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EXHIBIT 4.1
FORM OF
STATEMENT OF DESIGNATION
OF
SERIES B 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 8.5% Series B Cumulative
Redeemable Perpetual Preferred Shares of Beneficial Interest of the Company (the
"STATEMENT") prior to the issuance of any shares of 8.5% Series B 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 8.5% Series B 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 February 23, 1999.
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ARTICLE FIVE
The Designating Resolution was duly adopted by all necessary action on the
part of the Company.
IN WITNESS WHEREOF, the undersigned officer has executed this Statement
effective as of February 23, 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
FEBRUARY 23, 1999
AUTHORIZATION OF SERIES A 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 a 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 "8.5% Series B Cumulative Redeemable
Perpetual Preferred Shares of Beneficial Interest" (the "SERIES B PREFERRED
SHARES") is hereby established. The number of shares of Beneficial Interest of
Series B Preferred Shares shall be 4,000,000.
SECTION 2. RANK. The Series B Preferred Shares will, with respect to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Company, 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")) or senior to the Series B Preferred Shares as to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Company. For purposes of 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
B Preferred Shares with respect to distributions and rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Company including,
without limitation, the Series A Preferred Shares. The term "EQUITY SECURITIES"
does not include convertible debt securities (or other evidences of
indebtedness), which will rank senior to the Series B Preferred Shares;
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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 B Preferred Shares, holders of Series B 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 8.50% of the $25.00 liquidation preference per Series B 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 March 31, 1999 and, (ii) in the event of a
redemption, on the redemption date (each a "PREFERRED SHARES DISTRIBUTION
PAYMENT DATE"). The amount of the distribution payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months and for any
period shorter than a full quarterly period for which distributions are
computed, the amount of the distribution payable will be computed 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 B Preferred Shares is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series B Preferred Shares
will be made to the holders of record of the Series B Preferred Shares on the
relevant record dates 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 B Preferred Shares shall also continue to accrue all accrued and unpaid
distributions, whether or not declared, up to the exchange date on any Series B
Preferred Unit (as defined in the Third Amended and Restated Agreement of
Limited Partnership of Camden Operating, L.P. (the "PARTNERSHIP AGREEMENT"), as
amended through the date hereof) validly exchanged into such share of Series B
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.
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(b) DISTRIBUTIONS CUMULATIVE. Distributions on the Series B 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 B 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 B 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 B 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 B 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 B Preferred Shares, any Parity Preferred Shares or
any Junior Shares, unless, in each case, all distributions accumulated on all
Series B Preferred Shares and all classes and series of outstanding Parity
Preferred Shares have been paid in full. The foregoing sentence will not
prohibit (i) distributions payable solely in Junior Shares, (ii) the conversion
of Series B Preferred Shares, Junior Shares or Parity Preferred Shares into
shares of the Company ranking junior to the Series B Preferred Shares as to
distributions, and (iii) purchase by the Company of such Series B 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 B Preferred Shares, all distributions authorized and
declared on the Series B Preferred Shares and all classes or series of
outstanding Parity Preferred Shares with respect to distributions shall be
authorized and declared so that the amount of distributions authorized and
declared per Series B 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 B 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.
