Exhibit 3.5
THIRD AMENDMENT
TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
CHELSEA GCA REALTY PARTNERSHIP, L.P.
THIS THIRD AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP (THIS
"AMENDMENT"), dated as of September 3, 1999, is entered into by CHELSEA GCA
REALTY, INC., a Maryland corporation, as general partner (the "GENERAL PARTNER")
of CHELSEA GCA REALTY PARTNERSHIP, L.P. (the "Partnership"), for itself and on
behalf of the existing limited partners of the Partnership, and TMCT II, LLC, a
Delaware limited liability company ("LLC").
WHEREAS, Section 4.5 of the Agreement of Limited Partnership of the
Partnership (as amended to date, the "PARTNERSHIP AGREEMENT") authorizes the
General Partner to cause the Partnership to issue additional Partnership Units
in one or more classes or series, with such designations, preferences and
relative, participating, optional or other special rights, powers and duties as
shall be determined by the General Partner, subject to the provisions of such
section; and
WHEREAS, pursuant to the authority granted to the General Partner
pursuant to Sections 4.5 and 14.1(B) of the Partnership Agreement, the General
Partner desires to amend the Partnership Agreement (i) to establish a new class
of Partnership Units, the 9.00% Series B Cumulative Redeemable Preferred
Partnership Units (the "Series B Preferred Partnership Units"), and to set forth
the designations, rights, powers, preferences and duties of such Series B
Preferred Partnership Units, (ii) to issue the Series B Preferred Partnership
Units to LLC and admit LLC as Additional Limited Partner and (iii) to make
certain other changes to the Partnership Agreement.
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged, the General
Partner hereby amends the Partnership Agreement as follows:
Section 1. AMENDMENTS TO CERTAIN SECTIONS OF THE PARTNERSHIP AGREEMENT.
The following sections of the Partnership Agreement shall be amended
as set forth below:
(a) A new subsection C shall be added to the end of Section 14.1 of
the Partnership Agreement as follows:
"C. Notwithstanding any other provisions of this Agreement, this
Agreement shall not be amended, and no action may be taken by the General
Partner, without the Consent of each Partner adversely affected if such
amendment or action would (i) convert a Limited Partner's interest in the
Partnership into a general partner's interest (except as the result of the
General Partner acquiring such interest), (ii) modify the limited liability
of a Limited Partner, (iii) alter rights of the Partner to receive
distributions pursuant to Article 5, Section 13.2, Section 7.1.A(3) or the
allocations specified in Article 6 (except as permitted pursuant to Section
4.51 or 7.3.C(3)), (iv) cause the termination of the Partnership prior to
the time set forth in Sections 2.5 or 13.1, (v) alter the redemption or
exchange rights as set forth in the documents establishing such rights, or
(vi) amend this Section 14.1 (as amended hereby). Further, no amendment may
alter the restrictions on the General Partner's authority set forth
elsewhere in this Partnership Agreement without the Consent specified in
such section. Any such amendment or action consented to by any Limited
Partner shall be effective as to that Limited Partner, notwithstanding the
absence of such consent by any other Limited Partner."
(b) Section 4.5.F of the Partnership Agreement is amended by
adding the following sentence after the first sentence thereof:
"The Partnership also may from time to time issue to any Person
additional Partnership Units or other Partnership Interests in such classes and
having such designations, preferences and relative rights (including preferences
and rights senior to the existing Limited Partnership Interests, to the extent
not otherwise prohibited by the instruments creating such existing Limited
Partnership Interests) as shall be determined by the General Partner in
accordance with the Act and governing law."
(c) Section 8.4 of the Partnership Agreement is amended by
deleting the last sentence thereof and replacing it with the following:
"Except as otherwise expressly provided in this Agreement (as the
same may be amended from time to time in accordance with its provisions),
no Limited Partner or Assignee shall have priority over any other Limited
Partner or Assignee either as to the return of Capital Contributions or as
to profits, losses, distributions or credits."
Section 2. AMENDMENT TO TAX PROVISIONS.
(a) Section 6.2 of the Partnership Agreement is hereby deleted in
its entirety and the following new Section 6.2 is inserted in its place:
"Section 6.2 Allocations of Net Income and Net Loss
For purposes of maintaining the Capital Accounts and in
determining the rights of the Partners among themselves, the Partnership's items
of income, gain, loss and deduction shall be allocated among the Partners in
each taxable year (or portion thereof) as provided herein below.
A. Net Income. After giving effect to the special allocations set
forth in Section 6.3, Net Income shall be allocated in the
following manner and order of priority:
(1) First, to the General Partner until the cumulative
allocations of Net income under this Section 6.2.A.(1) equal the cumulative
Net Losses allocated to the general Partner under Section 6.2.B.(4) hereof;
(2) Second, to the General Partner and the Holders of Series B
Preferred Partnership Units until the cumulative allocations of Net Income
under this Section 6.2.A.(2) equal the cumulative allocations of Net Loss
to the General Partner and the Holders of Series B Preferred Partnership
Units under Section 6.2.B.(3) hereof (such allocations of Net Income to be
in proportion to the cumulative allocation of Net Loss under Section
6.2.B.(3);
(3) Third, to those Partners who have received allocations of Net
Loss under Section 6.2.B.(2) hereof until the cumulative allocations of Net
Income under this Section 6.2.A.(3) equal such cumulative allocations of
Net Loss (such allocation of Net Income to be in proportion to the
cumulative allocations of Net Loss under such section to each such
Partner);
(4) Fourth, to the Partners until the cumulative allocations of
Net Income under this Section 6.2.A.(4) equal the cumulative allocations of
Net Loss to such Partners under Section 6.2.B.(1) hereof (such allocation
of Net Income to be in proportion to the cumulative allocations of net Loss
under such section to each such Partner); and
(5) Fifth, any remaining Net Income shall be allocated to the
Partners who hold Common Partnership Units in proportion to their
respective Percentage Interests as Holders of Common Partnership Units.
B. Net Losses. After giving effect to the special allocations set
forth in Section 6.3, Net Losses shall be allocated to the
Partners as follows:
(1) To the Partners who hold Common Partnership Units in accordance
with their respective Percentage Interests as holders of Common Partnership
Units, except as otherwise provided in this Section 6.2.B.
