EXHIBIT 10.35
ONE HUNDRED ELEVENTH AMENDMENT
TO THE
SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP
THIS ONE HUNDRED ELEVENTH AMENDMENT TO THE SECOND AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT OF SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP
(this "AMENDMENT") is entered into as of May 1, 2000, by and between SUN
COMMUNITIES, INC., a Maryland corporation (the "GENERAL PARTNER"), as the
general partner of SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP, a Michigan
limited partnership (the "PARTNERSHIP"), and FOUR SEASONS MOBILE HOME PARK, an
Indiana partnership (the "SERIES B PREFERRED Partner").
RECITALS
A. The Series B Preferred Partner and the Partnership are parties to that
certain Contribution Agreement dated February 2, 2000 (the "Contribution
Agreement"), pursuant to which the Series B Preferred Partner has agreed to
contribute to the Partnership the Project (as defined in the Contribution
Agreement) in consideration for the issuance by the Partnership of Series B
Preferred Units (as hereinafter defined).
B. The signatories hereto desire to amend that certain Second Amended and
Restated Limited Partnership Agreement of Sun Communities Operating Limited
Partnership, dated as of April 30, 1996, as amended by those certain amendments
numbered one through one hundred ten (collectively, as amended, the "AGREEMENT")
as set forth herein; any capitalized term not defined herein shall have the
respective meaning ascribed to it in the Agreement.
C. Section 11 of the Agreement authorizes the General Partner, as the
holder of more than fifty percent (50%) of the OP Units, to amend the Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
set forth herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree to continue the Partnership and amend the Agreement as
follows:
1. Admission of New Partners. As of the date hereof, the Series B
Preferred Partner has contributed the Project, with a net agreed upon value of
$3,563,700, to the Partnership in exchange for the issuance to the Series B
Preferred Partner of 35,637 Series B Preferred Units. The Series B Preferred
Units issued to the Series B Preferred Partner have been duly issued and fully
paid. The Series B Preferred Partner is hereby admitted to the Partnership,
effective as of May 1, 2000 as a new Limited Partner, and by execution of this
Amendment the Series B Preferred Partner has agreed to be bound by all of the
terms and conditions of the Agreement, as
amended hereby, and hereby acknowledges receipt of a copy of the Agreement.
Exhibit A of the Agreement is hereby deleted in its entirety and is replaced
with EXHIBIT A to this Amendment.
2. Sections 3.1 and 3.2. Sections 3.1 and 3.2 of the Agreement are hereby
deleted in their entirety and replaced with the following:
"3.1 OP UNITS
The Partners' interests in the Partnership are expressed in terms of
OP Units and each Partner has been issued OP Units corresponding to the
agreed value of its capital contribution. OP Units consist of Common OP
Units, Preferred OP Units, Series A Preferred Units and Series B Preferred
Units.
3.2 COMMON OP UNITS
The holders of the Common OP Units shall be entitled to receive
distributions in accordance with Section 4.3, after payment of all accrued
(i) Preferred Dividends, (ii) Series A Priority Return and (iii) Series B
Priority Return. No distribution shall be made in respect of Common OP
Units while any accrued (i) Preferred Dividends, (ii) Series A Priority
Return, or (iii) Series B Priority Return remains unpaid unless all such
unpaid amounts are paid simultaneously with such distribution."
3. Section 3.9. Section 3.9 of the Agreement is hereby deleted in its
entirety and replaced with the following:
"3.9 WITHDRAWALS
No Partner shall be entitled to withdraw any portion of its capital
account, except by way of distribution pursuant to Sections 4.3, 8.2,16
and 17 hereof."
4. Section 4.2 (a)(v) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(v) fifth, with respect to OP Units other than Series A Preferred
Units, pro rata in proportion to the number of OP Units other than Series
A Preferred Units, held by each such Partner as of the last day of the
period for which such allocation is being made; provided, however, that
the profits allocated to any Preferred OP Units and Series B Preferred
Units pursuant to this Section 4.2(b)(v) for any calendar year shall not
exceed the amount of Preferred Dividends and Series B Priority Return,
respectively, thereon for that calendar year, and any such excess profits
remaining after the application of such limitation shall be allocated to
the holders of the Common OP Units, pro rata."
