EXHIBIT 3.2
REGENCY CENTERS, L.P.
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP (THE "PARTNERSHIP AGREEMENT")
RELATING TO 8.125% SERIES A CUMULATIVE REDEEMABLE PREFERRED UNITS
SECTION 1. DEFINITIONS. Capitalized terms used and not otherwise
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defined herein shall have the meaning assigned thereto in the Partnership
Agreement. For purposes of this Amendment, the term "PARITY PREFERRED UNITS"
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shall be used to refer to any class or series of Partnership Interests of the
Partnership now or hereafter authorized, issued or outstanding expressly
designated by the Partnership to rank on a parity with Series A Preferred Units
(as hereafter defined) with respect to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Partnership, or both,
as the context may require, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per unit or conversion rights or
exchange rights shall be different from those of the Series A Preferred Units.
The term "PRIORITY RETURN" shall mean, an amount equal to 8.125% per annum,
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determined on the basis of a 360 day year of twelve 30 day months (or actual
days for any month which is shorter than a full monthly period), cumulative to
the extent not distributed for any given distribution period, of the stated
value of $50 per Series A Preferred Unit, commencing on the date of issuance of
such Series A Preferred Unit. The term "SUBSIDIARY" shall mean with respect to
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any person, any corporation, partnership, limited liability company, joint
venture or other entity of which a majority of (i) voting power of the voting
equity securities or (ii) the outstanding equity interests, is owned, directly
or indirectly, by such person. The term "PTP" shall mean a "publicly traded
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partnership" within the meaning of Section 7704 of the Code (as hereinafter
defined). The following Paragraph shall be added to the end of the definition of
"Net Income" and "Net Loss" in the Partnership Agreement (new language is
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underscored):
"SOLELY FOR PURPOSES OF ALLOCATING NET INCOME OR NET LOSS IN
ANY FISCAL YEAR TO THE HOLDERS OF THE SERIES A PREFERRED UNITS,
ITEMS OF NET INCOME AND NET LOSS, AS THE CASE MAY BE, SHALL NOT
INCLUDE DEPRECIATION WITH RESPECT TO PROPERTIES (OR GROUPINGS OF
PROPERTIES SELECTED BY THE GENERAL PARTNER USING ANY METHOD
DETERMINED BY IT TO BE REASONABLE) THAT ARE "CEILING LIMITED" IN
RESPECT OF THE HOLDERS OF THE SERIES A PREFERRED UNITS. FOR
PURPOSES OF THE PRECEDING SENTENCE, PARTNERSHIP PROPERTY SHALL BE
CONSIDERED CEILING LIMITED IN RESPECT OF A HOLDER OF SERIES A
PREFERRED UNITS IF DEPRECIATION ATTRIBUTABLE TO SUCH PARTNERSHIP
PROPERTY WHICH WOULD OTHERWISE BE ALLOCABLE TO SUCH PARTNER,
WITHOUT REGARD TO THIS PARAGRAPH, EXCEEDED DEPRECIATION
DETERMINED FOR FEDERAL INCOME TAX PURPOSES ATTRIBUTABLE TO SUCH
PARTNERSHIP PROPERTY WHICH WOULD OTHERWISE BE ALLOCATED TO SUCH
PARTNER BY MORE THAN 5%."
SECTION 2. DESIGNATION AND NUMBER. A series of Partnership Units in
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the Partnership designated as the "8.125% Series A Cumulative Redeemable
Preferred Units" (the "SERIES A PREFERRED UNITS") is hereby established. The
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number of Series A Preferred Units shall be 1,600,000.
SECTION 3. RANK.
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(a) The Series A Preferred Units will, with respect to distributions
or rights upon voluntary or involuntary liquidation, winding-up or dissolution
of the Partnership, or both, rank senior to all classes or series of Partnership
Interests now or hereafter authorized, issued or outstanding, other than any
class or series of equity securities of the Partnership issued after the
issuance of the Series A Preferred Units and expressly designated in accordance
with the Partnership Agreement as ranking on a parity with or senior to the
Series A Preferred Units as to distributions or rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Partnership, or both.
(b) The last sentence of Section 4.1(a) of the Partnership Agreement
shall be amended to read in full as follows (new language is underscored):
Any Partnership Interests held by the General Partner or any
Affiliate other than a Property Affiliate (including
Partnership Interests acquired under Sections 4.2, 8.6 and
8.7) shall be Class B. Units, OTHER THAN THE SERIES A
PREFERRED UNITS, THE ISSUANCE OF WHICH HAS BEEN APPROVED BY
THE LIMITED PARTNERS PURSUANT TO SECTION 4.2.
SECTION 4. DISTRIBUTIONS.
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(a) Payment of Distributions. Subject to the rights of holders of
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Parity Preferred Units and any holders of Partnership Interests issued after the
date hereof in accordance herewith ranking senior to the Series A Preferred
Units as to the payment of distributions, holders of Series A Preferred Units
shall be entitled to receive, when, as and if declared by the Partnership acting
through the General Partner, out of Available Cash and Capital Transaction
Proceeds, cumulative preferential cash distributions at the rate per annum of
8.125% of the original Capital Contribution per Series A Preferred Unit. Such
distributions shall be cumulative, shall accrue from the original date of
issuance and will be payable (A) quarterly in arrears, on or before March 31,
June 30, September 30 and December 31 of each year commencing on June 30, 1998
and, (B), in the event of (i) an exchange of Series A Preferred Units into
Series A Preferred Stock, or (ii) a redemption of Series A Preferred Units, on
the exchange date or redemption date, as applicable (each a "Preferred Unit
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Distribution Payment Date"). The amount of the distribution payable for any
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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 a 30-day month. If any date
on which distributions are to be made on the Series A Preferred Units 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 June 30, 1998 and
thereafter on the Series A Preferred Units will be made to the holders of record
of the Series A Preferred Units on the relevant record dates to be fixed by the
Partnership acting through the General Partner, which record dates shall be not
less than ten (10) days and not more than thirty (30) Business Days prior to the
relevant Preferred Unit Distribution Payment Date (the "PREFERRED UNIT
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PARTNERSHIP RECORD DATE").
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The term "BUSINESS DAY" shall mean each day, other than a Saturday or
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a Sunday, which is not a day on which banking institutions in New York, New York
are authorized or required by law, regulation or executive order to close.
