EXHIBIT 10.51
AMENDMENT NO. 42 TO THE SECOND
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF HOME PROPERTIES OF NEW YORK, L.P.
This AMENDMENT No. 42 TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF HOME PROPERTIES OF NEW YORK, L.P., dated as of
December 22, 2000 (this "Amendment"), is being executed by Home Properties
of New York, Inc., a Maryland corporation (the "General Partner"), as the
general partner of Home Properties of New York, L.P., a New York limited
partnership (the "Partnership"), pursuant to the authority conferred on the
General Partner by Section 9.10(b)(iii) of the Second Amended and Restated
Agreement of Limited Partnership of Home Properties of New York, L.P.,
dated as of September 23, 1997, as amended (the "Agreement"). Capitalized
terms used, but not otherwise defined herein, shall have the respective
meanings ascribed thereto in the Agreement.
WHEREAS, on December 22, 2000, the General Partner filed Articles
Supplementary amending its Charter to designate and classify 300,000 shares
of authorized but unissued shares of its preferred stock, par value $.01
per share, as shares of its Series E Convertible Cumulative Preferred
Stock, par value $.01 per share (the "Series E Preferred Stock");
WHEREAS, in accordance with Section 3.04 of the Agreement, upon the
issuance of any such shares of Series E Preferred Stock, the General
Partner will contribute the net cash proceeds from such issuance to the QRS
(as defined in the Agreement), which will contribute such net cash proceeds
to the Partnership in exchange for a number of Partnership Preferred Units
equal to the number of shares of Series E Preferred Stock so issued, which
Partnership Preferred Units shall have designations, preferences and other
rights, terms and provisions that are substantially the same as the
designations, preferences and other rights, terms and provisions of the
Series E Preferred Stock, except as otherwise set forth herein; and
WHEREAS, pursuant to Section 3.03(a) of the Agreement, the General
Partner is authorized to determine the relative rights and powers of such
Partnership Preferred Units in its sole discretion.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged:
1. The Agreement is hereby amended by the addition of a new exhibit,
entitled "Exhibit G", in the form attached hereto, which shall be attached
to and made a part of the Agreement.
2. Except as specifically amended hereby, the terms, covenants,
provisions and conditions of the Agreement shall remain unmodified and
continue in full force and effect and, except as amended hereby, all of the
terms, covenants, provisions and conditions of the Agreement are hereby
ratified and confirmed in all respects.
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
GENERAL PARTNER:
HOME PROPERTIES OF NEW YORK, INC.
By: /s/ David P. Gardner
---------------------------------
Name: David P. Gardner
Title: Senior Vice President
EXHIBIT G
PARTNERSHIP UNIT DESIGNATION OF THE SERIES E PARTNERSHIP PREFERRED UNITS OF
HOME PROPERTIES OF NEW YORK, L.P.
1. Number of Units and Designation.
A class of Partnership Preferred Units is hereby designated as "Series E
Partnership Preferred Units," and the number of Partnership Preferred Units
constituting such series shall be 300,000.
2. Definitions.
For purposes of the Series E Partnership Preferred Units, the following terms
shall have the meanings indicated in this Section 2, and capitalized terms
used and not otherwise defined herein shall have the meanings assigned thereto
in the Agreement:
"Agreement" shall mean the Second Amended and Restated Agreement of Limited
Partnership of the Partnership, dated as of September 23, 1997, as amended.
"Call Date" shall have the meaning set forth in paragraph (a) of Section 5
of this Exhibit G.
"Common Stock" shall mean the Common Stock, $0.01 par value per share, of
the General Partner or such shares of the General Partner's capital stock
into which outstanding shares of Common Stock shall be reclassified.
"Distribution Payment Date" shall mean any date on which cash dividends are
paid on all outstanding shares of the Series E Preferred Stock.
"Junior Partnership Units" shall have the meaning set forth in paragraph (c)
of Section 9 of this Exhibit G.
