23
EXHIBIT 4.11
FORM OF
STATEMENT OF DESIGNATION
OF
SERIES C CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARES
OF
BENEFICIAL INTEREST
OF
CAMDEN PROPERTY TRUST
ARTICLE ONE
CAMDEN PROPERTY TRUST (the "COMPANY"), pursuant to the provisions of
Section 3.30 of the Texas Real Estate Investment Trust Act (the "TREITA"),
hereby files this Statement of Designation of 8.25% Series C Cumulative
Redeemable Perpetual Preferred Shares of Beneficial Interest of the Company (the
"STATEMENT") prior to the issuance of any shares of 8.25% Series C Cumulative
Redeemable Perpetual Preferred Shares of Beneficial Interest, such series of
unissued shares having been established by a resolution duly adopted by all
necessary action on the part of the Company and the Board of Trust Managers, as
provided for in the Amended and Restated Declaration of Trust (the "DECLARATION
OF TRUST").
ARTICLE TWO
The name of the Company is Camden Property Trust.
ARTICLE THREE
Pursuant to the authority conferred upon the Board of Trust Managers by the
Declaration of Trust and Section 3.30 of the TREITA, the Board of Trust
Managers, pursuant to Section 10.20 of the TREITA, adopted a resolution
establishing the 8.25% Series C Cumulative Redeemable Perpetual Preferred Shares
of Beneficial Interest of the Company and designating the series and fixing and
determining the preferences, limitations, and relative rights thereof, as set
forth in the true and correct copy of the resolution attached hereto as EXHIBIT
A (the "DESIGNATING RESOLUTION").
ARTICLE FOUR
The Designating Resolution was adopted effective as of August 13, 1999.
ARTICLE FIVE
The Designating Resolution was duly adopted by all necessary action on the
part of the Company.
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IN WITNESS WHEREOF, the undersigned officer has executed this Statement
effective as of August 13, 1999.
CAMDEN PROPERTY TRUST
By:__________________________________
Name:
Title:
Notary Public, State of Texas
Printed Name of Notary
My Commission Expires:
_____________________________________
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EXHIBIT A
DESIGNATING RESOLUTION
BOARD OF TRUST MANAGERS
CAMDEN PROPERTY TRUST
AUGUST 13, 1999
AUTHORIZATION OF SERIES C CUMULATIVE CONVERTIBLE PREFERRED SHARES OF BENEFICIAL
INTEREST
WHEREAS, the Board of Trust Managers of Camden Property Trust (the
"COMPANY") has deemed it to be in the best interest of the Company and its
shareholders for the Company to establish an additional series of preferred
shares pursuant to the authority granted to the Board of Trust Managers in the
Amended and Restated Declaration of Trust (the "DECLARATION OF TRUST") of the
Company:
NOW, THEREFORE, BE IT RESOLVED, that, pursuant to the authority vested in
the Board of Trust Managers by the Declaration of Trust, a series of preferred
shares is hereby established, and the terms of the same shall be as follows:
SECTION 1. DESIGNATION AND NUMBER. A series of Preferred Shares of
Beneficial Interest, designated the "8.25% Series C Cumulative Redeemable
Perpetual Preferred Shares of Beneficial Interest" (the "SERIES C PREFERRED
SHARES") is hereby established. The number of shares of Beneficial Interest
of Series C Preferred Shares shall be 520,000.
SECTION 2. RANK. The Series C Preferred Shares will, with respect to
distributions and rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Company, or both, rank senior to all
classes or series of Common Shares (as defined in the Declaration of Trust)
and to all classes or series of equity securities of the Company now or
hereafter authorized, issued or outstanding, other than any class or series
of equity securities of the Company expressly designated as ranking on a
parity with (including, without limitation, the Series A Cumulative
Convertible Preferred Shares of Beneficial Interest of the Company provided
for in the Company's Statement of Designation filed with the County Clerk
of Harris County, Texas, on April 8, 1998 (the "SERIES A PREFERRED SHARES")
and the Series B Cumulative Convertible Preferred Shares of Beneficial
Interest of the Company provided for in the Company's Statement of
Designation filed with the County Clerk of Harris County, Texas, on
February 24, 1999 (the "SERIES B PREFERRED SHARES")) or senior to the
Series C Preferred Shares as to distributions and rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Company. For
purposes of this Designating Resolution, 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 C Preferred
Shares with respect to distributions and rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Company
including, without limitation, the Series A Preferred Shares and Series B
Preferred Shares. The term "EQUITY SECURITIES" does not include convertible
debt securities (or other evidences of indebtedness), which will rank
senior to the Series C Preferred Shares; provided, however, the term
"EQUITY SECURITIES" shall include any equity securities issued upon the
conversion of convertible debt securities into equity when issued.