(b) Limitation on Distributions. No distribution on the Series A
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Preferred Units shall be declared or paid or set apart for payment by the
Partnership at such time as the terms and provisions of any agreement of the
Partnership relating to its indebtedness (other than any agreement with the
holder of Partnership Interests or an Affiliate thereof), prohibits such
declaration, payment or setting apart for payment or provide, that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, payment or setting
apart for payment shall be restricted or prohibited by law. Nothing in this
Section 4(b) shall be deemed to modify or in any manner limit the provisions of
Sections 4(c) or 4(d).
(c) Distributions Cumulative. Distributions on the Series A Preferred
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Units will accrue whether or not the terms and provisions of any agreement of
the Partnership, including any agreement relating to its indebtedness at any
time prohibit the current payment of distributions, whether or not the
Partnership has earnings, whether or not there are funds legally available for
the payment of such of such distributions and whether or not such distributions
are authorized. Accrued but unpaid distributions on the Series A Preferred
Units will accumulate as of the Preferred Unit 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 Unit Distribution Payment Date to holders of
record of the Series A Preferred Units on the record date fixed by the
Partnership acting through the General Partner which date shall be not less than
ten (10) days and not more than thirty (30) Business Days prior to the payment
date. Accumulated and unpaid distributions will not bear interest.
(d) Priority as to Distributions.
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(i) So long as any Series A Preferred Units are outstanding, no
distribution of cash or other property shall be authorized, declared, paid or
set apart for payment on or with respect to any class or series of Partnership
Interests of the Partnership ranking junior as to the payment of distributions
to the Series A Preferred Units (collectively, "JUNIOR UNITS"), nor shall any
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cash or other property be set aside for or applied to the purchase, redemption
or other acquisition for consideration of any Series A Preferred Units, any
Parity Preferred Units with respect to distributions or any Junior Units,
unless, in each case, all distributions accumulated on all Series A Preferred
Units and all classes and series of outstanding Parity Preferred Units as to
payment of distributions have been paid in full. The foregoing sentence will
not prohibit (a) distributions payable solely in Junior Units, (b) the
conversion of Junior Units or Parity Preferred Units into Partnership Interests
of the Partnership ranking junior to the Series A Preferred Units as to
distributions, or (c) the redemption of Partnership Interests corresponding to
any Series A Preferred Stock, Parity Preferred Stock with respect to
distributions or Junior Stock to be purchased by the General Partner pursuant to
Article 5 of the Articles of Incorporation of the General Partner (the
"CHARTER") to preserve the General Partner's status as a real estate investment
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trust, provided that such redemption shall be upon the same terms as the
corresponding purchase pursuant to Article 5 of the Charter.
(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 A Preferred Units, all distributions authorized and
declared on the Series A Preferred Units and all classes or series of
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outstanding Parity Preferred Units with respect to distributions shall be
authorized and declared so that the amount of distributions authorized and
declared per Series A Preferred Unit and such other classes or series of Parity
Preferred Units shall in all cases bear to each other the same ratio that
accrued distributions per Series A Preferred Unit and such other classes or
series of Parity Preferred Units (which shall not include any accumulation in
respect of unpaid distributions for prior distribution periods if such class or
series of Parity Preferred Units do not have cumulative distribution rights)
bear to each other.
(e) No Further Rights. Holders of Series A Preferred Units shall not
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be entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
(f) Section 5.1 of the Partnership Agreement is hereby deleted and
the following inserted as a new Section 5.1 in lieu thereof (new language is
underscored):
Section 5.1 Requirement and Characterization of Distributions.
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(a) The General Partner shall distribute quarterly an amount equal to
100% of Available Cash generated by the Partnership during such quarter to
the Partners who are Partners on the Partnership Record Date with respect
to such quarter as follows (and for this purpose, the holders of Class A
Units shall be treated as if they were Original Limited Partners):
(i) First, one hundred percent (100%) to the Original Limited
Partners, pro rata based on the number of Original Limited Partnership
Units held by each such Partner on the applicable Partnership Record
Date, until each has received an amount equal to the Priority
Distribution Amount for the quarter for each such Unit;
(ii) Next, if any Original Limited Partners have a positive
Cumulative Unpaid Accrued Return Account, one hundred percent (100%)
to such Original Limited Partners, pro rata based on the relative
amounts of their Cumulative Unpaid Accrued Return Accounts, until each
such Cumulative Unpaid Accrued Return Account reaches zero;
(iii) Next, if any Original Limited Partners have a positive
Cumulative Unpaid Priority Distribution Account, one hundred percent
(100%) to such Original Limited Partners, pro rata based on the
relative amounts of their Cumulative Unpaid Priority Distribution
Accounts, until each such Cumulative Unpaid Priority Distribution
Account reaches zero;
(iv) Next, one hundred percent (100%) to the Additional Limited
Partners, pro rata based on the relative amounts of their Priority
Distribution Amounts, until each has received an amount equal to the
Priority Distribution Amount for the quarter for each Unit held by
such Additional Limited Partner on the applicable Partnership Record
Date;
(v) Next, if any Additional Limited Partners have a positive
Cumulative Unpaid Accrued Return Account, one hundred percent (100%)
to such Limited Partners, pro rata based on the relative amounts of
their Cumulative Unpaid Accrued Return Accounts, until each such
Cumulative Unpaid Accrued Return Account reaches zero;
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(vi) Next, if any Additional Limited Partners have a positive
Cumulative Unpaid Priority Distribution Account, one hundred percent
(100%) to such Additional Limited Partners, pro rata based on the
relative amounts of their Cumulative Unpaid Priority Distribution
Accounts, until each such Cumulative Unpaid Priority Distribution
Account reaches zero; and
(vii) Thereafter, to the General Partner and any other holders
of Class B Units, pro rata in accordance with the relative number of
Class B Units held by each.