(2) To the extent that an allocation of Net Loss under Section
6.2.B.(1) would cause a Partner to have an Adjusted Capital Account Deficit
at the end of such taxable year (or increase any existing Adjusted Capital
Account Deficit of such Partner), such Net Loss shall instead be allocated
to those Partners (other than holders of Series B Preferred Partnership
Units), if any, for whom such allocation of Net Loss would not cause or
increase an Adjusted Capital Account Deficit. Solely for purposes of this
Section 6.2.B.(2), the Adjusted Capital Account Deficit, in the case of the
General Partner, shall be determined without regard to the amount credited
to the General Partner's Capital Account for the aggregate Liquidation
Preference Amount attributable to the General Partner's Preferred
Partnership Units. The Net Loss allocated under this Section 6.2.B.(2)
shall be allocated among the Partners who may receive such allocation in
proportion to and to the extent of the respective amounts of Net Loss that
could be allocated to such Partners without causing such Partners to have
an Adjusted Capital Account Deficit.
(3) Any remaining Net Loss shall be allocated to the General Partner
and the holders of Series B Preferred Partnership Units to the extent that
such allocation of Net Loss would not cause or increase an Adjusted Capital
Account Deficit of the General Partner or the Holders of the Series B
Preferred Partnership Units, in proportion to each party's aggregate
Capital Contribution with respect to its Preferred Partnership Units.
(4) Any remaining Net Loss shall be allocated to the General Partner."
(b) Section 6.3(C) of the Partnership Agreement is hereby deleted in
its entirety and the following new Section 6.3(C) is inserted in its place:
"(C) Priority Allocation With Respect To Preferred Partnership
Units. After taking into account the special allocation
provisions of Section 6.3(A), all or a portion of the
remaining items of Partnership gross income or gain for the
Partnership Year, if any, shall be specially allocated to
the General Partner and the Holders of Series B Preferred
Partnership Units in proportion and up to the amounts equal
to the excess, if any, of the cumulative distributions
received by the General Partner and the Holders of Series B
Preferred Partnership Units, respectively, pursuant to
Section 5.1(i) hereof for the current Partnership Year and
all prior Partnership Years (other than any distributions
that are treated as being in satisfaction of the Liquidation
Preference Amount for any Preferred Partnership Units) over
the cumulative allocations of Partnership gross income and
gain to the General Partner and the Holders of Series B
Preferred Partnership Units, respectively, under this
Section 6.3(c) for all prior Partnership Years."
Section 3. SERIES B CERTIFICATE OF DESIGNATIONS.
The Partnership Agreement is hereby amended by the adoption of the
Series B Preferred Partnership Unit Certificate of Designations attached hereto
as Attachment 1 setting forth the designations, rights, powers, duties and
preferences of the Series B Preferred Partnership Units.
Section 4. ADMISSION OF NEW LIMITED PARTNER.
(a) The Partnership Agreement is hereby amended by adding to the
current Exhibit A attached to the Partnership Agreement the names of the Series
B Limited Partners.
(b) Pursuant to and in accordance with Sections 4.5(D) and 12.2 of the
Partnership Agreement, the General Partner hereby consents to the admission of
LLC as an Additional Limited Partner and, subject only to the contribution by
The Times Mirror Company to the Partnership of the Contribution Amount, General
Partner does hereby admit LLC as an Additional Limited Partner and the
Partnership hereby issues to LLC 1,300,000 Series B Preferred Partnership Units.
LLC hereby adopts, accepts, ratifies, confirms and agrees to be bound by the
terms of the Partnership Agreement applicable to it as a Limited Partner, as
amended by the provisions hereof (including Attachment 1).
Section 5. MISCELLANEOUS.
(a) Except as amended by the provisions hereof, the Partnership
Agreement shall remain in full force and effect in accordance with its terms and
is hereby ratified, confirmed and approved by the undersigned for all purposes
and in all respects.
(b) This Amendment shall be binding upon and shall inure to the
benefit of the parties hereto, their respective legal representatives,
successors and permitted assigns.
(c) This Amendment may be executed in counterparts, all of which taken
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or
same counterpart.
(d) Capitalized terms used but not otherwise defined in this Amendment
shall have the meanings ascribed in the Partnership Agreement or, if not defined
therein, the meanings ascribed to them in the Contribution Agreement by and
among The Times Mirror Company, TMCT II, LLC, Chelsea GCA Realty Partnership,
L.P. and Chelsea GCA Realty, Inc., dated as of September 3, 1999.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 3 to the Partnership Agreement to be executed as of the day
and year first above written.
CHELSEA GCA REALTY
PARTNERSHIP, L.P.
By: Chelsea GCA Realty, Inc.
General Partner
By:
----------------------------
LIMITED PARTNERS
WOODBURY FAMILY ASSOCIATES, L.P.
By:
----------------------------
David C. Bloom
----------------------------
David C. Bloom
----------------------------
Leslie T. Chao
----------------------------
Barry M. Ginsburg
----------------------------
William D. Bloom
TMCT II, LLC
By: The Times Mirror Company,
its Managing Member
By:
---------------------------
Name:
Title:
ATTACHMENT I TO THIRD AMENDMENT OF
AGREEMENT OF LIMITED PARTNERSHIP
OF
CHELSEA GCA REALTY PARTNERSHIP, L.P.
Section 1. DESIGNATION AND NUMBER. A series of Partnership Units in the
Partnership designated as 9.00% Series B Cumulative Redeemable Preferred
Partnership Units (the "Series B PREFERRED PARTNERSHIP UNITS") is hereby
established. The number of Series B Preferred Partnership Units shall be
1,300,000.
Section 2. DISTRIBUTIONS.
A. PAYMENT OF DISTRIBUTIONS. Subject to the rights of holders of Parity
Preferred Partnership Units as to the payment of distributions, holders of
Series B Preferred Partnership Units will be entitled to receive, when, as and
if declared by the Partnership acting through the General Partner, out of
Available Cash, cumulative preferential cash distributions at the rate per annum
of 9.00% of the original Capital Contribution per Series B Preferred Partnership
Unit. Such distributions shall be cumulative, shall accrue from the original
date of issuance and will be payable (i) quarterly in arrears for the
three-month periods ending on the last day of February, May, August and
November, such dividends to be payable for the quarter just ended on the lst day
of each of March, June, September and December of each year, commencing on
December 1, 1999, and (ii) in the event of (a) an exchange of Series B Preferred
Partnership Units for Series B Preferred Shares, or (b) a redemption of Series B
Preferred Partnership Units, on the exchange date or redemption date, as
applicable (each A "SERIES B PREFERRED PARTNERSHIP UNIT DISTRIBUTION PAYMENT
DATE"). The amount of the distribution payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and, for any period
shorter than a full quarterly period for which distributions are computed, the
amount of the distribution payable will be computed 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 Partnership Units
is not a Business Day, then payment of the distribution to be made on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series B Preferred
Partnership Units will be made to the holders of record of the Series B
Preferred Partnership Units on the relevant record dates, which will be fifteen
(15) days prior to the relevant Series B Preferred Partnership Unit Distribution
Payment Date (the "SERIES B PREFERRED PARTNERSHIP UNIT PARTNERSHIP RECORD
DATE").
