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EXHIBIT 10.1.5
FIFTH AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF FELCOR SUITES LIMITED PARTNERSHIP
This Fifth Amendment to Amended and Restated Agreement of Limited
Partnership of FelCor Suites Limited Partnership (the "Amendment"), is entered
into as of May 2, 1996 by and between FelCor Suite Hotels, Inc., a Maryland
corporation, as General Partner, and all other persons and entities who are or
shall in the future become limited partners of this limited partnership in
accordance with the provisions of the Partnership Agreement (as hereinafter
defined).
R E C I T A L S:
A. The parties have previously executed and delivered that
certain Amended and Restated Agreement of Limited Partnership of FelCor Suites
Limited Partnership dated as of July 25, 1994, as previously amended (the
"Partnership Agreement"), pursuant to which they formed a Delaware limited
partnership under the name "FelCor Suites Limited Partnership" (the
"Partnership").
B. Pursuant to Sections 4.6 and 1.4 of the Partnership Agreement,
the General Partner is authorized to cause the Partnership to issue from time
to time Partnership Securities in one or more classes, and in one or more
series of any such classes, and to establish the designations, preferences,
rights, powers and duties of such classes and series.
C. The General Partner desires to exercise such authority by
amending the Partnership Agreement as provided herein to establish a new class
and series of Partnership Securities.
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms used without definition
herein shall have the meanings set forth therefor in the Partnership Agreement.
2. Amendment of Partnership Agreement. The Partnership Agreement
is hereby amended to add an Addendum No. 2 to the Partnership Agreement to
create and provide for the authorization for issuance of a class of the
Partnership Securities designated as the "Series A Cumulative Convertible
Preferred Units," having the preferences and relative, participating, optional
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or other special rights, powers and duties set forth in such Addendum No. 2.
Such Addendum No. 2 shall be in the form of Addendum No. 2 attached to this
Amendment. The Addendum No. 2 is hereby incorporated into and made a part of
the Partnership Agreement for all purposes.
IN WITNESS WHEREOF, the General Partner has caused this Amendment to
be duly executed in its respective capacities set forth below as of the date
first set forth above.
GENERAL PARTNER:
FELCOR SUITE HOTELS, INC.,
a Maryland corporation
By:
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Name:
-----------------------------------
Title:
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LIMITED PARTNERS (for all the Limited
Partners now and hereafter admitted as
limited partners of the Partnership,
pursuant to the powers of attorney in
favor of the General Partner
contained in Section 1.4 of
the Agreement):
By: FELCOR SUITE HOTELS, INC.,
acting as General Partner and
as duly authorized attorney-in-fact
By:
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Name:
--------------------------------
Title:
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FELCOR SUITES LIMITED PARTNERSHIP
_____________________
ADDENDUM NO. 2 TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
_____________________
DESIGNATION OF
SERIES A CUMULATIVE CONVERTIBLE PREFERRED UNITS
The undersigned General Partner of FelCor Suites Limited Partnership, a
Delaware limited partnership (the "PARTNERSHIP"), pursuant to the authority
expressly granted to the General Partner by the Amended and Restated Agreement
of Limited Partnership of FelCor Suites Limited Partnership dated as of July
25, 1994, as amended, pursuant to which the Partnership is formed (the
"PARTNERSHIP AGREEMENT"), and in particular Sections 1.4 and 4.6 thereof,
hereby executes and delivers this Addendum No. 2 to the Partnership Agreement
(the "ADDENDUM"), which Addendum is hereby made a part of the Partnership
Agreement for all purposes, to create and provide for the issue of a class of
Partnership Units and to fix the designations, preferences and relative,
participating, optional or other special rights, powers and duties thereof as
follows:
1. DESIGNATION OF CLASS. A class of units of the Partnership is hereby
authorized and designated as the "Series A Cumulative Convertible Preferred
Units" (the "SERIES A PREFERRED UNITS"). The Series A Preferred Units shall
have the preferences and relative, participating, optional or other special
rights, powers and duties that are set forth in this Addendum and to the extent
permitted by this Addendum, established by the General Partner and set forth in
any amendments to the Partnership Agreement or any amendments or annexes to
this Addendum.