"Parity Partnership Units" shall have the meaning set forth in paragraph (b)
of Section 9 of this Exhibit G.
"Partnership" shall mean Home Properties of New York, L.P., a New York limited
partnership.
"Partnership Common Units" shall mean a fractional, undivided share of the
Partnership Interests of all Partners issued pursuant to Section 3.01 and 3.02
of the Agreement.
"Repurchase Date " shall have the meaning set forth in paragraph (a) of Section
6 of this Exhibit G.
"Senior Partnership Units" shall have the meaning set forth in paragraph (a)
of Section 9 of this Exhibit G.
"Series E Articles Supplementary " MEANS the Articles Supplementary to the
Amended and restated Articles of Incorporation of the General Partner, dated
December 21, 2000, designating the Series E Preferred Stock.
"Series E Partnership Preferred Unit" means a Partnership Preferred Unit with
the designations, preferences and relative, participating, optional or other
special rights, powers and duties as are set forth in this Exhibit G. It is
the intention of the General Partner that each Series E Partnership Preferred
Unit shall be substantially the economic equivalent of one share of Series E
Preferred Stock.
"Series E Preferred Stock" means the Series E Convertible Cumulative Preferred
Stock, par value $0.01 per share, of the General Partner, with the preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications and terms and conditions of redemption set forth in
the Series E Articles Supplementary.
3. Distributions.
On every Distribution Payment Date, the holders of Series E Partnership
Preferred Units shall be entitled to receive distributions payable in cash
in an amount per Series E Partnership Preferred Unit equal
to the per share dividend payable on the Series E Preferred Stock on such
Distribution Payment Date. Each such distribution shall be
payable to the holders of record of the Series E Partnership Preferred Units,
as they appear on the records of the Partnership at the close of business on
the record date for the dividend payable with respect to the
Series E Preferred Stock on such Distribution Payment Date. Holders of Series
E Partnership Preferred Units shall not be entitled to any
distributions on the Series E Partnership Preferred Units, whether payable
in cash, property or stock, except as provided herein.
4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Partnership, whether voluntary or involuntary, before any payment or
distribution of the Partnership (whether capital, surplus or otherwise) shall
be made to or set apart for the holders of Junior Partnership Units, the
holders of Series E Partnership Preferred Units shall be entitled to receive
the greater of: (x) One Hundred Dollars ($100.00) per Series E
Partnership Preferred Unit , plus an amount per Series E Partnership Preferred
Unit equal to all dividends (whether or not declared) accumulated, accrued and
unpaid on one share of Series E Preferred Stock to the date of
final distribution to such holders; and (y) the amount per Series E Partnership
Preferred Unit a holder would receive if such holder
converted his or her Series E Partnership Preferred Units into Partnership
Common Units immediately prior to such liquidation, dissolution or winding-up
(the "Liquidation Preference"); but such holders shall not be
entitled to any further payment. Until the holders of the Series E Partnership
Preferred Units have been paid the Liquidation Preference in full, no payment
shall be made to any holder of Junior Partnership Units upon the liquidation,
dissolution or winding up of the Partnership. If, upon any
liquidation, dissolution or winding up of the Partnership, the assets of the
Partnership, or proceeds thereof, distributable among the
holders of Series E Partnership Preferred Units shall be insufficient to pay
in full the preferential amount aforesaid and liquidating payments on any
Parity Partnership Units, then such assets, or the proceeds thereof, shall
be distributed among the holders of Series E Partnership Preferred
Units and any such Parity Partnership Units ratably in the same proportion
as the respective amounts that would be payable on such Series E
Partnership Preferred Units and any such other Parity Partnership Units if
all amounts payable thereon were paid in full. For the purposes of this
Section 4, (i) a consolidation or merger of the Partnership
with one or more partnerships, or (ii) a sale or transfer of all or
substantially all of the Partnership's assets shall not be deemed
to be a liquidation, dissolution or winding up, voluntary or involuntary, of
the Partnership.