SECTION 3. DISTRIBUTIONS.
(a) PAYMENT OF DISTRIBUTIONS. Subject to the rights
of holders of Parity Preferred Shares and holders of equity
securities ranking senior to the Series C Preferred Shares,
holders of Series C Preferred Shares shall be entitled to
receive, when, as and if declared by the Board of Trust
Managers of the Company, out of funds legally available for
the payment of distributions, cumulative preferential cash
distributions at the rate per annum of 8.25% of the $25.00
liquidation preference per Series C Preferred Share. Such
distributions shall be cumulative, shall accrue from the
original date of issuance and will be payable (i) quarterly
(such quarterly periods for purposes of payment and accrual
will be the quarterly periods ending on the dates specified in
this sentence and not calendar year quarters) in arrears, not
later than the third calendar day after March 31, June 30,
September 30 and December 31 of each year commencing on
September 30, 1999 and, (ii) in the event of a redemption, on
26
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 on the
basis of the actual number of days elapsed in such period. If
any date on which distributions are to be made on the Series C
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 C Preferred Shares will be made to the holders of
record of the Series C Preferred Shares on the relevant record
dates to be fixed by the Board of Trust Managers of the
Company, which record dates shall in no event exceed 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 share of Series C Preferred Shares shall also continue to
accrue all accrued and unpaid distributions, whether or not
declared, up to the exchange date on any Series C Preferred
Unit (as defined in the Third Amended and Restated Agreement
of Limited Partnership of Camden Operating, L.P. (as amended,
the "PARTNERSHIP AGREEMENT"), as amended through the date
hereof) validly exchanged into such share of Series C
Preferred Shares in accordance with the provisions of such
Partnership Agreement.
The term "BUSINESS DAY" shall mean each day, other
than a Saturday or a Sunday, which is not a day on which
banking institutions in Texas are authorized or required by
law, regulation or executive order to close.
(b) DISTRIBUTIONS CUMULATIVE. Distributions on the
Series C Preferred Shares will accrue whether or not the terms
and provisions of any agreement of the Company, including any
agreement relating to its indebtedness 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 distributions and whether or
not such distributions are authorized or declared. Accrued but
unpaid distributions on the Series C Preferred Shares will
accumulate as of the Preferred Shares Distribution Payment
Date on which they first become payable. Distributions on
account of arrears for any past distribution periods may be
declared and paid at any time, without reference to a regular
Preferred Shares Distribution Payment Date to holders of
record of the Series C Preferred Shares on the record date
fixed by the Board of Trust Managers which date shall not
exceed fifteen (15) Business Days prior to the payment date.
Accumulated and unpaid distributions will not bear interest.
(c) PRIORITY AS TO DISTRIBUTIONS.
(i) So long as any Series C Preferred Shares
is 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 or rights upon voluntary or
involuntary dissolution, liquidation or winding up of
the Partnership to the Series C Preferred Shares
(such Common Shares or other junior shares,
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 C Preferred Shares, any
Parity Preferred Shares or any Junior Shares, unless,
27
in each case, all distributions accumulated on all
Series C Preferred Shares and all classes and series
of outstanding Parity Preferred Shares have been paid
in full. The foregoing sentence will not prohibit (i)
distributions payable solely in Junior Shares, (ii)
the conversion of Series C Preferred Shares, Junior
Shares or Parity Preferred Shares into shares of the
Company ranking junior to the Series C Preferred
Shares as to distributions, and (iii) purchase by the
Company of such Series C Preferred Shares, Parity
Preferred Shares or Junior Shares pursuant to Article
Nineteen of the Declaration of Trust to the extent
required to preserve the Company's status as a real
estate investment trust.
(ii) So long as distributions have not been
paid in full (or a sum sufficient for such full
payment is not irrevocably deposited in trust for
payment) upon the Series C Preferred Shares, all
distributions authorized and declared on the Series C
Preferred Shares and all classes or series of
outstanding Parity Preferred Shares with respect to
distributions shall be authorized and declared so
that the amount of distributions authorized and
declared per Series C Preferred Share 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 Series C Preferred Share
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.