2. AUTHORIZED NUMBER OF SERIES A PREFERRED UNITS. The authorized
number of Series A Preferred Units shall be 6,900,000.
3. PREFERENCES, RIGHTS, POWERS AND DUTIES.
3.1 DEFINITIONS. For purposes of the Series A Preferred Units,
the following terms shall have the meanings indicated:
"Act" shall mean the Securities Act of 1933, as amended.
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"Addendum" shall have the meaning set forth in the preamble hereof.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally- chartered banking institutions in Texas or New
York are not required to be open.
"Call Date" shall have the meaning set forth in Section 3.4(b).
"Common Unit" shall mean the units of partnership interest of the
Partnership not designated as Preferred Units.
"Common Stock" shall mean the common stock, $0.01 par value per share,
of the General Partner.
"Conversion Date" shall have the meaning set forth in Section 3.5(a).
"Conversion Price" shall mean the conversion price per Common Unit for
which the Series A Preferred Units are convertible, as such Conversion Price
may be adjusted pursuant to Section 3.5. The initial Conversion Price shall be
$32.25 (equivalent to a conversion rate of 0.7752 Common Units for each Series
A Preferred Unit).
"Current Market Price" of Common Units shall mean the equivalent of the
current market price of the Common Stock. The current market price of the
Common Stock or any other class of capital stock or other security of the
General Partner or any other issuer for any day shall mean the last reported
sales price, regular way on such day, or, if no sale takes place on such day,
the average of the reported closing bid and asked prices on such day, regular
way, in either case as reported on the New York Stock Exchange ("NYSE") or, if
such security is not listed or admitted for trading or, if not listed or
admitted for trading on any national securities exchange, on the National
Market System of the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or, if such security is not quoted on such
National Market System, the average of the closing bid and asked prices on such
day in the over-the-counter market as reported by NASDAQ or, if bid and asked
prices for such security on such day shall not have been reported through
NASDAQ, the average of the bid and asked prices on such day as furnished by any
NYSE member firm regularly making a market in such security selected for such
purpose by the General Partner.
"Distribution Payment Date" shall mean the last calendar day of
January, April, July and October in each year, commencing on July 31, 1996;
PROVIDED, HOWEVER, that if any Distribution Payment Date falls on any day other
than a Business Day, the distribution
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payment due on such Distribution Payment Date shall be paid on the Business Day
immediately following such Distribution Payment Date.
"Distribution Period" shall mean quarterly distribution periods
commencing January 1, March 1, June 1 and September 1 of each year and ending
on and including the day preceding the first day of the next succeeding
Distribution Period (other than the initial Distribution Period, which shall
commence on May 6, 1996 and end on and include June 30, 1996).
"Fair Market Value" shall mean the average of the daily Current Market
Prices of a Common Unit during the five (5) consecutive Trading Days selected
by the Partnership commencing not more than twenty (20) Trading Days before,
and ending not later than, the earlier of the day in question and the day
before the "ex" date with respect to the issuance or distribution requiring
such computation. The term "'ex' date," when used with respect to any issuance
or distribution, means the first day on which the shares of Common Stock trade
regular way, without the right to receive such issuance or distribution, on the
exchange or in the market, as the case may be, used to determine that day's
Current Market Price.
"General Partner" shall mean FelCor Suite Hotels, Inc., a Maryland
corporation, which is the sole general partner of the Partnership.
"Issue Date" shall mean the date on which the Partnership first issues
a Series A Preferred Unit.
"Junior Units" shall have the meaning set forth in Section 3.6(c).
"Parity Units" shall have the meaning set forth in Section 3.6(b).
"Partnership" shall have the meaning set forth in the preamble hereof.
"Partnership Agreement" shall have the meaning set forth in the
preamble hereof.