(b) Upon any liquidation, dissolution or winding up of the Partnership, after
payment shall have been made in full to the holders of Series E Partnership
Preferred Units and any Parity Partnership Units, as provided in
this Section 4, any other series or class or classes of Junior Partnership
Units shall, subject to the respective terms thereof, be
entitled to receive any and all assets remaining to be paid or distributed,
and the holders of the Series E Partnership Preferred
Units and any Parity Partnership Units shall not be entitled to share therein.
5. Redemption.
Series E Partnership Preferred Units shall be redeemable by the Partnership
as follows:
(a) At any time that the General Partner exercises its right to redeem all
or any of the shares of Series E Preferred Stock, the
General Partner shall cause the Partnership to redeem an equal number of
Series E Partnership Preferred Units, at a redemption
price per Series E Partnership Preferred Unit equal to the same price paid
by the General Partner to redeem the Series E Preferred
Stock, and such price shall be paid in the same manner as paid by the General
Partner for the Series E Preferred Stock redeemed on the same date as the date
of redemption of the Series E Preferred Stock (the "Call Date"), in the manner
set forth herein; provided, however, that in the event of a
redemption of Series E Partnership Preferred Units, if the Call Date occurs
after a dividend record date for the Series E Preferred Stock and on or prior
to the related Distribution Payment Date, the distribution payable on such
Distribution Payment Date in respect of such Series E Partnership Preferred
Units called for redemption shall be payable on such Distribution Payment
Date to the holders of record of such Series E Partnership Preferred
Units on the applicable dividend record date, and shall not be payable as
part of the redemption price for such Series E Partnership Preferred Units.
(b) If the Partnership shall redeem Series E Partnership Preferred Units
pursuant to paragraph (a) of this Section 5, from and after the Call Date
(unless the Partnership shall fail to make available the amount of
cash or other forms of consideration necessary to effect such redemption),
(i) except for payment of the redemption price, the Partnership shall not
make any further distributions on the Series E Partnership Preferred Units
so called for redemption, (ii) said units shall no longer be deemed to
be outstanding, and (iii) all rights of the holders thereof as holders of
Series E Partnership Preferred Units of the Partnership shall cease except
the rights to receive the cash payable upon such redemption, without interest
thereon; provided, however, that if a Call Date occurs after a dividend
record date for the Series E Preferred Stock and on or prior to the
related Distribution Payment Date, the full distribution payable on such
Distribution Payment Date in respect of such Series E Partnership Preferred
Units called for redemption shall be payable on such Distribution Payment
Date to the holders of record of such Series E Partnership Preferred
Units on the applicable dividend record date notwithstanding the prior
redemption of such Series E Partnership Preferred Units. No
interest shall accrue for the benefit of the holders of Series E Partnership
Preferred Units to be redeemed on any cash set aside by
the Partnership.
6. Repurchase
Series E Partnership Preferred Units shall be repurchased by the Partnership
if a "Fundamental Change" or "REIT Termination Event" (as such terms are
defined in the Series E Articles Supplementary) occurs and the General Partner
is required to repurchase any of the shares of Series E Preferred
Stock.
(a) At the time that the General Partner repurchases any of the shares of
Series E Preferred Stock, the General Partner shall cause the Partnership
to repurchase an equal number of Series E Partnership Preferred
Units, at a price per Series E Partnership Preferred Unit equal to the
repurchase price specified in the Series E Articles Supplementary for the
shares of Series E Preferred Stock, and such price shall be paid
in the same manner as paid by the General Partner for the Series E Preferred
Stock repurchased on the same date as the date of repurchase of the Series E
Preferred Stock (the "Repurchase Date"), in the manner set
forth herein; provided, however, that in the event of a repurchase of Series
E Partnership Preferred Units, if the Repurchase Date
occurs after a dividend record date for the Series E Preferred Stock and on
or prior to the related Distribution Payment Date, the
distribution payable on such Distribution Payment Date in respect of such
Series E Partnership Preferred Units to be repurchased shall be payable on
such Distribution Payment Date to the holders of record of such Series
E Partnership Preferred Units on the applicable dividend record date, and
shall not be payable as part of the Repurchase Price for such Series E
Partnership Preferred Units.