(b) The General Partner shall distribute Capital Transaction Proceeds
received by the Partnership within 30 days after the date of such Capital
Transaction, provided that the General Partner has given the Limited
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Partners 20 days' prior written notice of the date for any such
distribution (the "Capital Transaction Record Date"), as follows (and for
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this purpose, the holders of Class A Units shall be treated as if they were
Original Limited Partners):
(i) First, if any Original Limited Partners have a positive
Cumulative Unpaid Accrued Return Account, one hundred percent (100%)
to such Original Limited Partners, pro rata based on the relative
amounts of their Cumulative Unpaid Accrued Return Accounts, until each
such Cumulative Unpaid Accrued Return Account reaches zero;
(ii) Next, if any Original Limited Partners have a positive
Cumulative Unpaid Priority Distribution Account, one hundred percent
(100%) to such Original Limited Partners, pro rata based on the
relative amounts of their Cumulative Unpaid Priority Distribution
Accounts, until each such Cumulative Unpaid Priority Distribution
Account reaches zero;
(iii) Next, if any Additional Limited Partners have a positive
Cumulative Unpaid Accrued Return Account, one hundred percent (100%)
to such Additional Limited Partners, pro rata based on the relative
amounts of their Cumulative Unpaid Accrued Return Accounts, until each
such Cumulative Unpaid Accrued Return Account reaches zero;
(iv) Next, if any Additional Limited Partners have a positive
Cumulative Unpaid Priority Distribution Account, one hundred percent
(100%) to such Additional Limited Partners, pro rata based on the
relative amounts of their Cumulative Unpaid Priority Distribution
Accounts, until each such Cumulative Unpaid Priority Distribution
Account reaches zero; and
(v) Thereafter, to the General Partner and any other holders of
Class B Units, pro rata in accordance with the relative number of
Class B Units held by each.
(C) ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, NO AVAILABLE
CASH OR CAPITAL TRANSACTION PROCEEDS SHALL BE DISTRIBUTED PURSUANT TO
SECTION 5.1(A) OR SECTION 5.1(B) UNLESS ALL DISTRIBUTIONS ACCUMULATED ON
ALL SERIES A PREFERRED UNITS HAVE BEEN PAID IN FULL.
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SECTION 5. ALLOCATIONS.
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(a) Sections 6.1(a) and 6.1(b) of the Agreement are hereby deleted
and the following inserted as new Sections 6.1(a) and 6.1(b) in lieu
thereof (new language is underscored):
Section 6.1 Allocations of Net Income and Net Loss. For purposes of
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maintaining the Capital Accounts and in determining the rights of the Partners
among themselves, the Partnership's Net Income and Net Loss shall be allocated
among the Partners for each taxable year (or portion thereof) as provided herein
below.
(a) Net Income. After giving effect to the special allocations set
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forth in Section 6.2 below, Net Income shall be allocated as follows (and
for this purpose, the holders of Class A Units shall be treated as if they
were Original Limited Partners):
(i) First, one hundred percent (100%) to the General Partner in
an amount equal to the excess, if any, of (A) the cumulative Net
Losses allocated to the General Partner pursuant to Section 6.1(B)(IX)
and the last sentence of Section 6.1(b) for all prior fiscal years,
over (B) the cumulative Net Income allocated pursuant to this Section
6.1(a)(i) for all prior fiscal years;
(II) SECOND, ONE HUNDRED PERCENT (100%) TO THE HOLDERS OF SERIES
A PREFERRED UNITS IN AN AMOUNT EQUAL TO THE EXCESS, IF ANY, OF (A) THE
CUMULATIVE NET LOSSES ALLOCATED TO THE HOLDERS OF SERIES A PREFERRED
UNITS PURSUANT TO SECTION 6.1(B)(VIII) FOR ALL PRIOR FISCAL YEARS,
OVER (B) THE CUMULATIVE NET INCOME ALLOCATED PURSUANT TO THIS SECTION
6.1(A)(II) AND SECTION 6.2(G) FOR ALL PRIOR FISCAL YEARS;
(III) THIRD, one hundred percent (100%) to the Original Limited
Partners in an amount equal to the excess, if any, of (A) the
cumulative Net Losses allocated to such Partners pursuant to Section
6.1(b)(iv) for all prior fiscal years, over (B) the cumulative Net
Income allocated pursuant to this Section 6.1(a)(iii) for all prior
fiscal years, which amount shall be allocated among the Partners in
the same proportions and in the reverse order as the Net Losses were
allocated pursuant to Section 6.1(b)(iv);
(IV) FOURTH, one hundred percent (100%) to the Original Limited
Partners in an amount equal to the excess, if any, of (A) the
cumulative Net Losses allocated to such Partners pursuant to Section
6.1(b)(iii) for all prior fiscal years, over (B) the cumulative Net
Income allocated pursuant to this Section 6.1(a)(iv) for all prior
fiscal years, which amount shall be allocated among such Partners in
the same proportions and in the reverse order as the Net Losses were
allocated pursuant to Section 6.1(b)(iii);
(V) FIFTH, ONE HUNDRED PERCENT (100%) TO THE HOLDERS OF SERIES
A PREFERRED UNITS UNTIL THE HOLDERS OF SERIES A PREFERRED UNITS HAVE
BEEN ALLOCATED AN AMOUNT EQUAL TO THE REMAINDER, IF ANY, OF THE
CUMULATIVE PRIORITY RETURN TO THE LAST DAY OF THE CURRENT FISCAL YEAR,
MINUS THE CUMULATIVE NET INCOME ALLOCATED TO THE HOLDERS OF SERIES A
PREFERRED UNITS PURSUANT TO THIS SECTION 6.1(A)(V) AND SECTION 6.2(G)
FOR ALL PRIOR PERIODS;
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(VI) SIXTH, one hundred percent (100%) to the Original
Limited Partners until the cumulative allocations of Net Income to
each Original Limited Partner under this Section 6.1(a)(vi) for the
current and all prior fiscal years equal the cumulative distributions
paid to the Original Limited Partner pursuant to Section 5.1(a)(i) and
Section 13.2(a)(iii);
(VII) SEVENTH, one hundred percent (100%) to the Original
Limited Partners until the cumulative allocations of Net Income to
each Original Limited Partner under this Section 6.1(a)(vii) for the
current and all prior fiscal years equal the sum of the cumulative
amounts credited to such Partner's Cumulative Unpaid Priority
Distribution Account and Cumulative Unpaid Accrued Return Account for
the current and all prior fiscal years;
(VIII) EIGHTH, one hundred percent (100%) to the Additional
Limited Partners in an amount equal to the excess, if any, of (A) the
cumulative Net Losses allocated to the Additional Limited Partners
pursuant to Section 6.1(b)(vii) for all prior fiscal years, over (B)
the cumulative Net Income allocated pursuant to this Section
6.1(a)(viii) for all prior fiscal years, which amount shall be
allocated among the Additional Limited Partners in the same
proportions and in the reverse order as the Net Losses were allocated
pursuant to Section 6.1(b)(vii);
(IX) NINTH, one hundred percent (100%) to the Additional
Limited Partners in an amount equal to the excess, if any, of (A) the
cumulative Net Losses allocated to the Additional Limited Partners
pursuant to Section 6.1(b)(vi) for all prior fiscal years, over (B)
the cumulative Net Income allocated pursuant to this Section
6.1(a)(ix) for all prior fiscal years, which amount shall be allocated
among such Partners in the same proportions and in the reverse order
as the Net Losses were allocated pursuant to Section 6.1(b)(vi);
(X) TENTH, one hundred percent (100%) to the
Additional Limited Partners until the cumulative allocations of Net
Income to each Additional Limited Partner under this Section 6.1(A)(X)
for the current and all prior fiscal years equal the cumulative
distributions paid to the Additional Limited Partners pursuant to
Section 5.1(a)(iv) and Section 13.2(a)(iv);
(XI) ELEVENTH, one hundred percent (100%) to the Additional
Limited Partners until the cumulative allocations of Net Income to
each Additional Limited Partner under this Section 6.1(A)(XI) for the
current and all prior fiscal years equal the sum of the cumulative
amounts credited to such Partner's Cumulative Unpaid Priority
Distribution Account and Cumulative Unpaid Accrued Return Account for
the current and all prior fiscal years; and
(XII) Thereafter, to the General Partner and any other holders
of Class B Units, pro rata in accordance with the relative number of
Class B Units held by each.