B. DISTRIBUTIONS CUMULATIVE. Distributions on the Series B Preferred Partnership
Units will accrue whether or not declared, whether or not the terms and
provisions of any agreement of the Partnership at any time, including any
agreement relating to its indebtedness, prohibit the current authorization,
payment or setting aside for payment of distributions, whether or not the
Partnership has earnings, whether or not there are funds legally available for
the payment of such distributions and whether or not such distributions are
authorized. Accrued but unpaid distributions on the Series B Preferred
Partnership Units will accumulate as of the Series B Preferred Partnership Unit
Distribution Payment Date on which they first become payable. Accumulated and
unpaid distributions will not bear interest.
C. PRIORITY AS TO DISTRIBUTIONS. (i) So long as any Series B Preferred
Partnership Units are outstanding, no distribution of cash or other property
shall be authorized, declared, paid or set apart for payment on or with respect
to Junior Units, nor shall any cash or other property (other than capital stock
of the General Partner which corresponds in ranking to the Partnership Interests
being acquired) be set aside for or applied to the purchase, redemption or other
acquisition for consideration of any Series B Preferred Partnership Units, any
Parity Preferred Partnership Units or any Junior Units, unless, in each case,
all distributions accumulated on all Series B Preferred Partnership Units and
all classes and series of outstanding Parity Preferred Partnership Units have
been paid in full. The foregoing sentence will not prohibit (a) distributions
payable solely in Junior Units, (b) the exchange or conversion of Junior Units
or Parity Preferred Partnership Units into Partnership Interests of the
Partnership ranking junior to the Series B Preferred Partnership Units as to
distributions and rights upon involuntary or voluntary liquidation, dissolution
or winding up of the Partnership, or (c) the redemption of Partnership Interests
corresponding to Series B Preferred Shares, Parity Preferred Stock or Junior
Stock to be purchased by the General Partner pursuant to the Charter with
respect to the General Partner's common stock and comparable Charter provisions
with respect to other classes or series of capital stock of the General Partner
to preserve the General Partner's status as a real estate investment trust,
provided that such redemption shall be upon the same terms as the corresponding
purchase pursuant to Article IV of the Charter or such other comparable
provisions.
(ii) So long as distributions have not been paid in full (or a
sum sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series B Preferred Partnership Units, all distributions
authorized and declared on the Series B Preferred Partnership Units and all
classes or series of outstanding Parity Preferred Partnership Units shall be
authorized and declared so that the amount of distributions authorized and
declared per Series B Preferred Partnership Unit and such other classes or
series of Parity Preferred Partnership Units shall in all cases bear to each
other the same ratio that accrued distributions per Series B Preferred
Partnership Unit and such other classes or series of Parity Preferred
Partnership Units (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such classes or series of Parity
Preferred Partnership Units do not have cumulative distribution rights) bear to
each other.
D. NO FURTHER RIGHTS. Holders of the Series B Preferred Partnership Units shall
not be entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
E. NO QUARTERLY DISTRIBUTIONS. No quarterly distributions on the Series B
Preferred Partnership Units shall be authorized by the General Partner or be
paid or set apart for payment by the Partnership at such time as the terms and
provisions of any agreement of the General Partner or the Partnership, including
any agreement relating to its indebtedness, prohibits such authorization,
payment or setting apart for payment or provides that such authorization,
payment or setting apart for payment would constitute a breach thereof or a
default thereunder, or if such authorization or payment shall be restricted or
prohibited by law.
Section 3. LIQUIDATION PROCEEDS.
A. DISTRIBUTIONS. Upon the voluntary or involuntary dissolution, liquidation or
winding up of the Partnership (a "liquidation"), the holders of the Series B
Preferred Partnership Units then outstanding, shall be entitled to receive in
cash or property (at its fair market value determined by the General Partner)
and to be paid out of the assets of the Partnership available for distribution
to its partners, before any payment or distribution shall be made on any Junior
Partnership Units, the amount of its Capital Contribution per Series B Preferred
Partnership Unit, plus accumulated and unpaid quarterly distributions, if any,
thereon to and including the date of liquidation.
B. NOTICE. Written notice of any such voluntary or involuntary liquidation,
dissolution or winding-up of the Partnership, stating the payment date or dates
when, and the place or places where, the amounts distributable in such
circumstances shall be payable, shall be given by first class mail, postage
pre-paid, not less than 30 days and not more that 60 days prior to the payment
date stated therein, to each record holder of the Series B Preferred Partnership
Units at the respective addresses of such holders as the same shall appear on
the transfer records of the Partnership.
C. NO FURTHER RIGHTS. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series B Preferred
Partnership Units will have no right or claim to any of the remaining assets of
the Partnership.
D. CONSOLIDATION, MERGER OR CERTAIN OTHER TRANSACTIONS. Neither the sale, lease
or conveyance of all or substantially all of the property or business of the
Partnership, nor the merger or consolidation of the Partnership into or with any
other entity or the merger or consolidation of any other entity into or with the
Partnership, shall be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes hereof.
E. PRO RATA DISTRIBUTION. IF, upon any voluntary or involuntary dissolution,
liquidation or winding up of the Partnership, the amounts payable with respect
to the preferred distributions on the Series B Preferred Partnership Units and
the Preferred Partnership Units of the Partnership ranking, as to any
liquidation rights, on a parity with the Series B Preferred Partnership Units
are not paid in full, the holders of the Series B Preferred Partnership Units
and any other Preferred Partnership Units ranking, as to liquidation rights, on
a parity with the Series B Preferred Partnership Units shall share ratably in
any such distribution of assets of the Partnership in proportion to the full
respective preference amounts to which they would otherwise be respectively
entitled.
Section 4. OPTIONAL REDEMPTION.