(b) If the Partnership shall repurchase Series E Partnership Preferred Units
pursuant to paragraph (a) of this Section 6, from and after the Repurchase
Date (unless the Partnership shall fail to make available the
amount of cash or other forms of consideration necessary to effect such
redemption), (i) except for payment of the repurchase price, the Partnership
shall not make any further distributions on the Series
E Partnership Preferred Units repurchased, (ii) said units shall no longer
be deemed to be outstanding, and (iii) all rights of the holders thereof as
holders of Series E Partnership Preferred Units of the
Partnership shall cease except the rights to receive the cash payable upon such
repurchase, without interest thereon; provided, however, that if a Repurchase
Date occurs after a dividend record date for the Series E Preferred Stock
and on or prior to the related Distribution Payment Date, the
full distribution payable on such Distribution Payment Date in respect of such
Series E Partnership Preferred Units to be repurchased shall be payable on such
Distribution Payment Date to the holders of record of such Series E Partnership
Preferred Units on the applicable dividend record date
notwithstanding the prior repurchase of such Series E Partnership Preferred
Units. No interest shall accrue for the benefit of the
holders of Series E Partnership Preferred Units to be repurchased on any cash
set aside by the Partnership.
7. Status of Reacquired Units.
All Series E Partnership Preferred Units which shall have been issued and
reacquired in any manner by the Partnership shall be deemed cancelled.
8. Conversion.
Series E Partnership Preferred Units shall be convertible as follows:
(a) Upon any conversion of shares of Series E Preferred Stock into shares of
Common Stock, the General Partner shall cause a number of Series E Partnership
Preferred Units equal to the number of such converted shares of Series
E Preferred Stock to be converted by the holders thereof into Partnership
Common Units. The conversion ratio in effect from time to time for the
conversion of Series E Partnership Preferred Units into Partnership
Common Units pursuant to this Section 8 shall at all times be equal to, and
shall be automatically adjusted as necessary to reflect, the conversion ratio
in effect from time to time for the conversion of Series E
Preferred Stock into Common Stock.
(b) In the event of a conversion of any Series E Partnership Preferred Units,
the Partnership shall make a cash payment to the holder thereof equal to the
cash payment required to be made by the General Partner to the holder of the
shares of Series E Preferred Stock the conversion of which
required the conversion of such Series E Partnership Preferred Units. Holders
of Series E Partnership Preferred Units at the close of business on a
distribution payment record date shall be entitled to receive the
distribution payable on such units on the corresponding Distribution Payment
Date notwithstanding the conversion thereof following such distribution
payment record date and prior to such Distribution Payment
Date. Except as provided above, the Partnership shall make no payment or
allowance for unpaid distributions on converted units or for distributions on
the Partnership Common Units issued upon such conversion. Each conversion of
Series E Partnership Preferred Units into Partnership Common Units shall be
deemed to have been effected at the same time and date that the
corresponding conversion of Series E Preferred Stock into Common Stock is
deemed to have been effected.
(c) No fractional Partnership Common Units shall be issued upon conversion of
Series E Partnership Preferred Units. Instead of any fractional Partnership
Common Units that would otherwise be deliverable upon the
conversion of Series E Partnership Preferred Units, the Partnership shall pay
to the holder of such converted units an amount in cash equal to the cash
payable to a holder of an equivalent number of converted shares of
Series E Preferred Stock in lieu of fractional shares of Common Stock.
(d) The Partnership will pay any and all documentary stamp or similar issue or
transfer taxes payable in respect of (i) the issue or delivery of Partnership
Common Units or other securities or property on conversion
or redemption of Series E Partnership Preferred Units pursuant hereto, and
(ii) the issue or delivery of Common Stock or other securities or property on
conversion or redemption of Series E Preferred Stock pursuant to the terms
hereof.