"Person" shall mean any individual, partnership, limited liability
company, corporation or other entity, and shall include any successor (by
merger or otherwise) of such entity.
"Preferred Units" shall mean units of partnership interest of the
Partnership designated as having certain preferences to the Common Units with
respect to distributions or upon liquidation of the Partnership.
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"Series A Preferred Stock" shall mean the $1.95 Series A Cumulative
Convertible Preferred Stock, $0.01 par value and $25.00 liquidation preference
per share, of the General Partner.
"Series A Preferred Units" shall have the meaning set forth in Section
1.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Partnership in its accounting
ledgers of any accounting or bookkeeping entry which indicates, pursuant to a
declaration of dividends or other distribution by the Partnership, the
allocation of funds to be so paid on any series or class of capital units of
the Partnership; PROVIDED, HOWEVER, that if any funds for a class or series of
Junior Units or any class or series of Parity Units are placed in a separate
account of the Partnership or delivered to a disbursing, paying or other
similar agent, then "set apart for payment" with respect to the Series A
Preferred Units shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying or other similar agent.
"Trading Day" shall mean any day on which the Common Stock is traded on
the NYSE, or if such securities are not listed or admitted for trading on the
NYSE, on the principal national securities exchange on which such securities
are listed or admitted, or if not listed or admitted for trading of any
national securities exchange, on the National Market System of NASDAQ, or if
such securities are not quoted on such National Market System, in the
applicable securities market in which the securities are traded.
Initially capitalized terms used without definition herein shall have
the meanings set forth therefor in the Partnership Agreement. Other terms
defined herein have the meanings so given them. Whenever the context requires,
the gender of all words used in this Addendum shall include the masculine,
feminine and neuter form of such words, and the singular form shall include the
plural and vice versa.
3.2 DISTRIBUTIONS.
(a) The holders of the Series A Preferred Units shall be entitled
to receive, when, as and if declared by the General Partner out of funds
legally available for that purpose, distributions payable in cash in an amount
per Series A Preferred Unit equal to the greater of $1.95 per annum or the cash
distributions declared or paid for the corresponding period (determined on each
Distribution Payment Date) on the number of Common Units, or portion thereof,
into which each Series A Preferred Unit is convertible (under Section 3.5).
Such distributions shall be cumulative from May 6, 1996, whether or not in any
Distribution Period or Periods there shall be funds of the Partnership legally
available for the payment of such distributions, and shall be payable
quarterly, when, as and if declared by the General Partner,
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in arrears on Distribution Payment Dates, commencing on the first Distribution
Payment Date after the Issue Date. Each such distribution shall be payable in
arrears to the holders of record of the Series A Preferred Units, as they
appear on the records of the Partnership at the close of business on such
record dates, not more than sixty (60) days preceding such Distribution Payment
Dates thereof, as shall be fixed by the General Partner. Accrued and unpaid
distributions for any past Distribution Periods may be declared and paid at any
time, without reference to any regular Distribution Payment Date, to holders of
record on such date, not exceeding forty-five (45) days preceding the payment
date thereof, as may be fixed by the General Partner.
(b) The amount of distributions payable for each full Distribution
Period for the Series A Preferred Units shall be computed by dividing the
annual distribution rate by four (4). The amount of distributions payable for
any period shorter or longer than a full Distribution Period, on the Series A
Preferred Units shall be computed on the basis of twelve (12), thirty (30) day
months and a 360-day year. Holders of the Series A Preferred Units shall not
be entitled to any distributions, whether payable in cash, property or units,
in excess of cumulative distributions, as herein provided, on the Series A
Preferred Units. No interest, or sum of money in lieu of interest, shall be
payable in respect of any distribution payment or payments on the Series A
Preferred Units that may be in arrears.