A. RIGHT OF OPTIONAL REDEMPTION. The Series B Preferred Partnership Units may
not be redeemed prior to the September 3, 2004. On or after such date, the
Partnership shall have the right to redeem the Series B Preferred Partnership
Units of any holder thereof, in whole or in part, at any time or from time to
time, upon not less then 30 days nor more than 60 days written notice, at a
redemption price, payable in cash, equal to the Capital Contribution for the
Series B Preferred Partnership Units plus all accumulated and unpaid
distributions, if any (the "SERIES B REDEMPTION PRICE"). If fewer than all of
the outstanding Series B Preferred Partnership Units are to be redeemed, the
Series B Preferred Partnership Units to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional units).
B. LIMITATION ON REDEMPTION.
(i) The Series B Redemption Price of the Series B Preferred
Partnership Units (other than the portion thereof consisting of accumulated but
unpaid distributions) will be payable solely out of the sale proceeds of capital
stock of the General Partner, which will be contributed by the General Partner
to the Partnership as an additional capital contribution, or out of the sale of
limited partner interests in the Partnership, and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock (as such terms are defined in the
Charter)), shares, depository 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 Partnership may not redeem fewer than all of the
outstanding Series B Preferred Partnership Units unless all accumulated and
unpaid distributions have been paid on all Series B Preferred Partnership Units
for all quarterly distribution periods terminating on or prior to the date of
redemption.
C. PROCEDURES FOR REDEMPTION.
(i) Notice of redemption will be mailed by the Partnership, by
certified mail, postage prepaid, not less than 30 days nor more than 60 days
prior to the redemption date, addressed to the respective holders of record of
the Series B Preferred Partnership Units at their respective addresses as they
appear on the records of the Partnership. No failure to give or defect in such
notice shall affect the validity of the proceedings for the redemption of any
Series B Preferred Partnership Units except as to the holder to whom such notice
was defective or not given. In addition to any information required by law, each
such notice shall state: (a) the redemption date, (b) the Series B Redemption
Price, (c) the aggregate number of Series B Preferred Partnership Units to be
redeemed and if fewer than all of the outstanding Series B Preferred Partnership
Units are to be redeemed, the number of Series B Preferred Partnership Units to
be redeemed held by such holder, which number shall equal such holder's pro rata
share (based on the percentage of the aggregate number of outstanding Series B
Preferred Partnership Units that the total number of Series B Preferred
Partnership Units held by such holder represents) of the aggregate number of
Series B Preferred Partnership Units to be redeemed, (d) the place or places
where such Series B Preferred Partnership Units are to be surrendered for
payment of the Series B Redemption Price, (e) that distributions on the Series B
Preferred Partnership Units to be redeemed will cease to accumulate on such
redemption date and (f) that payment of the Series B Redemption Price will be
made upon presentation and surrender of such Series B Preferred Partnership
Units.
(ii) If the Partnership gives a notice of redemption in respect
of Series B Preferred Partnership Units (which notice will be irrevocable) then,
by 12:00 noon, New York City time, on the redemption date, the Partnership will
deposit irrevocably in trust for the benefit of the holders of the Series B
Preferred Partnership Units being redeemed funds sufficient to pay the
applicable Series B Redemption Price and will give irrevocable instructions and
authority to pay such Series B Redemption Price to the holders of the Series B
Preferred Partnership Units upon surrender of the Series B Preferred Partnership
Units by such holders at the place designated in the notice of redemption. If
the Series B Preferred Partnership Units are evidenced by a certificate and if
fewer than all Series B Preferred Partnership Units evidenced by any certificate
are being redeemed, a new certificate shall be issued upon surrender of the
certificate evidencing all Series B Preferred Partnership Units, evidencing the
unredeemed Series B Preferred Partnership Units without cost to the holder
thereof. On and after the date of redemption, distributions will cease to
accumulate on the Series B Preferred Partnership Units or portions thereof
called for redemption, unless the Partnership defaults in the payment thereof.
If any date fixed for redemption of Series B Preferred Partnership Units is not
a Business Day, then payment of the Series B 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 Series B
Redemption Price is improperly withheld or refused and not paid by the
Partnership, distributions on such Series B Preferred Partnership Units will
continue to accumulate from the original redemption date to the date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the applicable Series B Redemption Price.
Section 5. VOTING RIGHTS.
A. General. Holders of the Series B Preferred Partnership Units will not have
any voting rights or right to consent to any matter requiring the consent or
approval of the Limited Partners, except as set forth below and in Section
14.1.C of the Partnership Agreement.
B. CERTAIN VOTING RIGHTS. So long as any Series B Preferred Partnership Units
remain outstanding, the Partnership shall not, without the affirmative vote or
consent of the holders of at least two-thirds of the Series B Preferred
Partnership Units outstanding at the time (i) authorize or create, or increase
the authorized or issued amount of, any class or series of Partnership Interests
ranking senior to the Series B Preferred Partnership Units with respect to
payment of distributions or rights upon liquidation, dissolution or winding-up
or reclassify any Partnership Interests of the Partnership into any such senior
Partnership Interest, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such senior
Partnership Interests, (ii) authorize or create, or increase the authorized or
issued amount of any Parity Preferred Units or reclassify any Partnership
Interest of the Partnership into any such Partnership Interest or create,
authorize or issue any obligations or securities convertible into or evidencing
the right to purchase any such Partnership Interests, but only to the extent
such Parity Preferred Units are issued to an affiliate of the Partnership, other
than (a) issuances to the General Partner to the extent the issuance of such
interests was to allow the General Partner to issue corresponding preferred
stock to persons who are not affiliates of the Partnership or (b) issuances to
affiliates other than the General Partner upon terms no more favorable to such
affiliates than those that the General Partner, in the good faith determination
of the disinterested members of its Board of Directors, would be willing to
offer to an unrelated party in an arm's length transaction (each of (a) and (b)
an "Affiliate Parity Placement"), or (iii) either consolidate, merge into or
with, or convey, transfer or lease its assets substantially as an entirety to,
any corporation or other entity or amend, alter or repeal the provisions of the
Partnership Agreement (including, without limitation, this Amendment), whether
by merger, consolidation or otherwise, in each case in a manner that would
materially and adversely affect the powers, special rights, preferences,
privileges or voting power of the Series B Preferred Partnership Units or the
holders thereof; provided, however, that with respect to the occurrence of any
event set forth in (iii) above, so long as (a) the Partnership is the surviving
entity and the Series B Preferred Partnership Units remain outstanding with the
terms thereof unchanged, or (b) the resulting, surviving or transferee entity is
a partnership, limited liability company or other pass-through entity organized
under the laws of any state and substitutes, for the Series B Preferred
Partnership Units, other interests in such entity having substantially the same
terms and rights as the Series B Preferred Partnership Units, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series B Preferred Partnership Units; and provided further that
any increase in the amount of Partnership Interests or the creation or issuance
of any other class or series of Partnership Interests, in each case ranking
either (a) junior to the Series B Preferred Partnership Units with respect to
payment of distributions and the distribution of assets upon liquidation,
dissolution or winding-up or (b) on a parity with the Series B Preferred
Partnership Units with respect to payment of distributions and the distribution
of assets upon liquidation, dissolution or winding-up to the extent such
Partnership Interests are not issued to an affiliate of the Partnership, other
than in an Affiliate Parity Placement, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers.