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(e) NO FURTHER RIGHTS. Holders of Series B Preferred Shares shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
SECTION 4. LIQUIDATION PREFERENCE. (a) PAYMENT OF LIQUIDATING
DISTRIBUTIONS,. Subject to the rights of holders of Parity Preferred Shares with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and subject to equity securities ranking senior to the
Series B Preferred Shares with respect to rights upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Company, the holders
of Series B Preferred Shares shall be entitled to receive out of the assets of
the Company legally available for distribution or the proceeds thereof, after
payment or provision for debts and other liabilities of the Company, but before
any payment or distributions of the assets shall be made to holders of Common
Shares or any other class or series of shares of the Company that ranks junior
to the Series B Preferred Shares as to rights upon liquidation, dissolution or
winding-up of the Company, an amount equal to the sum of (i) a liquidation
preference of $25 per Series B Preferred Share, and (ii) an amount equal to any
accumulated and unpaid distributions thereon, whether or not declared, to the
date of payment. In the event that, upon such voluntary or involuntary
liquidation, dissolution or winding-up, there are insufficient assets to permit
full payment of liquidating distributions to the holders of Series B Preferred
Shares and any Parity Preferred Shares as to rights upon liquidation,
dissolution or winding-up of the Company, all payments of liquidating
distributions on the Series B Preferred Shares and such Parity Preferred Shares
shall be made so that the payments on the Series B Preferred Shares and such
Parity Preferred Shares shall in all cases bear to each other the same ratio
that the respective rights of the Series B Preferred Shares and such other
Parity Preferred Shares (which shall not include any accumulation in respect of
unpaid distributions for prior distribution periods if such Parity Preferred
Shares do not have cumulative distribution rights) upon liquidation, dissolution
or winding-up of the Company bear to each other.
(b) NOTICE. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Company, stating the payment date
or dates when, and the place or places where, the amounts distributable in such
circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than thirty (30) and not more than sixty
(60) days prior to the payment date stated therein, to each record holder of the
Series B Preferred Shares at the respective addresses of such holders as the
same shall appear on the share transfer records of the Company.
(c) NO FURTHER RIGHTS. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series B Preferred
Shares will have no right or claim to any of the remaining assets of the
Company.
(d) CONSOLIDATION, MERGER OR CERTAIN OTHER TRANSACTIONS. The voluntary
sale, conveyance, lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the property
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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 B Preferred Shares may not, subject to SECTION 7 hereof, be redeemed
prior to February 23, 2004. On or after such date, the Company shall have the
right to redeem the Series B Preferred Shares, in whole or in part, at any time
or from time to time, upon not less than 30 nor more than 60 days' written
notice, at a redemption price, payable in cash, equal to $25 per Series B
Preferred Share plus accumulated and unpaid distributions, whether or nor
declared, to the date of redemption. If fewer than all of the outstanding shares
of Series B Preferred Shares are to be redeemed, the Series B Preferred Shares
to be redeemed shall be selected pro rata (as nearly as practicable without
creating fractional units).
(b) LIMITATION ON REDEMPTION. Subject to SECTION 7 hereof, the Company may
not redeem fewer than all of the outstanding Series B Preferred Shares unless
all accumulated and unpaid distributions have been paid on all outstanding
Series B 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 B Preferred Shares to be redeemed at
their respective addresses as they appear on the transfer records of the
Company. No failure to give or defect in such notice shall affect the validity
of the proceedings for the redemption of any Series B Preferred Shares except as
to the holder to whom such notice was defective or not given. In addition to any
information required by law or by the applicable rules of any exchange upon
which the Series B Preferred Shares may be listed or admitted to trading, each
such notice shall state: (i) the redemption date, (ii) the redemption price,
(iii) the number of shares of Series B Preferred Shares to be redeemed, (iv) the
place or places where such shares of Series B Preferred Shares are to be
surrendered for payment of the redemption price, (v) that distributions on the
Series B Preferred Shares to be redeemed will cease to accumulate on such
redemption date and (vi) that payment of the redemption price and any
accumulated and unpaid distributions will be made upon presentation and
surrender of such Series B Preferred Shares. If fewer than all of the shares of
Series B 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 B
Preferred Shares held by such holder to be redeemed.