(c) So long as any of the Series A Preferred Units are
outstanding, no distributions, except as described in the immediately following
sentence, shall be declared or paid or set apart for payment on any class or
series of Parity Units for any period unless full cumulative distributions have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the Series A
Preferred Units for all Distribution Periods terminating on or prior to the
Distribution Payment Date on such class or series of Parity Units. When
distributions are not paid in full or a sum sufficient for such payment is not
set apart, as aforesaid, all distributions declared upon the Series A Preferred
Units and all distributions declared upon any other class or series of Parity
Units shall be declared ratably in proportion to the respective amounts of
distributions accumulated and unpaid on the Series A Preferred Units and
accumulated and unpaid on such Parity Units.
(d) So long as any of the Series A Preferred Units are
outstanding, no distributions (other than dividends or distributions paid in
units of, or options, warrants or rights to subscribe for or purchase units of,
Junior Units), shall be declared or paid or set apart for payment or other
distribution declared or made upon Junior Units, nor shall Junior Units be
redeemed, purchased or otherwise acquired (other than a redemption, purchase or
other acquisition of Common Units made for purposes of an employee incentive or
benefit plan of the Partnership for any consideration (or any moneys be paid to
or made available for a
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sinking fund for the redemption of any such units) by the Partnership, directly
or indirectly (except by conversion into or exchange for Junior Units)), unless
in each case (i) the full cumulative distributions on all outstanding Series A
Preferred Units and any other Parity Units shall have been paid or set apart
for payment for all past Distribution Periods with respect to the Series A
Preferred Units and all past distribution periods with respect to such Parity
Units and (ii) sufficient funds shall have been paid or set apart for the
payment of the distribution for the current Distribution Period with respect to
the Series A Preferred Units and the current Distribution Period with respect
to such Parity Units.
3.3 LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of
the Partnership, whether voluntary or involuntary, before any payment or
distribution of the assets of the Partnership (whether capital or surplus)
shall be made to or set apart for the holders of Junior Units, the holders of
the Series A Preferred Units shall be entitled to receive twenty-five Dollars
($25.00) per Series A Preferred Unit plus an amount equal to all distributions
(whether or not earned or declared) accrued and unpaid thereon to the date of
final distribution to such holders, but such holders shall not be entitled to
any further payment. If, upon any liquidation, dissolution or winding up of
the Partnership, the assets of the Partnership, or proceeds thereof,
distributable among the holders of the Series A Preferred Units shall be
insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other class or series of Parity Units, then such assets, or the
proceeds thereof, shall be distributed among the holders of the Series A
Preferred Units and any such other Parity Units ratably in accordance with the
respective amounts that would be payable on such Series A Preferred Units and
any such other Parity Units if all amounts payable thereon were paid in full.
For the purposes of this Section 3.3, (i) a consolidation or merger of the
Partnership with one or more Persons, (ii) a sale or transfer of all or
substantially all of the assets of the Partnership, or (iii) a statutory
exchange of units shall not be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary, of the Partnership.
(b) Subject to the rights of the holders of any series or class or
classes of Parity Units, after payment shall have been made in full to the
holders of the Series A Preferred Units, as provided in this Section 3.3, any
other series or class or classes of Junior Units shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the holders
of the Series A Preferred Units shall not be entitled to share therein.
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3.4 REDEMPTION.
(a) The Series A Preferred Units shall be redeemable by the
Partnership solely when, as, and if any share of the Series A Preferred Stock
is redeemed by the General Partner and in the same proportion as shares of the
Series A Preferred Stock are redeemed by the General Partner so that the number
of Series A Preferred Units remaining unredeemed shall be the same as, and at
all times equal to, the number of shares of Series A Preferred Stock remaining
unredeemed. The Series A Preferred Stock is not redeemable by the General
Partner prior to April 30, 2001, and, therefore, the Series A Preferred Units
shall not be redeemable by the Partnership prior to such date.