5. Section 8.2(a) of the Agreement is hereby deleted in its entirety and
replaced with the following:
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"8.2 LIQUIDATING DISTRIBUTIONS; RESTORATION OF CAPITAL ACCOUNT DEFICITS
Upon the liquidation of the Partnership or any Partner's interest in
the Partnership, within the meaning of the Allocation Regulations:
(a) The capital accounts of the holders of the OP Units shall
be adjusted to reflect the manner in which any unrealized income, gain,
loss and deduction inherent in the Partnership's property, which has not
previously been reflected in the Partners' capital accounts, would be
allocated among the Partners if there were a taxable disposition of such
property at fair market value on the date of distribution. Any resulting
increase in the Partners' capital accounts shall be allocated (i) first to
the holders of the Preferred OP Units and Series A Preferred Units in
proportions and amounts sufficient to bring their respective capital
account balances up to the amount of the Issue Prices of their respective
Preferred OP Units and Series A Preferred Units plus accrued and unpaid
Preferred Dividends or Series A Priority Return, as the case may be,
thereon, (ii) second to the holders of the Series B Preferred Units in
proportions and amounts sufficient to bring their respective capital
account balances up to the amount of the Issue Price of the Series B
Preferred Units plus accrued and unpaid Series B Priority Return thereon,
and (iii) third (if any) to the Common OP Units. Any resulting decrease in
the Partners' capital accounts shall first be allocated (i) first to the
holders of the Common OP Units in proportions and amounts sufficient to
reduce their respective capital account balances to zero, (ii) second to
the holders of Series B Preferred Units in proportions and amounts
sufficient to reduce their respective capital account balances to zero,
(iii) third to the holders of the Preferred OP Units and Series A
Preferred Units in proportions and amounts sufficient to reduce their
respective capital account balances to zero, and (iv) (if any) to the
General Partner. Liquidating distributions shall be made in accordance
with the positive capital account balances of the Partners, after giving
effect to such adjustment and other capital account adjustments for the
current year, as provided in the Allocation Regulations.
6. Section 14. Section 14 of the Agreement is hereby amended as follows:
(a) The second sentence of the definition of "OP UNITS" is hereby
deleted in its entirety and replaced with the following: "OP Units consist
of Common OP Units, Preferred OP Units, Series A Preferred Units and
Series B Preferred Units."
(c) The following new definitions are inserted in Section 14
(Definitions) so as to preserve alphabetical order:
"FIRST 24 MONTH PERIOD" shall mean the period commencing on
May 1, 2000 and ending on and including April 30, 2002.
"FIRST 12 MONTH PERIOD" shall mean the period commencing on
and including May 1, 2004 and ending on and including April 30,
2005.
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"SECOND 24 MONTH PERIOD" shall mean the period commencing on
and including May 1, 2002 and ending on and including April 30,
2004.
"SECOND 12 MONTH PERIOD" shall mean the period commencing on
and including May 1, 2005 and ending on and including April 30,
2006.
"SERIES B DEFAULT" shall have the meaning set forth therefor
in Section 17.5(c) hereof.
"SERIES B ISSUANCE DATE" shall mean May 1, 2000.
"SERIES B JUNIOR UNITS" shall have the meaning set forth
therefor in Section 17.3(c) hereof.
"SERIES B PARITY PREFERRED UNITS" shall have the meaning set
forth therefor in Section 17.1 hereof.
"SERIES B PREFERRED PARTNER" means Four Seasons Mobile Home
Park, an Indiana partnership, and its successors and permitted
assigns.
"SERIES B PREFERRED UNIT DISTRIBUTION PAYMENT DATE" shall have
the meaning set forth therefor in Section 17.3(a) hereof.
"SERIES B PREFERRED UNITS" shall have the meaning set forth
therefor in Section 17.2 hereof.
"SERIES B PRIORITY RETURN" shall have the meaning set forth
therefor in Section 17.1 hereof.
"SERIES B REDEMPTION PRICE" shall mean $100 per Series B
Preferred Unit redeemed.
7. Section 17. The following new Section 17 is inserted in the Agreement
after Section 16 thereof:
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"17. SERIES B PREFERRED UNITS.