(ii) If the Company gives a notice of redemption in respect of Series B
Preferred Shares (which notice will be irrevocable) then, by 12:00 noon, Houston
time, on the redemption date, the Company will deposit irrevocably in trust for
the benefit of the Series B Preferred Shares being redeemed funds sufficient to
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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 B Preferred
Shares upon surrender of the certificate evidencing the Series B Preferred
Shares by such holders at the place designated in the notice of redemption. If
fewer than all Series B Preferred Shares evidenced by any certificate is being
redeemed, a new certificate shall be issued upon surrender of the certificate
evidencing all Series B Preferred Shares, evidencing the unredeemed Series B
Preferred Shares without cost to the holder thereof. On and after the date of
redemption, distributions will cease to accumulate on the Series B Preferred
Shares or portions thereof called for redemption, unless the Company defaults in
the payment thereof. If any date fixed for redemption of Series B Preferred
Shares is not a Business Day, then payment of the redemption price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day falls in the next calendar year, such payment will be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If payment of the
redemption price or any accumulated or unpaid distributions in respect of the
Series B Preferred Shares i s improperly withheld or refused and not paid by the
Company, distributions on such Series B Preferred Shares will continue to
accumulate from the original redemption date to the date of payment, in which
case the actual payment date will be considered the date fixed for redemption
for purposes of calculating the applicable redemption price and any accumulated
and unpaid distributions.
(d) STATUS OF REDEEMED SHARES. Any Series B Preferred Shares that shall at
any time have been redeemed shall after such redemption, have the status of
authorized but unissued Preferred Shares, without designation as to class or
series until such shares are once more designated as part of a particular class
or series by the Board of Trust Managers.
SECTION 6. VOTING RIGHTS. (a) GENERAL. Holders of the Series B Preferred
Shares will not have any voting rights, except as set forth below.
(b) RIGHT TO ELECT 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 B Preferred Units prior to the
exchange into Series B 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 B Preferred
Shares, voting together as a single class with the holders of each class or
series of Parity Preferred Shares upon which like voting rights have been
conferred and are exercisable, will 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
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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 B 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 B 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 B Preferred Shares and all
the series of Parity Preferred Shares upon which like voting rights have been
conferred and are exercisable (collectively, the "PARITY SECURITIES"); 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 B 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
B Preferred Shares shall be entitled to vote will be given to such holders at
their addresses as they appear in the transfer records. At any such meeting or
adjournment thereof in the absence of a quorum, subject to the provisions of any
applicable law, a majority of the holders of the Parity Securities present in
person or by proxy shall have the power to adjourn the meeting for the election
of the Preferred Shares 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 B Preferred Shares that would have
been entitled to vote at such special meeting.
(iii) If and when all accumulated distributions and the distribution for
the current distribution period on the Series B Preferred Shares shall have been
paid in full or a sum sufficient for such payment is irrevocably deposited in
trust for payment, the holders of the Series B Preferred Shares shall be
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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 B Preferred Shares when they have the voting rights set
forth in SECTION 6(B) (voting separately as a single class with all other
classes or series of Parity Preferred Shares upon which like voting rights have
been conferred and are exercisable). 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 B Preferred Shares when they have the voting
rights set forth in SECTION 6(B) (voting separately as a single class with all
other classes or series of Parity Preferred Shares upon which like voting rights
have been conferred and are exercisable). The Preferred Shares 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 B Preferred Shares
remains outstanding, the Company shall not, without the affirmative vote of the
holders of at least two-thirds of the Series B Preferred Shares outstanding at
the time: (i) designate or create, or increase the authorized or issued amount
of, any class or series of shares ranking prior to the Series B 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 B 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 B 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 B Preferred Shares for other preferred shares
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having substantially the same terms and same rights as the Series B Preferred
Shares, including with respect to distributions, voting rights and rights upon
liquidation, dissolution or winding-up, then the consent of the holders of the
Series B 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 B
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 B
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 B 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 B 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.
SECTION 8. NO SINKING FUND. No sinking fund shall be established for the
retirement or redemption of Series B Preferred Shares.
SECTION 9. NO PREEMPTIVE RIGHTS. No holder of the Series B Preferred Shares
of the Company shall, as such holder, have any preemptive rights to purchase or
subscribe for additional shares of the Company or any other security of the
Company which it may issue or sell.
SECTION 10. DECLARATION OF TRUST - ARTICLE THIRTEEN. The Series B Preferred
Shares are deemed t o 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 B 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.
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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 A 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.