In addition to the foregoing, the Partnership will not (x) enter into any
contract, mortgage, loan or other agreement that prohibits or restricts, or has
the effect of prohibiting or restricting, the ability of a Preferred Limited
Partner to exercise its rights set forth herein to effect in full an exchange or
redemption pursuant to Section 7, except with the written consent of such
Preferred Limited Partner; or (y) amend, alter, or repeal or waive Sections 7.5
and 11.6.E(x) of the Partnership Agreement without the affirmative vote of at
least two-thirds of the Series B Preferred Partnership Units outstanding at the
time.
The foregoing voting provisions will not apply if, at or prior to the time when
the act with respect to which such vote would otherwise be required shall be
effected, all outstanding Series B Preferred Partnership Units shall have been
redeemed or called for redemption and sufficient funds shall have been deposited
in trust to effect such redemption.
C. ONE VOTE PER UNIT/NO GENERAL VOTING RIGHTS. On each matter submitted to a
vote of the holders of Series B Preferred Partnership Units in accordance with
this paragraph or paragraph 7.C, or as otherwise required by law, each Series B
Preferred Partnership Unit shall be entitled to one vote. With respect to each
Series B Preferred Partnership Unit, the holder thereof may designate a proxy,
with each such proxy having the right to vote on behalf of the holder.
Notwithstanding anything to the contrary in this Amendment, in no event shall
the General Partner or any of its Affiliates have any voting, consent or
approval rights in respect of any Series B Preferred Partnership Units it or
they may hold, and any percentage or portion of outstanding Series B Preferred
Partnership Units that may be required hereunder for any vote, consent or
approval of holders thereof shall be determined as if all Series B Preferred
Partnership Units then held by the General Partner or any of its Affiliates were
not outstanding.
Section 6. TRANSFER RESTRICTIONS.
The Series B Preferred Partnership Units shall not be subject to the
provisions of Sections 11.1 (B), 11.3(A), 11.3(B), 11.6(D) and 11.6(E) of the
Partnership Agreement. If such transfer would result in more than four (4)
partners holding all outstanding Series B Preferred Partnership Units within the
meaning of Treasury Regulation Section 1.7704- 1 (h), no transfer of the Series
B Preferred Partnership Units is permitted without the consent of the General
Partner, which consent may be given or withheld in its sole and absolute
discretion; provided, however, that the General Partner's consent may not be
unreasonably withheld if (a) such transfer would not result in more than ten
(10) partners holding all outstanding Series B Preferred Partnership Units
within the meaning of such Treasury Regulation Sections and (b) the General
Partner is relying on a provision other than Treasury Regulation Section
1.7704-1(h) to avoid classification of Operating Partnership as a PTP. In
addition, no transfer may be made to any person if such transfer would cause the
exchange of the Series B Preferred Partnership Units for Series B Preferred
Shares, as provided herein, to be required to be registered under the Securities
Act, or any state securities laws. Notwithstanding anything in Sections 11.4,
11.5 and 12.2 of the Partnership Agreement to the contrary, the admission of any
transferee of Series B Preferred Partnership Units as a Limited Partner shall be
in the General Partner's reasonable (not sole and absolute) discretion.
Section 7. EXCHANGE RIGHTS.
A. RIGHT TO EXCHANGE.
(i) The Series B Preferred Partnership Units will be exchangeable in whole
but not in part unless expressly otherwise provided herein, at anytime on or
after September 3, 2009 at the option of holders of more than 50% of all
outstanding Series B Preferred Partnership Units for authorized but previously
unissued Series B Preferred Shares at an exchange rate of one Series B Preferred
Share from the General Partner for one Series B Preferred Partnership Unit,
subject to adjustment as described below (the "SERIES B EXCHANGE PRICE"),
PROVIDED that the Series B Preferred Partnership Units will become exchangeable
at any time, in whole but not in part, unless expressly otherwise provided
herein, at the option of holders of more than 50% of all outstanding Series B
Preferred Partnership Units for Series B Preferred Shares, if:
(y) at any time full distributions shall not have been timely made on any
Series B Preferred Partnership Unit with respect to six (6) prior quarterly
distribution periods, whether or not consecutive, provided, however, that a
distribution in respect of Series B Preferred Partnership Units shall be
considered timely made if made within two (2) Business Days after the
Series B Preferred Partnership Unit Distribution Payment Date if at the
time of such late payment there shall not be any prior quarterly
distribution periods in respect of which full distributions were not timely
made, OR
(z) upon receipt by a holder or holders of Series B Preferred Partnership
Units of (1) notice from the General Partner that the General Partner or a
Subsidiary of the General Partner has become aware of facts that will or
likely will cause the Partnership to become a PTP and (2) an opinion
rendered by an outside nationally recognized independent counsel familiar
with such matters addressed to a holder or holders of Series B Preferred
Partnership Units, that the Partnership is or likely is, or upon the
occurrence of a defined event in the immediate future will be or likely
will be, a PTP.
In addition, the Series B Preferred Partnership Units may be exchanged for
Series B Preferred Shares, in whole but not in part unless expressly otherwise
provided herein, at the option of holders of more than 50% of all outstanding
Series B Preferred Partnership Units prior to September 3, 2009 and after
September 2, 2002 if such holders of Series B Preferred Partnership Units shall
deliver to the General Partner either (i) a private ruling letter addressed to
such holder of Series B Preferred Partnership Units or (ii) an opinion of
independent counsel reasonably acceptable to the General Partner based on the
enactment of temporary or final Treasury Regulations since the date of Closing
or the publication of a Revenue Ruling since the date of Closing, in either case
to the effect that an exchange of the Series B Preferred Partnership Units at
such earlier time would not cause the Series B Preferred Partnership Units to be
considered "stock and securities" within the meaning of Section 351(e) of the
Code for purposes of determining whether the holder of such Series B Preferred
Partnership Units is an "investment company" under Section 721(b) of the Code if
an exchange is permitted at such earlier date.