(b) Upon redemption of the Series A Preferred Units by the
Partnership on the date specified in the notice to holders required under
subparagraph (d) of this Section 3.4 (the "CALL DATE"), each Series A Preferred
Unit called for redemption shall (i) be converted into a number of Common Units
equal to the liquidation preference (excluding any accrued and unpaid
distributions) of the Series A Preferred Units being redeemed divided by the
Conversion Price as of the opening of business on the Call Date or (ii) be
redeemed in cash at a price per unit equal to the aggregate Current Market
Price (determined as of the date of the notice of redemption) of the number of
Common Units into which the Series A Preferred Units are then convertible
divided by the then current Conversion Price, in either case to the same extent
and in the same amounts as the shares of Series A Preferred Stock are redeemed
by the General Partner.
Upon any redemption of the Series A Preferred Units, the Partnership
shall pay any accrued and unpaid distributions in arrears for any full
Distribution Period ending on or prior to the Call Date. If the Call Date
falls after a distribution payment record date and prior to the corresponding
Distribution Payment Date, then each holder of Series A Preferred Units at the
close of business on such distribution payment record date shall be entitled to
the distribution payable on such units on the corresponding Distribution
Payment Date. Except as provided above, the Partnership shall make no payment
or allowance for unpaid distributions, whether or not in arrears, on Series A
Preferred Units called for redemption or on the Common Units issued upon such
redemption.
(c) If full cumulative distributions on the Series A Preferred
Units and any other class or series of Parity Units have not been paid or
declared and set apart for payment, the Series A Preferred Units may not be
redeemed in part and the Partnership may not purchase or acquire Series A
Preferred Units, otherwise than pursuant to a purchase or exchange offer made
on the same terms to all holders of Series A Preferred Units.
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(d) If the Partnership shall redeem Series A Preferred Units
pursuant to this Section 3.4, notice of such redemption shall be given to the
holders of the Series A Preferred Units called for redemption as soon as
practicable after notice of redemption of the Series A Preferred Stock is given
by the General Partner.
From and after the Call Date (unless the Partnership shall fail to make
available a number of the Common Units or amount of cash necessary to effect
such redemption), (i) except as otherwise provided herein, distributions on the
Series A Preferred Units so called for redemption shall cease to accrue, (ii)
such units shall no longer be deemed to be outstanding, and (iii) all rights of
the holders thereof as holders of Series A Preferred Units shall cease (except
the rights to receive the Common Units and cash payable upon such redemption,
without interest thereon, upon surrender and endorsement of their certificates
if so required to receive any distributions payable thereon).
As promptly as practicable after the surrender in accordance with such
notice of the certificates for any such units so redeemed (properly endorsed or
assigned for transfer, if the Partnership shall so require and if the notice
shall so state), such units shall be exchanged for certificates of Common Units
and any cash (without interest thereon) for which such units have been
redeemed. If fewer than all the outstanding Series A Preferred Units are to be
redeemed, units to be redeemed shall be selected by the Partnership from
outstanding Series A Preferred Units not previously called for redemption by
lot or pro rata (as nearly as may be) or by any other method determined by the
Partnership in its sole discretion to be equitable. If fewer than all the
Series A Preferred Units represented by any certificate are redeemed, then new
certificates representing the unredeemed units shall be issued without cost to
the holder thereof.
(e) No fractional units or scrip representing fractions of Common
Units shall be issued upon redemption of the Series A Preferred Units. Instead
of any fractional interest in a Common Unit that would otherwise be deliverable
upon the redemption of a Series A Preferred Unit, the Partnership shall pay to
the holder of such unit an amount in cash (computed to the nearest cent) based
upon the Current Market Price of Common Units on the Trading Day immediately
preceding the Call Date. If more than one (1) unit shall be surrendered for
redemption at one time by the same holder, the number of full Common Units
issuable, or cash paid, upon redemption thereof shall be computed on the basis
of the aggregate number of Series A Preferred Units so surrendered.
3.5 MANDATORY CONVERSION. Series A Preferred Units shall be
automatically convertible into Common Units, as follows:
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(a) When, as and if any share of the Series A Preferred Stock is
converted into Common Stock, then (and solely in such event) a Series A
Preferred Unit shall automatically be converted into Common Units in the same
proportion as shares of the Series A Preferred Stock are converted into shares
of Common Stock so that the number of shares of Series A Preferred Stock
remaining unconverted (if any) shall be the same as, and at all times equal to,
the number of Series A Preferred Units remaining unconverted (if any).