(b) Net Losses. After giving effect to the special allocations set
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forth in Section 6.2 below, Net Losses shall be allocated as follows (and
for this purpose, the holders of Class A Units shall be treated as if they
were Original Limited Partners):
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(i) First, one hundred percent (100%) to the General Partner
and the Class B Unit holders in an amount equal to the excess, if any,
of (A) the cumulative Net Income allocated pursuant to Section
6.1(A)(XII) hereof for all prior fiscal years, over (B) the cumulative
Net Losses allocated pursuant to this Section 6.1(b)(i) for all prior
fiscal years;
(ii) Second, to the Original Limited Partners until the
cumulative allocations of Net Losses under this Section 6.1(b)(ii)
equal the excess, if any, of the cumulative allocations of Net Income
under Section 6.1(A)(VII) to such Partners for all prior fiscal years
over the cumulative distributions to such Partners under Section
5.1(a)(ii) and (iii) and Section 5.1(b)(i) and (ii) for the current
and all prior fiscal years (such allocation being made in proportion
to such Partners' respective excess amounts);
(iii) Third, to the Original Limited Partners with positive
Adjusted Capital Account balances (determined, solely for purposes of
this Section 6.1(b)(iii), without regard to any obligation of a
Partner to restore a negative Capital Account under Section 13.4), in
proportion to such balances, until such balances are reduced to zero;
(iv) Fourth, to the Original Limited Partners in proportion to
their relative Percentage Interests; provided, however, that to the
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extent that an allocation under this Section 6.1(b)(iv) would cause or
increase an Adjusted Capital Account Deficit for such Partner, such
Net Loss shall be allocated to those Original Limited Partners (in
proportion to their relative Percentage Interests) for whom such
allocation would not cause or increase an Adjusted Capital Account
Deficit; and
(v) Fifth, to the Additional Limited Partners until the
cumulative allocations of Net Losses under this Section 6.1(b)(v)
equal the excess, if any, of the cumulative allocations of Net Income
under Section 6.1(A)(XI) to such Partners for all prior fiscal years
over the cumulative distributions to such Partners under Section
5.1(a)(v) and (vi) and Section 5.1(b)(iii) and (iv) for the current
and all prior fiscal years (such allocation being made in proportion
to such Partners' respective excess amounts);
(vi) Sixth, to the Additional Limited Partners with positive
Adjusted Capital Accounts balances (determined, solely for purposes of
this Section 6.1(b)(vi), without regard to any obligation of a Partner
to restore a negative Capital Account under Section 13.4), in
proportion to such balances, until such balances are reduced to zero;
(vii) Seventh, to the Additional Limited Partners in proportion
to their relative Percentage Interests; provided, however, that to the
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extent that an allocation under this Section 6.1(b)(vii) would cause
or increase an Adjusted Capital Account Deficit for such Partner, such
Net Loss shall be allocated to those Additional Limited Partners (in
proportion to their relative Percentage Interests) for whom such
allocation would not cause or increase an Adjusted Capital Account
Deficit;
(VIII) EIGHTH, TO THE HOLDERS OF SERIES A PREFERRED UNITS UNTIL
THEIR ADJUSTED CAPITAL ACCOUNT BALANCE (DETERMINED, SOLELY FOR
PURPOSES OF THIS SECTION 6.1(B)(VIII),
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WITHOUT REGARD TO ANY OBLIGATION OF A PARTNER TO RESTORE A NEGATIVE
CAPITAL ACCOUNT UNDER SECTION 13.4), HAS BEEN REDUCED TO ZERO; AND
(IX) Any remaining Net Loss shall be allocated solely to
the General Partner.
Notwithstanding the foregoing, Net Losses shall not be allocated to any Limited
Partner pursuant to this Section 6.1(b)(ix) to the extent that such allocation
would cause such Limited Partner to have an Adjusted Capital Account Deficit at
the end of such taxable year (or increase any existing Adjusted Capital Account
Deficit). All Net Losses in excess of the limitations set forth in the
preceding sentence of this Section 6.1(b) shall be allocated to the General
Partner.
(b) Section 6.2(g) of the Agreement is hereby deleted and the
following inserted as new Section 6.2(g) in lieu thereof (new language is
underscored):
(g) Capital Account Adjustments. Notwithstanding anything herein to the
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contrary, any gain or loss arising from an adjustment to the Gross Asset Value
of any Partnership asset pursuant to clause (b) or (c) of the definition thereof
shall be allocated (I) FIRST, TO THE HOLDERS OF THE SERIES A PREFERRED UNITS,
BUT ONLY TO THE EXTENT THAT THEY WOULD HAVE BEEN ALLOCATED SUCH GAIN PURSUANT TO
SECTION 6.1(A)(II) OR SECTION 6.1(A)(V) OF THIS AGREEMENT OR SUCH LOSS PURSUANT
TO SECTION 6.1(B)(VIII) OF THIS AGREEMENT, AS APPLICABLE, IF SUCH GAIN OR LOSS
HAD BEEN ACTUALLY REALIZED; AND (II) SECOND, one hundred percent (100%) OF THE
REMAINDER OF SUCH GAIN OR LOSS to the General Partner and the Additional Limited
Partners (OTHER THAN HOLDERS OF SERIES A PREFERRED UNITS) pro-rata in accordance
with the relative number of Units held by each; provided, however, that for this
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purpose, the General Partner shall be treated as owning all of the outstanding
Class A Units and all of the outstanding Original Limited Partnership Units in
addition to the actual number of Units which the General Partner holds. An
Additional Limited Partner (EXCEPT FOR HOLDERS OF SERIES A PREFERRED UNITS), at
the time of admission to the Partnership, may elect with the consent of the
General Partner to not receive special allocations of any gain or loss resulting
from such adjustments.