Furthermore, the Series B Preferred Partnership Units, if LLC so determines, may
be exchanged in whole but not in part (regardless of whether held by LLC) for
Series B Preferred Shares (but only if the exchange in whole may be accomplished
consistently with the ownership limitations set forth under the Series B
Articles Supplementary (as defined herein) (taking into account exceptions
thereto)), if (1) LLC concludes based on results or projected results that there
exists (in the reasonable judgment of LLC) an imminent and substantial risk that
the LLC's interest in the Partnership represents or will represent more than
18.0% of the total profits of or capital interests in the Partnership for a
taxable year, (2) LLC delivers to the General Partner an opinion of nationally
recognized independent counsel, reasonably acceptable to the General Partner to
the effect that there is a substantial risk that its interest in the Partnership
does not or will not satisfy the 18.0% limit and (3) the General Partner agrees
with the conclusions referred to in clauses (1) and (2) of this sentence, such
agreement not to be unreasonably withheld.
(ii) Notwithstanding anything to the contrary set forth in
Section 7.A(i), if a Series B Exchange Notice (as defined herein) has been
delivered to the General Partner, then the General Partner may, at its option,
within ten (10) Business Days after receipt of the Series B Exchange Notice,
elect to cause the Partnership to redeem all or a portion of the outstanding
Series B Preferred Partnership Units for cash in an amount equal to the
original Capital Contribution per Series B Preferred Partnership Unit and all
accrued and unpaid distributions thereon to the date of redemption. If the
General Partner elects to redeem fewer than all of the outstanding Series B
Preferred Partnership Units, the number of Series B Preferred Partnership Units
held by each holder to be redeemed shall equal such holder's pro rata share
(based on the percentage of the aggregate number of outstanding Series B
Preferred Partnership Units that the total number of Series B Preferred
Partnership Units held by such holder represents) of the aggregate number of
Series B Preferred Partnership Units being redeemed.
(iii) In the event an exchange of all Series B Preferred
Partnership Units pursuant to Section 7.A would violate the provisions on
ownership limitation of the General Partner set forth in Section 7 of Article
Third of the Articles Supplementary to the Charter with respect to Series B
Preferred Shares (the "SERIES B ARTICLES SUPPLEMENT "), each holder of Series B
Preferred Partnership Units shall be entitled to exchange, pursuant to the
provisions of Section 7.B below, a number of Series B Preferred Partnership
Units which would comply with the provisions on the ownership limitation of the
General Partner set forth in such Section 7 of Article Third of the Series B
Articles Supplementary, with respect to such holder, and any Series B Preferred
Partnership Units not so exchanged (THE "SERIES B EXCESS UNITS") shall be
redeemed by the Partnership for cash in an amount equal to the original Capital
Contribution per Series B Excess Unit, plus any accrued and unpaid distributions
thereon to the date of redemption subject to any restriction thereon contained
in any debt instrument or agreement of the Partnership.
In the event an exchange would result in Series B Excess Units, as a condition
to such exchange, each holder of such units agrees to provide such
representations and covenants reasonably requested by the General Partner
relating to (i) the widely held nature of the interests in such holder,
sufficient to assure the General Partner that the holder's ownership of stock of
the General Partner (without regard to the limits described above) will not
result in the Beneficial Ownership by any "individual" (as used for the purposes
of Section 542(a)(2) of the Code as modified by Section 856(h)(3) of the Code)
in excess of 7.0% of the value of the outstanding stock of the General Partner
to the extent the holder can reasonably make such representation; and (ii) the
holder's ownership of tenants of the Partnership and its affiliates.
To the extent the General Partner would not be able to pay the cash set forth
above in exchange for the Series B Excess Units, and to the extent consistent
with the Charter, the General Partner agrees that it will grant to the holders
of the Series B Preferred Partnership Units exceptions to the Ownership Limits
set forth in the Series B Articles Supplementary sufficient to allow such
holders to exchange all of their Series B Preferred Partnership Units for Series
B Preferred Shares, provided such holders furnish to the General Partner
representations acceptable to the General Partner in its sole and absolute
discretion which assure the General Partner that such exceptions will not
jeopardize the General Partner's tax status as a REIT for purposes of federal
and applicable state law.
Notwithstanding any provision of this Agreement to the contrary, no Series B
Limited Partner shall be entitled to effect an exchange of Series B Preferred
Partnership Units for Series B Preferred Shares to the extent that ownership or
right to acquire such shares would cause the Partner or any other Person or, in
the opinion of counsel selected by the General Partner, may cause the Partner or
any other Person, to violate the restrictions on ownership and transfer of
Series B Preferred Shares set forth in the Charter. To the extent any such
attempted exchange for Series B Preferred Shares would be in violation of the
previous sentence, it shall be void ab initio and such Series B Limited Partner
shall not acquire any rights or economic interest in the Series B Preferred
Shares otherwise issuable upon such exchange.
(iv) The redemption of Series B Preferred Partnership Units
described in Section 7.A(ii) and (iii) shall be subject to the provisions of
Section 4.B(i) and Section 4.C(ii).
B. PROCEDURE FOR EXCHANGE AND/OR REDEMPTION OF SERIES B PREFERRED PARTNERSHIP
UNITS.