(e) NO FURTHER RIGHTS. Holders of Series C Preferred
Shares shall not be entitled to any distributions, whether
payable in cash, other property or otherwise, in excees 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 C Preferred Shares
with respect to rights upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Company, the
holders of Series C 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 C
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 Series C Preferred Share,
28
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 C Preferred Shares and any Parity
Preferred Shares as to rights upon liquidation, dissolution or
winding-up of the Company, all payments of liquidating
distributions on the Series C Preferred Shares and such Parity
Preferred Shares shall be made so that the payments on the
Series C 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 C 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
thirty (30) and not more than sixty (60) days prior to the
payment date stated therein, to each record holder of the
Series C 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 C 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
Company, trust or other entity (or of any Company, trust or
other entity with or into the Company) or a statutory share
exchange 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 C
Preferred Shares may not, subject to SECTION 7 hereof, be
redeemed prior to August 13, 2004. On or after such date, the
Company shall have the right to redeem the Series C 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 C
Preferred Share plus accumulated and unpaid distributions,
whether or nor declared, to the date of redemption. If fewer
than all of the outstanding shares of Series C Preferred
Shares are to be redeemed, the Series C Preferred Shares to be
redeemed shall be selected pro rata (as nearly as practicable
without creating fractional units).
29
(b) LIMITATION ON REDEMPTION. Subject to SECTION 7
hereof, the Company may not redeem fewer than all of the
outstanding Series C Preferred Shares unless all accumulated
and unpaid distributions have been paid on all outstanding
Series C Preferred Shares for all quarterly distribution
periods terminating on or prior to the date of redemption.
(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 C
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 C 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 C
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 shares of Series C Preferred Shares to be
redeemed, (iv) the place or places where such shares
of Series C Preferred Shares are to be surrendered
for payment of the redemption price, (v) that
distributions on the Series C 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 C
Preferred Shares. If fewer than all of the shares of
Series C Preferred Shares held by any holder are to
be redeemed, the notice mailed to such holder shall
also specify the number of shares of Series C
Preferred Shares held by such holder to be redeemed.
(ii) If the Company gives a notice of
redemption in respect of Series C Preferred Shares
(which notice will be irrevocable) then, by 12:00
noon, Houston time, on the redemption date, the
Company will deposit irrevocably in trust for the
benefit of the Series C Preferred Shares being
redeemed funds sufficient to pay the applicable
redemption price, plus any accumulated and unpaid
distributions, whether or not declared, 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, if any, on such
shares to the holders of the Series C Preferred
Shares upon surrender of the certificate evidencing
the Series C Preferred Shares by such holders at the
30
place designated in the notice of redemption. If
fewer than all Series C Preferred Shares evidenced by
any certificate is being redeemed, a new certificate
shall be issued upon surrender of the certificate
evidencing all Series C Preferred Shares, evidencing
the unredeemed Series C Preferred Shares without cost
to the holder thereof. On and after the date of
redemption, distributions will cease to accumulate on
the Series C Preferred Shares or portions thereof
called for redemption, unless the Company defaults in
the payment thereof. If any date fixed for redemption
of Series C 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 C Preferred Shares is improperly withheld or
refused and not paid by the Company, distributions on
such Series C 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) STATUS OF REDEEMED SHARES. Any Series C 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 of Trust Managers.
SECTION 6. VOTING RIGHTS.
(a) GENERAL. Holders of the Series C Preferred Shares
will not have any voting rights, except as set forth below.
(b) RIGHT TO ELECT TRUST MANAGERS.
(i) If at any time distributions shall be in
arrears with respect to six (6) prior quarterly
distribution periods (including quarterly periods on
the Series C Preferred Units prior to the exchange
into Series C Preferred Shares), whether or not
consecutive, and shall not have been paid in full (a
"PREFERRED DISTRIBUTION Default"), the authorized
number of members of the Board of Trust Managers
shall automatically be increased by two (2) and the
holders of record of such Series C Preferred Shares,
31
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 be entitled to fill the vacancies
so created by electing two additional directors to
serve on the Company's Board of Trust Managers (the
"PREFERRED SHARES TRUST MANAGERS") at a special
meeting called in accordance with SECTION 6(B)(II) 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 C Preferred
Shares and each such class or series of Parity
Preferred Shares have been paid in full.
(ii) At any time when such voting rights shall
have vested, a proper officer of the Company may,
and upon written request of holders of record of at
least ten percent (10%) of the outstanding Series
C Preferred Shares (addressed to the Secretary at the
principal office of the Company) shall call or cause
to be called a special meeting of the holders of
Series C 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"); such call to
be made by special notice similar to that provided in
the By-laws of the Company for a special meeting of
the shareholders or as required by law. If any such
special meeting required to be called as above
provided shall not be called within twenty (20) days
after receipt of any such request, then any holder of
the Series C Preferred Shares may call such meeting
upon the notice above provided, and for that purpose
shall have access to the shareholder records of the
Company. 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 a vote of at least the minimum portion of Parity
Securities permitted under TREITA, 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 Trust Managers except as otherwise provided by
law. Notice of all meetings at which holders of the
Series C 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
32
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 Trust Managers, 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 C 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 C 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 C 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 Trust Manager so elected shall terminate. Any
Preferred Shares Trust Manager 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 C 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). So long
as a Preferred Distribution Default shall continue,
any vacancy in the office of a Preferred Shares Trust
Manager may be filled by written consent of the
Preferred Shares Trust Manager remaining in office,
or if none remains in office, by a vote of the
holders of record of a majority of the outstanding
Series C 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 Trust Manager shall each be entitled
to one vote per director on any matter.