SECTION 17.1 DEFINITIONS. The term "SERIES B PARITY PREFERRED UNITS"
shall mean any class or series of OP Units of the Partnership now or
hereafter authorized, issued or outstanding and expressly designated by
the Partnership to rank on parity with the Series B Preferred Units with
respect to distributions and rights upon voluntary or involuntary
liquidation, winding-up or dissolution of the Partnership. The term
"SERIES B PRIORITY RETURN" shall mean an amount equal to (i) 7.0% per
annum for the First 24 Month Period, (ii) 7.5% per annum for the Second 24
Month Period, (iii) 8.0% per annum for the First 12 Month Period, and (iv)
9.0% per annum for the Second 12 Month Period (determined on the basis of
a 365 day year), of the stated amount of $100.00 per Series B Preferred
Unit multiplied by the number of outstanding Series B Preferred Units,
cumulative to the extent not distributed for any given distribution period
pursuant to Section 4.3 hereof.
SECTION 17.2 DESIGNATION AND NUMBER. A series of OP Units in the
Partnership designated as the "Series B Cumulative Preferred Units" (the
"SERIES B PREFERRED UNITS") is hereby established. The number of Series B
Preferred Units shall be 35,637.
SECTION 17.3 DISTRIBUTIONS.
(a) Payment of Distributions.
(i) Subject to the rights of holders of Series A
Preferred Units, Parity Preferred Units, Preferred OP Units
and Series B Parity Preferred Units as to the payment of
distributions pursuant to Sections 4.3, 8.2 and 16.3 of the
Agreement, holders of Series B Preferred Units shall be
entitled to receive, when, as and if declared by the
Partnership acting through the General Partner, out of the
Partnership's available cash, the Series B Priority Return.
(ii) All 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) in arrears, on April 30, June 30,
September 30 and December 31 of each year, commencing on June
30, 2000 (with the first such payment to include the amount
accrued from the period commencing on the date hereof through
and including June 30, 2000) and (ii) in the event of a
redemption of Series B Preferred Units, on the redemption date
(each a "SERIES B PREFERRED UNIT DISTRIBUTION PAYMENT DATE").
The amount of the distribution payable for any period will be
computed on the basis of a 365-day year and for any period
shorter than a full quarterly period for which distributions
are computed, the amount of the distribution payable will be
computed based on the ratio of
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the actual number of days elapsed in such period to the actual
number of days in such quarterly period. If any date on which
distributions are to be made on the Series B Preferred Units
is not a Business Day (as defined in SECTION 14), 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 Units will be made to the holders of record of the
Series B Preferred Units on the relevant record dates to be
fixed by the Partnership acting through the General Partner,
which record dates shall in no event exceed fifteen (15)
Business Days prior to the relevant Series B Preferred Unit
Distribution Payment Date.
(b) Distributions Cumulative. Distributions on the Series B
Preferred 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 declaration,
setting aside for payment or 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 B Preferred Units
will accumulate as of the Series B 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 Series B
Preferred Unit Distribution Payment Date to holders of record of the
Series B Preferred Units on the record date fixed by the Partnership
acting through the General Partner 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 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 OP Units of the
Partnership ranking junior as to the payment of distributions
or rights upon a voluntary or involuntary liquidation,
dissolution or winding-up of the Partnership to the Series B
Preferred Units (collectively, "SERIES B JUNIOR UNITS"), 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 Units, any Series B
Parity Preferred Units or any Series B Junior Units, unless,
in each case, all distributions accumulated on all Series B
Preferred Units and all classes and series of outstanding
Series B Parity Preferred Units have been paid in
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full. The foregoing sentence will not prohibit (a)
distributions payable solely in OP Units ranking junior to the
Series B Preferred Units as to the payment of distributions
and rights upon a voluntary or involuntary liquidation,
dissolution or winding-up of the Partnership, (b) the
conversion of Series B Junior Units or Series B Parity
Preferred Units into OP Units of the Partnership ranking
junior to the Series B Preferred Units as to distributions and
rights upon a voluntary or involuntary liquidation,
dissolution or winding-up of the Partnership, or (c) the
redemption of OP Units corresponding to any Junior Stock (as
defined in the Series A Articles Supplementary) to be
purchased by the General Partner pursuant to Article VII of
the Charter to preserve the General Partner's status as a real
estate investment trust, provided that such redemption shall
be upon the same terms as the corresponding purchase pursuant
to Article VII 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 immediate payment) upon the Series B
Preferred Units, all distributions authorized and declared on
the Series B Preferred Units and all classes or series of
outstanding Series B Parity Preferred Units shall be
authorized and declared so that the amount of distributions
authorized and declared per Series B Preferred Unit and such
other classes or series of Series B Parity Preferred Units
shall in all cases bear to each other the same ratio that
accrued distributions per Series B Preferred Unit and such
other classes or series of Series B Parity Preferred Units
(which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or
series of Series B Parity Preferred Units do not have
cumulative distribution rights) bear to each other.