SECTION 6. LIQUIDATION PREFERENCE.
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(a) Payment of Liquidating Distributions. Subject to the rights of
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holders of Parity Preferred Units with respect to rights upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Partnership and
subject to Partnership Interests ranking senior to the Series A Preferred Units
with respect to rights upon any voluntary or involuntary liquidation,
dissolution or winding-up of the Partnership, the holders of Series A Preferred
Units shall be entitled to receive out of the assets of the Partnership legally
available for distribution or the proceeds thereof, after payment or provision
for debts and other liabilities of the Partnership, but before any payment or
distributions of the assets shall be made to holders of any class or series of
Partnership Interest that ranks junior to the Series A Preferred Units as to
rights upon liquidation, dissolution or winding-up of the Partnership, an amount
equal to the sum of (i) a liquidation preference equal to their positive Capital
Account balances, determined after taking into account all Capital Account
adjustments for the Partnership taxable year during which the liquidation occurs
(other than those made as a result of the liquidating distribution set forth in
this Section 6(a)), 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 A Preferred Stock and any Parity
Preferred Units as to rights upon
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liquidation, dissolution or winding-up of the Partnership, all payments of
liquidating distributions on the Series A Preferred Units and such Parity
Preferred Units shall be made so that the payments on the Series A Preferred
Units and such Parity Preferred Units shall in all cases bear to each other the
same ratio that the respective rights of the Series A Preferred Unit and such
other Parity Preferred Units (which shall not include any accumulation in
respect of unpaid distributions for prior distribution periods if such Parity
Preferred Units do not have cumulative distribution rights) upon liquidation,
dissolution or winding-up of the Partnership bear to each other.
(b) Notice. Written notice of any such voluntary or involuntary
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liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more that 60 days prior
to the payment date stated therein, to each record holder of the Series A
Preferred Units at the respective addresses of such holders as the same shall
appear on the transfer records of the Partnership.
(c) No Further Rights. After payment of the full amount of the
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liquidating distributions to which they are entitled, the holders of Series A
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership.
(d) Consolidation, Merger or Certain Other Transactions. The
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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 General Partner to, or the consolidation or merger or
other business combination of the Partnership with or into, any corporation,
trust or other entity (or of any corporation, trust or other entity with or into
the Partnership) shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Partnership.
SECTION 7. OPTIONAL REDEMPTION.
--------------------
(a) Right of Optional Redemption. The Series A Preferred Units may
----------------------------
not be redeemed prior to the fifth anniversary of the issuance date. On or after
such date, the Partnership shall have the right to redeem the Series A Preferred
Units, 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 the Capital Account balance of the holder of Series A Preferred
Units (the "REDEMPTION PRICE"); provided, however, that no redemption pursuant
----------------
to this SECTION 7 will be permitted if the Redemption Price does not equal or
exceed the original Capital Contribution of such holder plus the cumulative
Priority Return, whether or not declared, to the redemption date to the extent
not previously distributed or distributed on the redemption date pursuant to
Section 4(a). If fewer than all of the outstanding Series A Preferred Units are
to be redeemed, the Series A Preferred Units to be redeemed shall be selected
pro rata (as nearly as practicable without creating fractional units).
(b) Limitation on Redemption.
------------------------
(i) The Redemption Price of the Series A Preferred Units (other
than the portion thereof consisting of accumulated but unpaid distributions)
will be payable solely out of the sale proceeds of capital stock of the General
Partner, which will be contributed by the General Partner to the Partnership as
additional capital contribution, or out of the sale of limited partner interests
in the Partnership and from no other source. For purposes of the preceding
sentence, "capital stock" means any equity securities (including Common Stock
and Preferred Stock (as such terms are defined in the
10
Charter)), shares, participation or other ownership interests (however
designated) and any rights (other than debt securities convertible into or
exchangeable for equity securities) or options to purchase any of the foregoing.
(ii) The Partnership may not redeem fewer than all of the
outstanding Series A Preferred Units unless all accumulated and unpaid
distributions have been paid on all Series A Preferred Units for all quarterly
distribution periods terminating on or prior to the date of redemption.
(c) Procedures for Redemption.
-------------------------
(i) Notice of redemption will be (i) faxed, and (ii) mailed by
the Partnership, by certified mail, postage prepaid, not less than 30 nor more
than 60 days prior to the redemption date, addressed to the respective holders
of record of the Series A Preferred Units at their respective addresses as they
appear on the records of the Partnership. No failure to give or defect in such
notice shall affect the validity of the proceedings for the redemption of any
Series A Preferred Units except as to the holder to whom such notice was
defective or not given. In addition to any information required by law, each
such notice shall state: (i) the redemption date, (ii) the Redemption Price,
(iii) the aggregate number of Series A Preferred Units to be redeemed and if
fewer than all of the outstanding Series A Preferred Units are to be redeemed,
the number of Series A Preferred Units to be redeemed held by such holder, which
number shall equal such holder's pro rata share (based on the percentage of the
aggregate number of outstanding Series A Preferred Units the total number of
Series A Preferred Units held by such holder represents) of the aggregate number
of Series A Preferred Units to be redeemed, (iv) the place or places where such
Series A Preferred Units are to be surrendered for payment of the Redemption
Price, (v) that distributions on the Series A Preferred Units to be redeemed
will cease to accumulate on such redemption date and (vi) that payment of the
Redemption Price will be made upon presentation and surrender of such Series A
Preferred Units.