9. Ranking.
Any class or series of Partnership Units of the Partnership shall be deemed to
rank:
(a) prior or senior to the Series E Partnership Preferred Units, as to the
payment of distributions and as to distributions of assets upon liquidation,
dissolution or winding up, if the holders of such class or series shall be
entitled to the receipt of distributions and of amounts
distributable upon liquidation, dissolution or winding up, as the case may be,
in preference or priority to the holders of Series E Partnership Preferred
Units ("Senior Partnership Units");
(b) on a parity with the Series E Partnership Preferred Units, as to the
payment of distributions and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the distribution
rates, distribution payment dates or redemption or liquidation prices per
unit or other denomination thereof be different from
those of the Series E Partnership Preferred Units if the holders of such
class or series of Partnership Units and the Series E Partnership Preferred
Units shall be entitled to the receipt of distributions and of
amounts distributable upon liquidation, dissolution or winding up in
proportion to their respective amounts of accrued and
unpaid distributions per unit or other denomination or liquidation preferences,
without preference or priority one over the other (the Partnership Units
referred to in this paragraph being hereinafter referred to
as "Parity Partnership Units"), and
(c) junior to the Series E Partnership Preferred Units, as to the payment of
distributions and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series of
Partnership Units shall be Partnership Common Units or the holders of Series E
Partnership Preferred Units shall be entitled to receipt
of distributions or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority
to the holders of such class or series of Partnership Units (the Partnership
Units referred to in this paragraph being hereinafter referred to,
collectively, as "Junior Partnership Units").
10. Special Allocations.
(a) Gross income and, if necessary, gain shall be allocated to the holders of
Series E Partnership Preferred Units for any Fiscal Year (and, if necessary,
subsequent Fiscal Years) to the extent that the holders of
Series E Partnership Preferred Units receive a distribution on any Series E
Partnership Preferred Units (other than an amount included in any redemption
pursuant to Section 5 hereof) with respect to such Fiscal Year.
(b) If any Series E Partnership Preferred Units are redeemed pursuant to
Section 5 hereof, for the Fiscal Year that includes such redemption (and, if
necessary, for subsequent Fiscal Years) (a) gross income and
gain (in such relative proportions as the General Partner in its discretion
shall determine) shall be allocated to the holders of Series E Partnership
Preferred Units to the extent that the redemption amounts paid
or payable with respect to the Series E Partnership Preferred Units so redeemed
exceeds the aggregate Capital Contributions (net of liabilities assumed or
taken subject to by the Partnership) per Series E Partnership Preferred Unit
allocable to the Series E Partnership Preferred Units so redeemed and (b)
deductions and losses (in such relative proportions as the General
Partner in its discretion shall determine) shall be allocated to the holders
of Series E Partnership Preferred Units to the extent that the aggregate
Capital Contributions (net of liabilities assumed or taken subject to by
the Partnership) per Series E Partnership Preferred Unit allocable to the
Series E Partnership Preferred Units so redeemed exceeds the redemption amount
paid or payable with respect to the Series E Partnership Preferred Units so
redeemed.
11. Restrictions on Ownership.
The Series E Partnership Preferred Units shall be owned and held solely by the
General Partner or the QRS.