The Partnership or the General Partner shall cause a notice of such
mandatory conversion to be mailed, postage prepaid, to the holders of the
Series A Preferred Units at their respective addresses appearing on the unit
transfer records of the Partnership. The notice shall set forth (i) the
effective date of the conversion (which shall be the same date upon which the
corresponding shares of Series A Preferred Stock are converted into Common
Stock) (the "CONVERSION DATE"), (ii) with respect to each holder, the number of
Series A Preferred Units to be converted together with the number of Common
Units to be issued upon conversion, and (iii) the address of the office of the
General Partner where such the Series A Preferred Units called for conversion
shall be surrendered. Any notice which is mailed in the manner provided herein
shall be conclusively deemed to have been duly given, whether or not the holder
of the Series A Preferred Units receives such notice, and failure to duly give
such notice by mail, or any defect in such notice, to any holder of the Series
A Preferred Units shall not affect the validity of the conversion thereof into
Common Units.
(b) On or after the Conversion Date, the holder of each Series A
Preferred Unit to be converted shall surrender the certificate representing
such unit, duly endorsed or assigned to the Partnership or in blank, at the
office of the General Partner. Unless the units issuable on conversion are to
be issued in the same name as the name in which such Series A Preferred Unit is
registered, each unit surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the Partnership, duly executed
by the holder or such holder's duly authorized attorney and an amount
sufficient to pay any transfer or similar tax (or evidence reasonably
satisfactory to the Partnership demonstrating that such taxes have been paid).
Holders of Series A Preferred Units at the close of business on a
distribution payment record date shall be entitled to receive the distribution
payable on such units on the corresponding Distribution Payment Date
notwithstanding the conversion thereof following such distribution payment
record date and prior to such Distribution Payment Date. However, Series A
Preferred Units called for conversion during the period between the close of
business on any distribution payment record date and the opening of business on
the corresponding Distribution Payment Date (except units converted after the
issuance of notice of redemption with respect to a Call Date during such
period, such Series A Preferred Units being entitled to such distribution on
the Distribution Payment Date) shall be accompanied
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by a payment of an amount equal to the distribution payable on such units on
such Distribution Payment Date. Each holder of Series A Preferred Units called
for conversion on a distribution payment record date shall on such Distribution
Payment Date receive the distribution payable by the Partnership on such Series
A Preferred Units on such date, and the holder of such units need not include
payment of the amount of such distribution upon conversion of the Series A
Preferred Units. Except as provided above, the Partnership shall make no
payment or allowance for unpaid distributions, whether or not in arrears, on
Series A Preferred Units called for conversion or for distributions on the
Common Units issued upon such conversion.
As promptly as practicable after the surrender of certificates for
Series A Preferred Units as aforesaid, the Partnership shall issue and shall
deliver at the office of the General Partner to such holder, or on his or her
written order, a certificate or certificates for the number of full Common
Units issuable upon the conversion of such units in accordance with provisions
of this Section 3.5, and any factional interest in respect of a Common Unit
arising upon such conversion shall be settled as provided in paragraph (c) of
this Section 3.5. If fewer than all the outstanding Series A Preferred Units
are to be converted, units to be converted shall be selected by the Partnership
from outstanding Series A Preferred Units not previously called for conversion
by lot or pro rata (as nearly as may be) or by any other method determined by
the Partnership in its sole discretion to be equitable. If fewer than all the
Series A Preferred Units represented by any certificate are converted, then new
certificates representing the unconverted units shall be issued without cost to
the holder thereof.