(ii) If the Partnership gives a notice of redemption in respect
of Series A Preferred Units (which notice will be irrevocable) then, by 12:00
noon, New York City time, on the redemption date, the Partnership will deposit
irrevocably in trust for the benefit of the Series A Preferred Units being
redeemed funds sufficient to pay the applicable Redemption Price and will give
irrevocable instructions and authority to pay such Redemption Price to the
holders of the Series A Preferred Units upon surrender of the Series A Preferred
Units by such holders at the place designated in the notice of redemption. If
the Series A Preferred Units are evidenced by a certificate and if fewer than
all Series A Preferred Units evidenced by any certificate are being redeemed, a
new certificate shall be issued upon surrender of the certificate evidencing all
Series A Preferred Units, evidencing the unredeemed Series A Preferred Units
without cost to the holder thereof. On and after the date of redemption,
distributions will cease to accumulate on the Series A Preferred Units or
portions thereof called for redemption, unless the Partnership defaults in the
payment thereof. If any date fixed for redemption of Series A Preferred Units 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
is improperly withheld or refused and not paid by the Partnership, distributions
on such Series A Preferred Units will continue to accumulate from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
applicable Redemption Price.
11
SECTION 8. VOTING RIGHTS.
-------------
(a) General. Holders of the Series A Preferred Units will not have
-------
any voting rights or right to consent to any matter requiring the consent or
approval of the Limited Partners, except as otherwise expressly set forth in the
Partnership Agreement and except as set forth below.
(b) Certain Voting Rights. So long as any Series A Preferred Units
---------------------
remain outstanding, the Partnership shall not, without the affirmative vote of
the holders of at least two-thirds of the Series A Preferred Units outstanding
at the time (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Partnership Interests ranking prior to the Series A
Preferred Units with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any Partnership Interests
of the Partnership into any such Partnership Interest, or create, authorize or
issue any obligations or security convertible into or evidencing the right to
purchase any such Partnership Interests, (ii) authorize or create, or increase
the authorized or issued amount of any Parity Preferred Units or reclassify any
Partnership Interest of the Partnership into any such Partnership Interest or
create, authorize or issue any obligations or security convertible into or
evidencing the right to purchase any such Partnership Interests but only to the
extent such Parity Preferred Units are issued to an affiliate of the
Partnership, other than (A) Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates or (B) the General Partner to the extent the
issuance of such interests was to allow the General Partner to issue
corresponding preferred stock to persons who are not affiliates of the
Partnership or (iii) either (A) consolidate, merge into or with, or convey,
transfer or lease its assets substantially as an entirety to, any corporation or
other entity or (B) amend, alter or repeal the provisions of the Partnership
Agreement, whether by merger, consolidation or otherwise, that would materially
and adversely affect the powers, special rights, preferences, privileges or
voting power of the Series A Preferred Units 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 Partnership's assets as an entirety, so long as (a)
the Partnership is the surviving entity and the Series A Preferred Units remain
outstanding with the terms thereof unchanged, or (b) the resulting, surviving or
transferee entity is a partnership, limited liability company or other pass-
through entity organized under the laws of any state and substitutes the Series
A Preferred Units for other interests in such entity having substantially the
same terms and rights as the Series A Preferred Units, including with respect to
distributions, voting rights and rights upon liquidation, dissolution or
winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series A Preferred Units and no vote of the Series A Preferred
Units shall be required in such case; and provided further that any increase in
the amount of Partnership Interests or the creation or issuance of any other
class or series of Partnership Interests, in each case ranking (a) junior to the
Series A Preferred Units with respect to payment of distributions and the
distribution of assets upon liquidation, dissolution or winding-up, or (b) on a
parity to the Series A Preferred Units with respect to payment of distributions
and the distribution of assets upon liquidation, dissolution or winding-up to
the extent such Partnership Interest are not issued to an affiliate of the
Partnership, other than the General Partner to the extent the issuance of such
interests was to allow the General Partner to issue corresponding preferred
stock to persons who are not affiliates of the Partnership, shall not be deemed
to materially and adversely affect such rights, preferences, privileges or
voting powers and no vote of the Series A Preferred Units shall be required in
such case.
SECTION 9. TRANSFER RESTRICTIONS.
---------------------
(a) The Series A Preferred Units shall be subject to the provisions of
Article 11 of the Partnership Agreement.
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(b) No transfer of the Series A Preferred Units may be made without
the consent of the General Partner, which consent may be given or withheld in
its sole and absolute discretion, if such transfer would result in more than
four partners holding all outstanding Series A Preferred Units within the
meaning of Treasury Regulation Section 1.7704-1(h)(3).
SECTION 10. EXCHANGE RIGHTS.
---------------
(a) Right to Exchange.
-----------------
(i) Series A Preferred Units will be exchangeable in whole or in
part at anytime on or after the tenth anniversary of the date of issuance, at
the option of the holders thereof, for authorized but previously unissued shares
of 8.125% Series A Cumulative Redeemable Preferred Stock of the General Partner
(the "SERIES A PREFERRED STOCK") at an exchange rate of one share of Series A
------------------------
Preferred Stock for one Series A Preferred Unit, subject to adjustment as
described below (the "EXCHANGE PRICE"), provided that the Series A Preferred
--------------
Units will become exchangeable at any time, in whole or in part, at the option
of the holders of Series A Preferred Units for Series A Preferred Stock if (y)
at any time full distributions shall not have been timely made on any Series A
Preferred Unit with respect to six (6) prior quarterly distribution periods,
whether or not consecutive, provided, however, that a distribution in respect of
Series A Preferred Units shall be considered timely made if made within two (2)
Business Days after the applicable Preferred Unit Distribution Payment Date if
at the time of such late payment there shall not be any prior quarterly
distribution periods in respect of which full distributions were not timely made
or (z) upon receipt by a holder or holders of Series A Preferred Units of (A)
notice from the General Partner that the General Partner or a Subsidiary of the
General Partner has taken the position that the Partnership is, or upon the
occurrence of a defined event in the immediate future will be, a PTP and (B) an
opinion rendered by an outside nationally recognized independent counsel
familiar with such matters addressed to a holder or holders of Series A
Preferred Units, that the Partnership is or likely is, or upon the occurrence of
a defined event in the immediate future will be or likely will be, a PTP. In
addition, the Series A Preferred Units may be exchanged for Series A Preferred
Stock, in whole or in part, at the option of any holder prior to the tenth
anniversary of the issuance date and after the third anniversary thereof if such
holder of a Series A Preferred Units shall deliver to the General Partner either
(i) a private ruling letter addressed to such holder of Series A Preferred Units
or (ii) an opinion of independent counsel reasonably acceptable to the General
Partner based on the enactment of temporary or final Treasury Regulations or the
publication of a Revenue Ruling, in either case to the effect that an exchange
of the Series A Preferred Units at such earlier time would not cause the Series
A Preferred Units to be considered "stock and securities" within the meaning of
section 351(e) of the Internal Revenue Code of 1986, as amended (the "CODE") for
----
purposes of determining whether the holder of such Series A Preferred Units is
an "investment company" under section 721(b) of the Code if an exchange is
permitted at such earlier date. Furthermore, the Series A Preferred Units may be
exchanged in whole or in part for Series A Preferred Shares at any time after
the date hereof, if both (1) the holder thereof concludes based on results or
projected results that there exists (in the reasonable judgement of the holder)
an imminent and substantial risk that the holder's interest in the Partnership
does or will represent more than 19.5% of the total profits or capital interests
in the Partnership (determined in accordance with Treasury Regulations Section
1.731-2(e)(4)) for a taxable year, and (2) the holder delivers to the General
Partner an opinion of nationally recognized independent counsel to the effect
that there is an imminent and substantial risk that the holder's interest in the
Partnership does or will represent more than 19.5% of the total profits or
capital interests in the Partnership (determined in accordance with Treasury
Regulations Section 1.731-2(e)(4)) for a taxable year.