(i) Any exchange shall be exercised pursuant to a notice of
exchange (the "SERIES B EXCHANGE NOTICE") delivered to the General Partner by
the holders of more than 50% of the outstanding Series B Preferred Partnership
Units by certified mail postage prepaid. The General Partner may effect any
exchange of Series B Preferred Partnership Units, or exercise its option to
redeem any portion of the Series B Preferred Partnership Units for cash pursuant
to Section 7.A(ii) or redeem Series B Excess Units pursuant to Section 7.A(iii),
by delivering to each holder of record of Series B Preferred Partnership Units,
within ten (10) Business Days following receipt of the Series B Exchange Notice,
(a) if the General Partner elects to exchange any of the
Series B Preferred Partnership Units then outstanding, (1) certificates
representing the Series B Preferred Shares being issued in exchange for the
Series B Preferred Partnership Units of such holder being exchanged and (2) a
written notice (a "SERIES B REDEMPTION NOTICE") stating (A) the redemption date,
which may be the date of such Redemption Notice, (B) the redemption price, (C)
the place or places where the Series B Preferred Partnership Units are to be
surrendered and (D) that distributions on the Series B Preferred Partnership
Units will cease to accrue on such redemption date, or
(b) if the General Partner elects to cause the Partnership
to redeem all of the Series B Preferred Partnership Units then outstanding in
exchange for cash, a Series B Redemption Notice. Series B Preferred Partnership
Units shall be deemed canceled (and any corresponding Partnership Interest
represented thereby deemed terminated) simultaneously with the delivery of
shares of Series B Preferred Shares (with respect to Series B Preferred
Partnership Units exchanged) or simultaneously with the redemption date (with
respect to Series B Preferred Partnership Units redeemed).
Holders of Series B Preferred Partnership Units shall deliver any canceled
certificates representing Series B Preferred Partnership Units which have been
exchanged or redeemed to the office of General Partner (which currently is
located at 103 Eisenhower Parkway, Roseland, NJ 07068) within ten (10) Business
Days after the exchange or redemption with respect thereto. Notwithstanding
anything to the contrary contained herein, any and all Series B Preferred
Partnership Units to be exchanged for REIT Series B Preferred Stock pursuant to
this Section 7 shall be so exchanged in a single transaction at one time. As a
condition to exchange, the General Partner may require the holders of Series B
Preferred Partnership Units to make such representations as may be reasonably
necessary for the General Partner to establish that the issuance of Series B
Preferred Shares pursuant to the exchange shall not be required to be registered
under the Securities Act or any state securities laws. Any Series B Preferred
Shares issued pursuant to this Section 7 shall be delivered as shares which are
duly authorized, validly issued, fully paid and nonassessable, free of any
pledge, lien, encumbrance or restriction other than those provided in the
Charter, the By-Laws of the General Partner, the Securities Act and relevant
state securities or blue sky laws.
The certificates representing the Series B Preferred Shares issued
upon exchange of the Series B Preferred Partnership Units shall contain the
following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT
(A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL
FOR THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER EVIDENCE
SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE
PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS
THEREUNDER.
(ii) In the event of an exchange of Series B Preferred
Partnership Units for Series B Preferred Shares, an amount equal to the accrued
and unpaid distributions to the date of exchange on any Series B Preferred
Partnership Units tendered for exchange shall (i) accrue on the Series B
Preferred Shares into which such Series B Preferred Partnership Units are
exchanged, and (ii) continue to accrue on such Series B Preferred Partnership
Units, which shall remain outstanding following such exchange, with the General
Partner as the holder of such Series B Preferred Partnership Units.
Notwithstanding anything to the contrary set forth herein, in no event shall a
holder of a Series B Preferred Partnership Unit that was validly exchanged for
Series B Preferred Shares pursuant to this section (other than the General
Partner now holding such Series B Preferred Partnership Unit), receive a
distribution out of Available Cash of the Partnership, if such holder, after
exchange, is entitled to receive a distribution out of Available Cash with
respect to the Series B Preferred Shares for which such Series B Preferred
Partnership Unit was exchanged or redeemed. Further, for purposes of the
foregoing, in the event of an exchange of Series B Preferred Partnership Units
for Series B Preferred Shares, if the accrued and unpaid distributions per
Series B Preferred Partnership Unit is not the same for all Series B Preferred
Partnership Units, the accrued and unpaid distributions per Series B Preferred
Partnership Unit for all Series B Preferred Partnership Units shall be equal to
the greatest amount of such accrued and unpaid distributions per Series B
Preferred Partnership Unit on any such unit.
(iii) Fractional Series B Preferred Shares are not to be issued
upon exchange but, in lieu thereof, the General Partner will pay a cash
adjustment based upon the fair market value of the Series B Preferred Shares on
the day prior to the exchange date as determined in good faith by the Board of
Directors of the General Partner.
C. ADJUSTMENT OF SERIES B EXCHANGE PRICE. In case the General Partner shall be a
party to any transaction (including, without limitation, a merger,
consolidation, statutory share exchange, tender offer for all or substantially
all of the General Partner's capital stock or sale of all or substantially all
of the General Partner's assets), in each case as a result of which the Series B
Preferred Shares will be converted into the right to receive shares of capital
stock, other securities or other property (including cash or any combination
thereof), each Series B Preferred Unit will thereafter be exchangeable into the
kind and amount of shares of capital stock and other securities and property
receivable (including cash or any combination thereof) upon the consummation of
such transaction by a holder of that number of Series B Preferred Shares or
fraction thereof into which one Series B Preferred Unit was exchangeable
immediately prior to such transaction. The General Partner may not become a
party to any such transaction, whether or not any Series B Preferred Shares are
then outstanding: (i) which does not preserve the existence of the Series B
Preferred Shares with their current rights, preferences and privileges, or (ii)
if the terms thereof are inconsistent with the foregoing. In addition, so long
as a Series B Limited Partner or any of its permitted successors or assigns,
hold any Series B Preferred Partnership Units, as the case may be, the General
Partner shall not, without the affirmative vote or consent of the holders of at
least two-thirds of the Series B Preferred Partnership Units outstanding at the
time: (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 the payment of distributions or rights upon liquidation,
dissolution or winding-up or reclassify any authorized shares of the General
Partner into any such shares, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such shares;
(b) designate or create, or increase the authorized or issued amount of, any
Parity Preferred Shares or reclassify any authorized shares of the General
Partner into any such shares, or create, authorize or issue any obligations or
security convertible into or evidencing the right to purchase any such shares,
but only to the extent that such Parity Preferred Shares are issued to an
Affiliate of the General Partner (other than in an Affiliate Parity Placement);
(c) amend, alter or repeal the provisions of the Charter or bylaws of the
General Partner, whether by merger, consolidation or otherwise, 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 any event
set forth in (c) above, so long as (1) the Partnership is the surviving entity
and the Series B Preferred Partnership Units remain outstanding with the terms
thereof unchanged, or (2) the resulting, surviving or transferee entity is a
partnership, limited liability company or other pass-through entity organized
under the laws of any state and substitutes, for the Series B Preferred
Partnership Units, other interests in such entity having substantially the same
terms and rights as the Series B Preferred Partnership Units, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series B Preferred Partnership Units; PROVIDED, FURTHER, that any
increase in the amount of authorized Preferred Shares or the creation or
issuance of any other series or class of Preferred Shares, or any increase in
the amount of authorized shares of each class or series, in each case ranking
either (3) junior to the Series B Preferred Shares with respect to the payment
of distributions and the distribution of assets upon liquidation, dissolution or
winding-up, or (4) on a parity with the Series B Preferred Shares with respect
to the payment of distributions and the distribution of assets upon liquidation,
dissolution or winding-up to the extent such Preferred Shares are not issued to
an Affiliate of the Company (other than in an Affiliate Parity Placement), shall
not be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding Series B Preferred Partnership Units shall
have been redeemed or called for redemption and sufficient funds shall have been
deposited in trust to effect such redemption.