Each conversion shall be deemed to have been effected immediately prior
to the close of business on the Conversion Date and the Person or Persons in
whose name or names any certificate or certificates for Common Units shall be
issuable upon such conversion shall be deemed to have become the holder or
holders of record of the units represented thereby at such time on the
Conversion Date and such conversion shall be at the Conversion Price in effect
at such time on the Conversion Date unless the unit transfer books of the
Partnership shall be closed on that date, in which event such Person or Persons
shall be deemed to have become holder or holders of record at the close of
business on the next succeeding day on which such unit transfer books are open,
but such conversion shall be at the Conversion Price in effect on the
Conversion Date.
On or after the Conversion Date, (i)(a) all distributions upon the
Series A Preferred Units called for conversion shall cease and (b) all rights
of the holders of the Series A Preferred Units called for conversion shall
cease, except for the right to receive Common Units, and (ii) the Series A
Preferred Units called for conversion shall no longer be deemed to be
outstanding.
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(c) No fractional units or scrip representing Common Units shall
be issued upon conversion of the Series A Preferred Units. Instead of any
fractional interest in a Common Unit that would otherwise be deliverable upon
the conversion of a Series A Preferred Unit, the Partnership shall pay to the
holder of such unit an amount in cash (computed to the nearest cent) based upon
the Current Market Price of Common Units on the Trading Day immediately
preceding the Conversion Date. If more than one (1) unit of the same holder
shall be called for conversion at one time, the number of full Common Units
issuable, or cash paid, upon conversion thereof shall be computed on the basis
of the aggregate number of Series A Preferred Units so converted.
(d) The Conversion Price shall be adjusted from time to time in
the same manner and to the same extent as the conversion price with respect to
the Series A Preferred Stock is adjusted from time to time so that the
Conversion Price shall be the same as and at all times equal to the conversion
price of the Series A Preferred Stock.
(e) Prior to the delivery of any securities that the Partnership
shall be obligated to deliver upon conversion of the Series A Preferred Units,
the Partnership shall endeavor to comply with all federal and state laws and
the regulations promulgated thereunder requiring the registration of such
securities with, or any approval of or consent to the delivery thereof, by any
governmental authority.
(f) The Partnership will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
Common Units or other securities or property on conversion of the Series A
Preferred Units pursuant hereto; PROVIDED, HOWEVER, that the Partnership shall
not be required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of Common Units or other securities or
property in a name other than that of the holder of the Series A Preferred
Units to be converted, and no such issue or delivery shall be made unless and
until the Person requesting such issue or delivery has paid to the Partnership
the amount of any such tax or established, to the reasonable satisfaction of
the Partnership, that such tax has been paid.
3.6 RANKING. Any class or series of units of the Partnership
shall be deemed to rank:
(a) prior to the Series A Preferred Units, as to the payment of
distributions and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of distributions or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to the
holders of Series A Preferred Units;
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(b) on a parity with the Series A Preferred Units, as to the
payment of distributions and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the distribution rates, distribution
payment dates or redemption or liquidation prices per unit thereof be different
from those of the Series A Preferred Units, if the holders of such class of
units or series and the Series A Preferred Units shall be entitled to the
receipt of distributions and of amounts distributable upon liquidation,
dissolution or winding up in proportion to their respective amounts of accrued
and unpaid distributions per unit or liquidation preferences, without
preference or priority one over the other ("PARITY UNITS"); and
(c) junior to the Series A Preferred Units, as to the payment of
distributions or as to the distribution of assets upon liquidation, dissolution
or winding up, if such units or series shall be Common Units or if the holders
of the Series A Preferred Units shall be entitled to receipt of distributions
or of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of such units or series
("JUNIOR UNITS").
3.7 RECORD HOLDERS. The Partnership may deem and treat the record
holder of any Series A Preferred Units as the true and lawful owner thereof for
all purposes, and the Partnership shall not be affected by any notice to the
contrary.
IN WITNESS WHEREOF, the Partnership has caused this Addendum to be executed by
its General Partner, acting through its duly authorized officer, as of this 2nd
day of May, 1996.
FELCOR SUITES LIMITED PARTNERSHIP
By: FELCOR SUITE HOTELS, INC., a
Maryland corporation, as its
General Partner
By:
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Name:
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Title:
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