13
(ii) Notwithstanding anything to the contrary set forth in
SECTION 10(A)(I), if an Exchange Notice (as defined herein) has been delivered
to the General Partner, then the General Partner may, at its option, elect to
redeem or cause the Partnership to redeem all or a portion of the outstanding
Series A Preferred Units for cash in an amount equal to the original Capital
Contribution per Series A Preferred Unit and all accrued and unpaid
distributions thereon to the date of redemption. The General Partner may
exercise its option to redeem the Series A Preferred Units for cash pursuant to
this SECTION 10(A)(II) by giving each holder of record of Series A Preferred
Units notice of its election to redeem for cash, within five (5) Business Days
after receipt of the Exchange Notice, by (i) fax, and (ii) registered mail,
postage paid, at the address of each holder as it may appear on the records of
the Partnership stating (i) the redemption date, which shall be no later than
sixty (60) days following the receipt of the Exchange Notice, (ii) the
redemption price, (iii) the place or places where the Series A Preferred Units
are to be surrendered for payment of the redemption price, (iv) that
distributions on the Series A Preferred Units will cease to accrue on such
redemption date; (v) that payment of the redemption price will be made upon
presentation and surrender of the Series A Preferred Units and (vi) the
aggregate number of Series A Preferred Units to be redeemed, and if fewer than
all of the outstanding Series A Preferred Units are to be redeemed, the number
of Series A Preferred Units to be redeemed held by such holder, which number
shall equal such holder's pro-rata share (based on the percentage of the
aggregate number of outstanding Series A Preferred Units the total number of
Series A Preferred Units held by such holder represents) of the aggregate number
of Series A Preferred Units being redeemed.
(iii) Upon the occurrence of an event giving rise to exchange
rights pursuant to Section 10(a)(i), in the event an exchange of all or a
portion of Series A Preferred Units pursuant to SECTION 10(A)(I) would violate
the provisions on ownership limitation of the General Partner set forth in
Article 5 of the Charter, the General Partner shall give written notice thereof
to each holder of record of Series A Preferred Units, within five (5) Business
Days following receipt of the Exchange Notice, by (i) fax, and (ii) registered
mail, postage prepaid, at the address of each such holder set forth in the
records of the Partnership. In such event, each holder of Series A Preferred
Units shall be entitled to exchange, pursuant to the provision of SECTION 10(B)
a number of Series A Preferred Units which would comply with the provisions on
the ownership limitation of the General Partner set forth in such Article 5 of
the Charter and any Series A Preferred Units not so exchanged (the "EXCESS
------
UNITS") shall be redeemed by the Partnership for cash in an amount equal to the
original Capital Contribution per Excess Unit, plus any accrued and unpaid
distributions thereon, whether or not declared, to the date of redemption. The
written notice of the General Partner shall state (i) the number of Excess Units
held by such holder, (ii) the redemption price of the Excess Units, (iii) the
date on which such Excess Units shall be redeemed, which date shall be no later
than sixty (60) days following the receipt of the Exchange Notice, (iv) the
place or places where such Excess Units are to be surrendered for payment of the
Redemption Price, (iv) that distributions on the Excess Units will cease to
accrue on such redemption date, and (v) that payment of the redemption price
will be made upon presentation and surrender of such Excess Units. In the event
an exchange would result in Excess Units, as a condition to such exchange, each
holder of such units agrees to provide representations and covenants reasonably
requested by the General Partner relating to (i) the widely held nature of the
interests in such holder, sufficient to assure the General Partner that the
holder's ownership of stock of the General Partner (without regard to the limits
described above) will not cause any individual to own in excess of 9.8% of the
stock of the General Partner; and (ii) to the extent such holder can so
represent and covenant without obtaining information from its owners, the
holder's ownership of tenants of the Partnership and its affiliates.
(iv) The redemption of Series A Preferred Units described in
SECTION 10(A)(II) and (III) shall be subject to the provisions of SECTION
7(B)(I) and SECTION 7(C)(II); provided, however, that
14
for purposes hereof the term "Redemption Price" in Sections 7(b)(i) and 7(c)(ii)
shall be read to mean the original Capital Contribution per Series A Preferred
Unit being redeemed plus all accrued and unpaid distributions to the redemption
date.
(b) Procedure for Exchange.
----------------------
(i) Any exchange shall be exercised pursuant to a notice of
exchange (the "EXCHANGE NOTICE") delivered to the General Partner by the holder
---------------
who is exercising such exchange right, by (i) fax and (ii) by certified mail
postage prepaid. Upon request of the General Partner, such holder delivering the
Exchange Notice shall provide to the General Partner in writing such information
as the General Partner may reasonably request to determine whether any portion
of the exchange by the delivering holder will result in the violation of the
restrictions of Article 5 of the Charter, including the Ownership Limit and the
Related Tenant Limit. The exchange of Series A Preferred Units, or a specified
portion thereof, may be effected after the fifth (5/th/) Business Days following
receipt by the General Partner of the Exchange Notice and such requested
information by delivering certificates, if any, representing such Series A
Preferred Units to be exchanged together with, if applicable, written notice of
exchange and a proper assignment of such Series A Preferred Units to the office
of the General Partner maintained for such purpose. Currently, such office is
121 West Forsyth Street, Suite 200, Jacksonville, Florida 32202. Each exchange
will be deemed to have been effected immediately prior to the close of business
on the date on which such Series A Preferred Units to be exchanged (together
with all required documentation) shall have been surrendered and notice shall
have been received by the General Partner as aforesaid and the Exchange Price
shall have been paid. Any Series A Preferred Shares issued pursuant to this
SECTION 10 shall be delivered as shares which are duly authorized, validly
issued, fully paid and nonassessable, free of pledge, lien, encumbrance or
restriction other than those provided in the Charter, the Bylaws of the General
Partner, the Securities Act and relevant state securities or blue sky laws.
