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EXHIBIT 10.1.9
NINTH AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF FELCOR SUITES LIMITED PARTNERSHIP
This Ninth Amendment to Amended and Restated Agreement of Limited
Partnership of FelCor Suites Limited Partnership (the "Amendment"), is entered
into as of May 6, 1998, 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. 3 to the Partnership Agreement to
create and provide for the authorization for issuance of a class of the
Partnership Securities designated as the "Series B Cumulative Redeemable
Preferred Units," having the preferences and relative, participating, optional
or other special rights, powers and duties set forth in such Addendum No. 3.
Such Addendum No. 3 shall be in the form of Addendum No. 3 attached to this
Amendment. The Addendum No. 3 is hereby incorporated into and made a part of
the Partnership Agreement for all purposes.
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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: /s/ Lawrence D. Robinson
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Name: Lawrence D. Robinson
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Title: Senior Vice President & General Counsel
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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: /s/ Lawrence D. Robinson
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Name: Lawrence D. Robinson
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Title: Sr. Vice President & General Counsel
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FELCOR SUITES LIMITED PARTNERSHIP
_____________________
ADDENDUM NO. 3 TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
_____________________
DESIGNATION OF
SERIES B CUMULATIVE REDEEMABLE 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. 3 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 B Cumulative Redeemable
Preferred Units" (the "SERIES B PREFERRED UNITS"). The Series B 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 B PREFERRED UNITS. The authorized
number of Series B Preferred Units shall be 57,500.
3. PREFERENCES, RIGHTS, POWERS AND DUTIES.
3.1 DEFINITIONS. For purposes of the Series B Preferred
Units, the following terms shall have the meanings indicated:
"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).
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"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.
"Distribution Payment Date" shall mean the last calendar day
of January, April, July and October in each year, commencing on July
31, 1998; PROVIDED, HOWEVER, that if any Distribution Payment Date
falls on any day other than a Business Day, the distribution 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 February 1, May 1, August 1 and November 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 7, 1998 and end on
and include July 31, 1998).
"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 B 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.
"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.
"Series B Preferred Stock" shall mean the 9% Series B
Cumulative Redeemable Preferred Stock, $0.01 par value and $2,500.00
liquidation preference per share, of the General Partner.
"Series B 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
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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 B Preferred Units shall
mean placing such funds in a separate account or delivering such funds
to a disbursing, paying or other similar agent.
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 B 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 B Preferred Unit equal to $225.00 per
annum. Such distributions shall be cumulative from May 7, 1998,
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, 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 B 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 B Preferred Units shall be computed
by dividing the annual distribution rate by four. The amount of
distributions payable for any period shorter or longer than a full
Distribution Period, on the Series B Preferred Units shall be computed
on the basis of a 360-day year. consisting of twelve 30-day months.
Holders of the Series B 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 B
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 B Preferred Units that may be in arrears.
(c) So long as any of the Series B 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
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Series B 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 B 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 B Preferred Units and
accumulated and unpaid on such Parity Units.
(d) So long as any of the Series B 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 sinking fund for the redemption of any such
units) by the Partnership, directly or indirectly), unless in each
case (i) the full cumulative distributions on all outstanding Series B
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 B 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 B 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 B Preferred Units
shall be entitled to receive two thousand five hundred dollars
($2,500.00) per Series B 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 B 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
B Preferred Units and any such other Parity Units ratably in
accordance with the respective amounts that would be payable on such
Series B 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.
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(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 B 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 B Preferred
Units shall not be entitled to share therein.
3.4 REDEMPTION.
(a) The Series B Preferred Units shall be redeemable by
the Partnership solely when, as, and if any share of the Series B
Preferred Stock is redeemed by the General Partner and in the same
proportion as shares of the Series B Preferred Stock are redeemed by
the General Partner so that the number of Series B Preferred Units
remaining unredeemed shall be the same as, and at all times equal to,
the number of shares of Series B Preferred Stock remaining unredeemed.
The Series B Preferred Stock is not redeemable by the General Partner
prior to May 7, 2003, and, therefore, the Series B Preferred Units
shall not be redeemable by the Partnership prior to such date.
(b) Upon redemption of the Series B 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 B Preferred Unit called for redemption shall be redeemed
in cash at a price per unit equal to $2,500.00 per unit, plus all
accrued and unpaid distributions thereon to the Call Date, without
interest, to the extent that the Partnership has funds legally
available therefor. The redemption price of the Series B Preferred
Units (other than any portion thereof consisting of accrued and unpaid
distributions) must be paid solely from the sale proceeds of other
equity interests of the Partnership and not from any other source.
For purposes of the foregoing sentence, "equity interests" means any
general partner interests, limited partner interests, preferred units,
depositary shares, interests, participations, or other ownership
interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for partnership units) or
options to purchase any of the foregoing. Distributions payable on
the Series B Preferred Units for any period greater or less than a
full dividend period will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Except as provided above, the
Partnership shall make no payment or allowance for unpaid
distributions, whether or not in arrears, on Series B Preferred Units
called for redemption or on the equity interests issued upon such
redemption.
(c) If full cumulative distributions on the Series B
Preferred Units and any other class or series of Parity Units have not
been paid or declared and set apart for payment, the Series B
Preferred Units may not be redeemed in part and the Partnership may
not purchase or acquire Series B Preferred Units, otherwise than
pursuant to a purchase or exchange offer made on the same terms to all
holders of Series B Preferred Units.
(d) If the Partnership shall redeem Series B Preferred
Units pursuant to this Section 3.4, notice of such redemption shall be
given to the holders of the Series B
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Preferred Units called for redemption as soon as practicable after
notice of redemption of the Series B Preferred Stock is given by the
General Partner.
From and after the Call Date (unless the Partnership shall
fail to make available the amount of cash necessary to effect such
redemption), (i) except as otherwise provided herein, distributions on
the Series B 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 B
Preferred Units shall cease (except the rights to receive the cash
payable upon such redemption, without interest thereon, upon surrender
and endorsement of their certificates).
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 cash (without interest thereon) for which such units
have been redeemed. If fewer than all the outstanding Series B
Preferred Units are to be redeemed, units to be redeemed shall be
selected by the Partnership from outstanding Series B 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 B
Preferred Units represented by any certificate are redeemed, then new
certificates representing the unredeemed units shall be issued without
cost to the holder thereof.
3.5 CONVERSION. Holders of Series B Preferred Units
shall have no conversion rights.
3.6 RANKING. Any class or series of units of the
Partnership shall be deemed to rank:
(a) prior to the Series B 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 B
Preferred Units;
(b) on a parity with the Series B 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 B Preferred Units, if the holders of such class of units or
series and the Series B 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"); the Series A Cumulative Convertible Preferred
Units shall be Parity Units with respect to the Series B Preferred
Units; and
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(c) junior to the Series B 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 B 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 B 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 6th day of May, 1998.
FELCOR SUITES LIMITED PARTNERSHIP
By: FELCOR SUITE HOTELS, INC., a
Maryland corporation, as its General Partner
By: /s/ Lawrence D. Robinson
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Name: Lawrence D. Robinson
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Title: Sr.Vice President & General Counsel
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