Section 8. NO CONVERSION RIGHTS.
The holders of the Series B Preferred Partnership Units shall not have
any rights to convert such Partnership Units into any other class of Partnership
Interests or any interest in the Partnership.
Section 9. NO SINKING FUND.
No sinking fund shall be established for the retirement or redemption
of the Series B Preferred Partnership Units.
Section 10. REPORTS.
In addition to the reports required pursuant to Section 9.3 of the
Partnership Agreement, so long as any Series B Preferred Partnership Units are
outstanding, the General Partner shall cause to be mailed to each Series B
Limited Partner:
A. As soon as available, but in no event later than ten Business Days following
the date on which the General Partner files its annual report in respect of a
fiscal year on Form 10-K, with the Commission (or, in the event that the
Partnership is required under rules and regulations promulgated by the
Commission to file with the Commission a Form 1O-K separate from General
Partner's Form 1O-K, ten Business Days after the filing of such report by the
Partnership with the Commission), a complete copy of the Partnership's financial
statements for such fiscal year including a balance sheet, income statement and
cash flow statement for such fiscal year prepared in accordance with GAAP
(except with respect to footnotes); and
B. As soon as available, but in no event later than ten Business Days following
the date on which the General Partner files its quarterly report in respect of a
fiscal quarter on Form 1O-Q, with the Commission (or, in the event the
Partnership is required under rules and regulations promulgated by the
Commission to file with the Commission a Form 1O-Q separate from the General
Partner's Form 10-Q, ten Business Days after the filing of such report by the
Partnership with the Commission), a complete copy of the Partnership's unaudited
quarterly financial statements for such fiscal quarter including a balance
sheet, income statement and cash flow statement for such fiscal quarter prepared
in accordance with GAAP (except with respect to footnotes).
C. Not later than April 15 of each taxable year, a final Form K-1 for the prior
taxable year.
Section 11. DEFINITIONS.
"JUNIOR STOCK" means any class or series of capital stock of the
General Partner ranking junior as to the payment of distributions or rights upon
voluntary or involuntary liquidation, winding up or dissolution of the General
Partner to the REIT Series B Preferred Shares.
"JUNIOR UNITS" means any class or series of Partnership Interest of
the Partnership ranking junior as to the payment of distributions or rights upon
voluntary or involuntary liquidation, winding up or dissolution of the
Partnership to the Series B Preferred Partnership Units. Without limiting the
generality of the foregoing Junior Units shall include the Common Partnership
Units and the Special Units.
"LLC" means TMCT II, LLC, a Delaware limited liability company.
"PARITY PREFERRED STOCK" means any class or series of Preferred Shares
now or hereafter authorized, issued or outstanding expressly designated by the
General Partner to rank on a parity with Series B Preferred Shares with respect
to distributions or rights upon voluntary or involuntary liquidation, winding up
or dissolution of the General Partner in accordance with the Series B Articles
Supplementary, including the Series A Preferred Stock.
"PARITY PREFERRED PARTNERSHIP UNIT" means any class or series of
Partnership Interests of the Partnership now or hereafter authorized, issued or
outstanding expressly designated by the Partnership to rank on a parity with
Series B Preferred Partnership Units with respect to distributions or rights
upon voluntary or involuntary liquidation, winding up and dissolution of the
Partnership, including the Series A Preferred Partnership Units.
"PARTNERSHIP INTEREST" means an ownership interest in the Partnership
of either a Limited Partner or the General Partner and includes any and all
benefits to which the holder of such a Partnership Interest may be entitled as
provided in this Agreement, together with all obligations of such Person to
comply with the terms and provisions of this Agreement. There may be one or more
classes or series of Partnership Interests as provided in Section 4.5 of the
Partnership Agreement. A Partnership Interest may be expressed as a number of
Partnership Units. Unless otherwise expressly provided for by the General
Partner at the time of the original issuance of any Partnership Interests, all
Partnership Interests (whether of a Limited Partner or a General Partner) shall
be of the same class or series. The Partnership Interests represented by the
Common Units, the Special Units, the Series A Preferred Partnership Units and
the Series B Preferred Partnership Units are the only Partnership Interests
outstanding on the date hereof and are separate classes of Partnership Interest
for all purposes of this Agreement.
"PREFERRED LIMITED PARTNER" means any Person holding a Preferred
Partnership Unit, and named as a Preferred Limited Partner in Exhibit A attached
to the Partnership Agreement, as such Exhibit may be amended from time to time,
or any Substitute Limited Partner or Additional Limited Partner, in such
Person's capacity as a Preferred Limited Partner in the Partnership.
"PREFERRED SHARE" means a share of the General Partner's preferred
stock, par value $.01 per share, with such rights, priorities and preferences as
shall be designated by the Board of Directors in accordance with the Charter.
"REIT" means a real estate investment trust under Sections 856 through
860 of the Code.
"SERIES B LIMITED PARTNER" means any Person holding Series B Preferred
Partnership Units and named as a Series B Limited Partner in Exhibit A attached
to the Partnership Agreement, as such Exhibit may be amended from time to time,
or any Substitute Limited Partner, in such Person's capacity as a Series B
Limited Partner in the Partnership.
"SERIES B PREFERRED SHARE" means a share of 9.00% Series B Cumulative
Redeemable Preferred Stock, par value $.01 per share, liquidation preference
$50.00 per share, of the General Partner.
"SERIES B PREFERRED PARTNERSHIP UNITS" means the Partnership's 9.00%
Series B Cumulative Redeemable Preferred Partnership Units, with the rights,
priorities and preferences set forth herein.