(iii) The Series B Preferred Units and any Series B
Parity Preferred Units shall be deemed to be "Junior Units" as
defined in Section 16.3(c) hereof, and so long as any Series A
Preferred Units or Parity 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
the Series B Preferred Units or any Series B Parity Preferred
Units, 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 Units or Series B
Parity Preferred Units unless, in each case, all distributions
accumulated on all Series A Preferred Units and all classes
and series of outstanding Parity Preferred Units have been
paid in full.
(d) Distributions on OP Units held by General Partner.
Notwithstanding anything to the contrary herein, distributions on OP
Units held by the General Partner may be made, without preserving
the priority of
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distributions described in Section 17.3(c)(i) and (ii), but only to
the extent such distributions are required to preserve the real
estate investment trust status of the General Partner.
(e) No Further Rights. Holders of Series B Preferred Units
shall not be entitled to any distributions, whether payable in cash,
other property or otherwise, in excess of the full cumulative
distributions described herein.
SECTION 17.4 LIQUIDATION PROCEEDS.
(a) Notice. Written notice of any voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, stating
the payment date or dates when, and the place or places where, the
amounts distributable in such circumstances shall be payable, shall
be given by (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 Units at the respective addresses of such holders as the
same shall appear on the transfer records of the Partnership.
(b) No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled pursuant to
Section 8.2 hereof, the holders of Series B Preferred Units will
have no right or claim to any of the remaining assets of the
Partnership.
(c) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the General Partner
to, or the consolidation or merger or other business combination of
the Partnership with or into, any corporation, trust, partnership,
limited liability company or other entity (or of any corporation,
trust, partnership, limited liability company or other entity with
or into the Partnership) shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Partnership.
SECTION 17.5 REDEMPTION.
(a) Mandatory Redemption. Subject to the limitations in this
Section 17.5, the holders of Series B Preferred Units may request
redemption of, and the Partnership shall redeem, for cash, Series B
Preferred Units on the following terms and subject to the following
conditions:
(i) On May 1, 2003 the holders of Series B Preferred
Units may require that the Partnership redeem an aggregate of
10,000 Series B Preferred Units upon not less than sixty (60)
days prior written notice, at the Series B Redemption Price.
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(ii) On May 1, 2004 and May 1, 2005 the holders of
Series B Preferred Units may require that the Partnership
redeem all outstanding Series B Preferred Units upon not less
than sixty (60) days prior written notice at the Series B
Redemption Price.
(iii) On May 1, 2006, the Partnership shall redeem all
outstanding Series B Preferred Units at the Series B
Redemption Price.
(b) Redemption in the Event of a Series B Default. The
Partnership shall redeem, for cash, all outstanding Series B
Preferred Units at the Series B Redemption Price in the event the
Partnership fails to declare and pay on any Series B Preferred Unit
Distribution Payment Date the Series B Priority Return for any
reason including the failure to declare a distribution of the Series
B Priority Retrun (a "SERIES B DEFAULT"). Such redemption shall
occur fifteen (15) days after written demand of the holders of
Series B Preferred Units is received by the Partnership, provided
such notice is received by the Partnership no later than thirty (30)
days after the Series B Preferred Unit Distribution Payment Date
that is the subject of the Series B Default. Failure of the holders
of Series B Preferred Units to timely give such notice shall
terminate the right of the holders of Series B Preferred Units under
this Section 17.5(b) to demand redemption with respect to the Series
B Default to which such notice relates, but shall not effect the
rights of the holders of Series B Preferred Units under this Section
17.5(b) for any subsequent Series B Default.
(c) Limitations on Redemption. Any redemption pursuant to this
Section 17.5 is subject to and limited by the provisions of Section
16.3(c)(i) hereof.
(d) Procedures for Redemption.