(c) CERTAIN VOTING RIGHTS. Notwithstanding anything
to the contrary contained in the Declaration of Trust, so long
as any Series C Preferred Shares remains outstanding, the
Company shall not, without the affirmative vote of the holders
of at least two-thirds of the Series C Preferred Shares
33
outstanding at the time: (i) designate or create, or increase
the authorized or issued amount of, any class or series of
shares ranking prior to the Series C Preferred Shares with
respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any
authorized shares of the Company into any such shares, or
create, authorize or issue any obligations or security
convertible into or evidencing the right to purchase any such
shares, (ii) designate or create, or increase the authorized
or issued amount of, any Parity Preferred Shares or reclassify
any authorized shares of the Company 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 such Parity Preferred Shares is
issued to an affiliate of the Company, or (iii) either (A)
consolidate, merge into or with, or convey, transfer or lease
its assets substantially as an entirety, to any company or
other entity, or (B) amend, alter or repeal the provisions of
the Company's Declaration of Trust (including this Designating
Resolution) or By-laws, whether by merger, consolidation or
otherwise, in each case that would materially and adversely
affect the powers, special rights, preferences, privileges or
voting power of the Series C Preferred Shares or the holders
thereof; PROVIDED, HOWEVER, that with respect to the
occurrence of a merger, consolidation or a sale or lease of
all of the Company's assets as an entirety, so long as (a) the
Company is the surviving entity and the Series C Preferred
Shares remains outstanding with the terms thereof unchanged,
or (b) the resulting, surviving or transferee entity is a
corporation or real estate investment trust organized under
the laws of any state and substitutes the Series C Preferred
Shares for other preferred shares having substantially the
same terms and same rights as the Series C Preferred Shares,
including with respect to distributions, voting rights and
rights upon liquidation, dissolution or winding-up, then the
consent of the holders of the Series C Preferred Shares shall
not be required with respect thereto and 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 C Preferred Shares and 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, in each case ranking either (a) junior
to the Series C Preferred Shares 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
C Preferred Shares with respect to payment of distributions or
the distribution of assets upon liquidation, dissolution or
winding-up to the extent such Preferred Shares is not issued
to an affiliate of the Company, shall not be deemed to
materially and adversely affect such rights, preferences,
privileges or voting powers.
SECTION 7. NO CONVERSION RIGHTS. The holders of the Series C
Preferred Shares shall not have any rights to convert such shares into
shares of any other class or series of stock or into any other
securities of, or interest in, the Company.
34
SECTION 8. NO SINKING FUND. No sinking fund shall be
established for the retirement or redemption of Series C Preferred
Shares.
SECTION 9. NO PREEMPTIVE RIGHTS. No holder of the Series C
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.
SECTION 10. DECLARATION OF TRUST - ARTICLE THIRTEEN. The
Series C Preferred Shares are deemed to be "Shares" for purposes of
Article Thirteen of the Declaration of Trust; PROVIDED, HOWEVER, that
in no event shall the provisions contained in such Article Thirteen
(including, without limitation, subparagraph (d) thereof) limit any
obligations of the Company or rights of the holders of Series C
Preferred Shares pursuant to this Designating Resolution.
RATIFICATION AND AUTHORIZATION
RESOLVED, that any and all acts and deeds of any officer or Trust Manager
of the company taken prior to the date hereof on behalf of the Company with
regard to the foregoing resolutions are hereby approved, ratified and confirmed
in all respects as and for the acts and deeds of the Company.
FURTHER RESOLVED, that the officers of the Company be, and each of them
hereby is, severally and without the necessity for joinder of any other person,
authorized, empowered and directed to execute and deliver any and all such
further documents and instruments and to do and perform any and all such further
acts and deeds that may be necessary or advisable to effectuate and carry out
the purposes and intents of the foregoing resolutions, including, but not
limited to, the filing of a statement with the County Clerk of Harris County,
Texas, setting forth the designations, preferences, limitations and rights of
Series C Preferred Shares pursuant to Section 3.30 of TREITA, all such actions
to be performed in such manner, and all such documents and instruments to be
executed and delivered in such form, as the officer performing or executing the
same shall approve, the performance or execution thereof by such officer to be
conclusive evidence of the approval thereof by such officer and by the Board of
Trust Managers.