preferred Shares or any increase in an amount of authorized shares of
each class or series, shall not be deemed to materially and adversely affect the
rights, preferences, privileges or voting powers of the Series B Preferred
Shares, if such Series B Preferred Shares rank (y) junior to the Series B
Preferred Shares with respect to payment of distributions or the distribution of
assets upon liquidation, dissolution or winding-up, or (z) on a parity with the
Series B Preferred Shares with respect to payment of distributions or the
distribution of assets upon liquidation, dissolution or winding-up; provided,
that any Series B Preferred Shares issued in reliance on the preceding clause
(z) shall not have been issued to an
15
Affiliate of the Company or are issued to such Affiliate on arm's length terms.
In the event of any conflict or inconsistency between this Section 6 and
Sections 8.2, 10.1 and 10.3 of the Charter, this Section 6 shall control.
SECTION 7. TRANSFER RESTRICTIONS. The Series B Preferred Shares
shall be subject to the provisions of Article VII of the Charter.
SECTION 8. NO CONVERSION RIGHTS. The holders of the Series B
Preferred Shares shall not have any rights to convert such shares into shares of
any other class or series of shares or into any other securities of, or interest
in, the Company except that the Series B Preferred Shares may be exchanged by
the Company for Excess Shares, in accordance with the Charter.
SECTION 9. NO SINKING FUND. No sinking fund shall be established for
the retirement or redemption of Series B Preferred Shares.
SECTION 10. NO PREEMPTIVE RIGHTS. No holder of the Series B
Preferred Shares of the Company shall, as such holder, have any preemptive
rights to purchase or subscribe for additional Shares of the Company or any
other security of the Company which it may issue or sell.
SECOND: The Series B Preferred Shares have been classified and
designated by the Board under the authority contained in the Charter.
THIRD: These Articles Supplementary have been approved by the Board
in the manner and by the vote required by law.
FOURTH: These Articles Supplementary shall be effective at the time
the State Department of Assessments and Taxation of Maryland accepts these
Articles Supplementary for record.
FIFTH: The undersigned Chairman of the Board of Trustees and Chief
Executive Officer of the Company acknowledges these Articles Supplementary to be
the corporate act of the Company and, as to all matters or facts required to be
verified under oath, the undersigned Chairman of the Board of Trustees and Chief
Executive Officer acknowledges that to the best of his knowledge, information
and belief, these matters and facts are true in all material respects and that
this statement is made under the penalties for perjury.
16
IN WITNESS WHEREOF, the Company has caused these Articles
Supplementary to be executed under seal in its name and on its behalf by its
President and Chief Executive Officer and attested to by its Secretary on this
31st day of August, 2004.
LIBERTY PROPERTY TRUST
By: /s/ William P. Hankowsky
--------------------------------
Name: William P. Hankowsky
Title: Chairman, President and Chief
Executive Officer
[SEAL]
ATTEST:
/s/ James J. Bowes
---------------------
Name: James J. Bowes
Title: Secretary
17