(i) Notice of redemption will be (A) faxed and (B)
mailed by the holders of Series B Preferred Units, by
certified mail, postage prepaid, to the Partnership so that
notice is received by the Partnership within the periods set
forth herein and in accordance with the provisions hereof.
Each such notice shall: (1) state the aggregate number of
Series B Preferred Units to be redeemed and if fewer than all
of the outstanding Series B Preferred Units are to be
redeemed, the number of Series B 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 B Preferred Units the
total number of Series B Preferred Units held by such holder
represents) of the aggregate number of Series B Preferred
Units to be redeemed and (2) refer to the specific subsection
of this Section 17.5 pursuant to which such redemption is
being effected. Any such notice shall be irrevocable.
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(ii) By 12:00 noon, New York City time, on the
redemption date, the Partnership will deposit irrevocably in
trust with Boston Equiserve, its transfer agent (or any
successor entity, provided such entity is a third party,
unrelated to the Company and the Partnership) for the benefit
of the Series B Preferred Units being redeemed funds
sufficient to pay the Series B Redemption Price and will give
irrevocable instructions to such transfer agent and authority
to pay such Series B Redemption Price to the holders of the
Series B Preferred Units upon surrender of the Series B
Preferred Units by such holders at the place designated by the
Partnership. If the Series B Preferred Units are evidenced by
a certificate and if fewer than all Series B Preferred Units
evidenced by any certificate are being redeemed, a new
certificate shall be issued upon surrender of the certificate
evidencing all Series B Preferred Units, evidencing the
unredeemed Series B Preferred Units without cost to the holder
thereof. On and after the date of redemption, distributions
will cease to accumulate on the Series B Preferred Units or
portions thereof called for redemption, unless the Partnership
defaults in the payment of the Series B Redemption Price. If
any date fixed for redemption of Series B Preferred Units is
not a Business Day, then payment of the Series B Redemption
Price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Series B
Redemption Price is improperly withheld or refused and not
paid by the Partnership, distributions on such Series B
Preferred 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 Series B Redemption
Price.
SECTION 17.6 VOTING RIGHTS. Holders of the Series B Preferred Units
will not have any voting rights or right to consent to any matter
requiring the consent or approval of the Limited Partners.
SECTION 17.7 TRANSFER RESTRICTIONS. The Series B Preferred Units
shall be subject to the provisions of SECTION 9 of the Agreement.
SECTION 17.8 CONVERSION AND EXCHANGE RIGHTS.
(a) General. The holders of Series B Preferred Units shall be
entitled to convert Series B Preferred Units into Common OP Units or
exchange Series B Preferred Units for shares of the General Partner's
common stock, at their option, on the following terms and subject to the
following conditions:
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(i) On May 1, 2002, the holders of Series B Preferred Units
may convert an aggregate of 10,000 Series B Preferred Units into
22,727 Common OP Units or exchange an aggregate of 10,000 Series B
Preferred Units for 22,727 shares of the General Partner's common
stock, or any combination thereof at conversion or exchange rate of
2.272727 Common OP Units or shares of the General Partner's common
stock, as the case may be, for each Series B Preferred Unit (rounded
to the lower whole number), at their option, provided the General
Partner has received at least sixty (60) days prior written notice
of such conversion or exchange, such notice to specify the number of
Common OP Units and number of shares of the General Partner's common
stock to which the Series B Preferred Units are to be converted or
exchanged.
(ii) On each of May 1, 2003, May 1, 2004, May 1, 2005 and May
1, 2006, the holders of Series B Preferred Units may convert all or
any portion (but not less than 10,000) Series B Preferred Units to
Common OP Units or exchange all or any portion (but not less than
10,000) Series B Preferred Units for shares of the General Partner's
common stock, at their option, at a conversion and exchange rate of
2.272727 Common OP Units or shares of the General Partner's common
stock, as the case may be, for each Series B Preferred Unit (rounded
to the lower whole number), provided the General Partner has
received at least sixty (60) days prior written notice of such
conversion or exchange, such notice to specify the number of Common
OP Units and number of shares of the General Partner's common stock
to which the Series B Preferred Units are to be converted or
exchanged.
(b) Procedure for Conversion or Exchange.