12. Vote Required for Amendment, Merger, Consolidation, etc.
So long as any Series E Partnership Preferred Units are outstanding, in
addition to any other vote or consent required by law or by
the Agreement, the affirmative vote of at least 66-2/3% of the holders of
the Series E Partnership Preferred Units, given in person
or by proxy, either in writing without a meeting or by vote at any meeting
called for the purpose, shall be necessary for effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions of the
Agreement, or this Exhibit E thereto, that materially and adversely affects
the powers, rights or preferences of the holders of the shares of
Series E Partnership Preferred Units; PROVIDED, HOWEVER, that the amendment
of the provisions of the Agreement so as to authorize or create or to
increase the authorized amount of, any Junior Partnership
Units, or other Units that are not senior in any respect to the Series E
Partnership Preferred Units or any Parity Partnership Units shall not be
deemed to materially adversely affect the powers, rights or
preferences of the holders of Series E Partnership Preferred Units; or
(b) An exchange that affects the Series E Partnership Preferred Units, a
consolidation with or merger of the Partnership into another entity, or a
consolidation with or merger of another entity into the
Partnership, unless in each such case each Series E Partnership Preferred
Unit (i) shall remain outstanding without a material and adverse change to
its terms and rights or (ii) shall be converted into or exchanged for
convertible preferred securities of the surviving entity having preferences,
conversion or other rights, powers, restrictions, limitations as to
distributions, qualifications and terms or conditions of redemption thereof
identical to that of a Series E Partnership Preferred Unit (except for
changes that, do not materially and adversely affect the holders of the
Series E Partnership Preferred Units); or
(c) The authorization, reclassification or creation of, or the increase in the
authorized amount of, any Units of any series, or any security convertible into
Units of any series, ranking prior to the Series E Partnership Preferred Units
in the distribution of assets on any liquidation, dissolution or winding up of
the Partnership or in the payment of distributions; or
(d) Any increase in the authorized amount of Series E Partnership Preferred
Units or decrease in the authorized amount of Series E Partnership Preferred
Units below the number of Series E Partnership Preferred Units then
issued and outstanding;
provided, however, that no such vote of the holders of Series E Partnership
Preferred Units shall be required if, at or prior to the time when such
amendment, alteration or repeal is to take effect, or when the
issuance of any such prior Units or convertible security is to be made, as the
case may be, provision is made for the redemption or repurchase of all Series E
Partnership Preferred Units at the time outstanding to the extent such
redemption or repurchase is authorized by Section 5 or 6 hereof.
For purposes of the foregoing provisions of
this Section 12, each Series E Partnership
Preferred Unit shall have one (1) vote,
except that when any other series of
Preferred Units shall have the right to vote
with the Series E Partnership Preferred Units
as a single class on any matter, then the
Series E Partnership Preferred Units and such
other series shall have with respect to such
matters one (1) vote per $100.00 of stated
value. Except as otherwise required by
applicable law or as set forth herein, the
Series E Partnership Preferred Units shall
not have any relative, participating,
optional or other special voting rights and
powers other than as set forth herein, and
the consent of the holders thereof shall not
be required for the taking of any Partnership
action.
13. General
(a) The ownership of Series E Partnership
Preferred Units may (but need not, in the
sole and absolute discretion of the General
Partner) be evidenced by one or more
certificates. The General Partner shall amend
Exhibit A to the Agreement from time to time
to the extent necessary to reflect accurately
the issuance of, and subsequent conversion,
redemption, or any other event having an
effect on the ownership of, Series E
Partnership Preferred Units.
(b) The rights of the General Partner and the
QRS, in their capacity as holders of the
Series E Partnership Preferred Units, are in
addition to and not in limitation of any
other rights or authority of the General
Partner or the QRS, respectively, in any
other capacity under the Agreement or
applicable law. In addition, nothing
contained herein shall be deemed to limit or
otherwise restrict the authority of the
General Partner or the QRS under the
Agreement, other than in their capacity as
holders of the Series E Partnership Preferred
Units.
14. Economic Equivalency.
Notwithstanding any other provision of this
Exhibit G, the shares of Series E Preferred
Stock and the Series E Partnership Preferred
Units are intended to be substantially
equivalent in distributions and other
payments. In the event that any provision of
this Exhibit G would result in a different
distribution or other payments being made to
the holder of a Series E Partnership
Preferred Units than to a holder of a share
of Series E Preferred Stock, this Exhibit G
shall be deemed automatically amended to
conform to the terms of the Series E Articles
Supplementary with respect to such
distribution or other payment.