(ii) In the event of an exchange of Series A Preferred Units
for shares of Series A Preferred Stock, an amount equal to the accrued and
unpaid distributions which are not paid pursuant to Section 4(a) hereof, whether
or not declared, to the date of exchange on any Series A Preferred Units
tendered for exchange shall (i) accrue and be payable by the General Partner
from and after the date of exchange on the shares of the Series A Preferred
Stock into which such Series A Preferred Units are exchanged, and (ii) continue
to accrue on such Series A Preferred Units, which shall remain outstanding
following such exchange, with the General Partner as the holder of such Series A
Preferred Units. Notwithstanding anything to the contrary set forth herein, in
no event shall a holder of a Series A Preferred Unit that was validly exchanged
into Series A Preferred Stock pursuant to this section (other than the General
Partner now holding such Series A Preferred Unit), receive a distribution out of
Available Cash or Capital Transaction Proceeds of the Partnership with respect
to any Series A Preferred Units so exchanged.
(iii) Fractional shares of Series A Preferred Stock are not to
be issued upon exchange but, in lieu thereof, the General Partner will pay a
cash adjustment based upon the fair market value of the Series A Preferred Stock
on the day prior to the exchange date as determined in good faith by the Board
of Directors of the General Partner.
(c) Adjustment of Exchange Price.
----------------------------
(i) The Exchange Price is subject to adjustment upon certain
events, including, (i) subdivisions, combinations and reclassification of the
Series A Preferred Stock, and (ii)
15
distributions to all holders of Series A Preferred Stock of evidences of
indebtedness of the General Partner or assets (including securities, but
excluding dividends and distributions paid in cash out of equity applicable to
Series A Preferred Stock).
(ii) In case the General Partner shall be a party to any
transaction (including, without limitation, a merger, consolidation, statutory
share exchange, tender offer for all or substantially all of the General
Partner's capital stock or sale of all or substantially all of the General
Partner's assets), in each case as a result of which the Series A Preferred
Stock will be converted into the right to receive shares of capital stock, other
securities or other property (including cash or any combination thereof), each
Series A Preferred Unit will thereafter be exchangeable into the kind and amount
of shares of capital stock and other securities and property receivable
(including cash or any combination thereof) upon the consummation of such
transaction by a holder of that number of shares of Series A Preferred Stock or
fraction thereof into which one Series A Preferred Unit was exchangeable
immediately prior to such transaction. The General Partner may not become a
party to any such transaction unless the terms thereof are consistent with the
foregoing.
SECTION 11. NO CONVERSION RIGHTS. The holders of the Series A
--------------------
Preferred Units 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 Partnership.
SECTION 12. NO SINKING FUND. No sinking fund shall be established
---------------
for the retirement or redemption of Series A Preferred Units.
SECTION 13. PTP OBLIGATIONS. Notwithstanding anything contained in
---------------
the Partnership Agreement to the contrary, prior to January 1, 1999, no transfer
(or purported transfer) by a Limited Partner of his Partnership Units (or any
economic or other interest, right or attribute therein) may be made to any
Person, and any such transfer (or purported transfer) shall be void ab initio,
-- ------
and no Person shall otherwise become a Partner if (a) legal counsel to the
Partnership renders an opinion letter that such transfer creates a substantial
risk that the Partnership would be treated as a PTP within the meaning of
Section 7704 of the Code or (b) such transfer would cause the Partnership to
have more than 100 Partners within the meaning of Treasury Regulation Section
1.7704-1(h)(3) immediately after such transfer.
SECTION 14. MISCELLANEOUS.
-------------
(a) The last sentence of Page 1 of the Partnership Agreement is
inapplicable to the Series A Preferred Units.
(b) The terms "Original Limited Partnership Units," "Class A Units,"
"Class B Units" and "Class 2 Units" in the Partnership Agreement shall not be
deemed to include the Series A Preferred Units. The terms "Limited Partnership
Interest", "Partnership Interest" and "Percentage Interest" shall be deemed to
include the Series A Preferred Units.
(c) Exhibit A to the Partnership Agreement is hereby amended to (i)
include the Series A Preferred Units as Limited Partnership Interests and (ii)
adjust the Percentage Interests specified in Exhibit A proportionately to
reflect the issuance of the Series A Preferred Units.
16
(d) Section 7.1(h) of the Partnership Agreement is hereby amended to
include the Priority Return amount.
(e) Nothing contained in Section 8.4 or the last sentence of Section
13.6 of the Partnership Agreement shall be deemed to limit the issuance of, and
provisions applicable to, the Series A Preferred Units.
(f) Notwithstanding anything to the contrary contained in Section 8.6
of the Partnership Agreement, in no event shall the rights of the holders of the
Series A Preferred Units set forth in Section 10 of this Amendment be
subordinate to the Redemption Rights set forth in Section 8.6 of the Partnership
Agreement.
17
GENERAL PARTNER
Regency Realty Corporation
By: /s/ Bruce M. Johnson
---------------------------------------
Bruce M. Johnson
Its: Managing Director and Executive Vice
President
Signature Page Partnership Agreement Amendment
18
BELAIR CAPITAL FUND LLC
By: Eaton Vance Management, as it Manager
By: Thomas Otis
--------------------------
Name: Thomas Otis
Title: Vice President
Signature Page to Partnership Agreement Amendment
19
REGENCY CENTERS, L.P.
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP
RELATING TO 8.125% SERIES A CUMULATIVE REDEEMABLE PREFERRED UNITS
REGENCY REALTY CORPORATION, SECURITY CAPITAL U.S. REALTY
GENERAL PARTNER
By: /s/ Bruce M. Johnson By: /s/ Gerald R. Morgan, Jr.
------------------------------- -------------------------------
Bruce M. Johnson Gerald R. Morgan, Jr
Managing Director and Chief Senior Vice President
Financial Officer
SECURITY CAPITAL HOLDINGS S.A.
By: /s/ Gerald R. Morgan, Jr.
-------------------------------
Gerald R. Morgan, Jr.
Senior Vice President
20