(i) Any conversion or exchange shall be exercised pursuant to
a notice of conversion or exchange (the "SERIES B
CONVERSION/EXCHANGE NOTICE") delivered to the General Partner by the
holder who is exercising such conversion or exchange right, by (A)
fax and (B) by certified mail postage prepaid. The Series B
Conversion/Exchange Notice and certificates, if any, representing
such Series B Preferred Units to be converted or exchanged shall be
delivered to the office of the General Partner maintained for such
purpose. Currently, such office is:
Sun Communities, Inc.
Suite 145
31700 Middlebelt Road
Farmington Hills, Michigan 48334.
Any conversion or exchange hereunder shall be effective as of the
close of business on the conversion or exchange date. The holders of
the converted or exchanged Series B Preferred Units shall be deemed
to have surrendered the same to the Partnership
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or the General Partner, as the case may be, and the Partnership or
the General Partner, as the case may be, shall be deemed to have
issued Common OP Units or shares of common stock of the General
Partner, as applicable, at the close of business on the conversion
or exchange date.
(c) Adjustment of Series B Conversion/Exchange Rate.
(i) The conversion/exchange rate is subject to adjustment upon
subdivisions, stock splits, stock dividends, combinations and
reclassification of the common stock of the General Partner.
(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 General Partner's common 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 B Preferred Unit will thereafter be
convertible or 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 the General
Partner's common stock or fraction thereof into which one Series B
Preferred Unit was convertible or exchangeable immediately prior to
such transaction
(d) Limitations on Conversion and Exchange. Notwithstanding Section
17.8(a):
(i) Upon tender of any Series B Preferred Units to the General
Partner pursuant to that Section, the General Partner may issue cash
in lieu of stock to the extent necessary to prevent the recipient
from violating the Ownership Limitations of Section 2 of Article VII
of the Charter, or corresponding provisions of any amendment or
restatement thereof; and
(ii) A holder of Series B Preferred Units will not have the
right to exchange Series B Preferred Units for the General Partner's
common stock if (1) in the opinion of counsel for the General
Partner, the General Partner would no longer qualify or its status
would be seriously compromised as a real estate investment trust
under the Internal Revenue Code as a result of such exchange; or (2)
such exchange would, in the opinion of counsel for the General
Partner, constitute or be likely to constitute a violation of
applicable securities laws. In the event of either such occurrence,
the General Partner shall purchase such holder's Series B Preferred
Units for cash at a purchase price of $100 per Series B Preferred
Unit.
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(e) Reservation of Common Stock. The General Partner shall at all
times reserve and keep available a sufficient number of authorized but
unissued shares of common stock to permit the exchange of all of the
outstanding Series B Preferred Units pursuant to this Section 17.8.
(f) Payment of Series B Priority Return. On the Series B Preferred
Unit Distribution Payment Date next following a conversion or exchange
date, holders of Series B Preferred Units converted or exchanged on such
date shall be entitled to Series B Priority Return in an amount equal to a
prorated portion of the Series B Priority Return based on the number of
days elapsed from the prior Series B Preferred Unit Distribution Payment
Date through, but not including, the conversion or exchange date.
SECTION 17.9 NO SINKING FUND. No sinking fund shall be established
for the retirement or redemption of Series B Preferred Units.
8. Governing Law. This Amendment shall be interpreted and enforced
according to the laws of the State of Michigan.
9. Full Force and Effect. Except as amended by the provisions hereof, the
Agreement, as previously amended, shall remain in full force and effect in
accordance with its terms and is hereby ratified, confirmed and reaffirmed by
the undersigned for all purposes and in all respects.
10. Successors/Assigns. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto, their respective legal
representatives, successors and assigns.
11. Counterparts. This Amendment may be executed in counterparts, all of
which together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart.
(SIGNATURES APPEAR ON NEXT PAGE)
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IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the
day and year first above written.
GENERAL PARTNER
SUN COMMUNITIES, INC.
By: /s/ Jonathan M. Colman
-------------------------------------------
Name: Jonathan M. Colman
Title: Senior Vice President - Acquisitions
(SIGNATURES CONTINUE ON NEXT PAGE)
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NEW LIMITED PARTNER
FOUR SEASONS MOBILE HOME PARK,
AN INDIANA PARTNERSHIP
By: /s/ Randall Lipps
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Randall Lipps
By: /s/ Sharon DeLucemy
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Sharon DeLucemy
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