EXHIBIT 99.4
TWENTY-THIRD AMENDMENT TO
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXXX X. XXXXX RESIDENTIAL REALTY L.P.
THIS TWENTY-THIRD AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF XXXXXXX X. XXXXX RESIDENTIAL REALTY L.P. (this
"Twenty-Third Amendment"), dated as of July 13, 1999, is entered into by Xxxxxxx
X. Xxxxx Residential Realty, Inc., a Maryland corporation, as general partner
(the "General Partner") of Xxxxxxx X. Xxxxx Residential Realty L.P. (the
"Partnership"), for itself and on behalf of the limited partners of the
Partnership.
WHEREAS, Section 4.2.B of the First Amended and Restated Agreement
of Limited Partnership of the Partnership (as heretofore amended, the
"Partnership Agreement") provides that the General Partner shall not issue
additional convertible securities containing the right to subscribe for or
purchase shares of Common Stock of the General Partner ("REIT Shares" and
collectively, the "New Securities"), other than to all holders of REIT Shares,
unless the General Partner causes the Partnership to issue to the General
Partner Partnership Interests having designations, preferences and other rights,
all such that the economic interests are substantially the same as those of the
New Securities;
WHEREAS, the General Partner has entered into a Preferred Share
Purchase Agreement dated as of July 2, 1999, pursuant to which the General
Partner has agreed to issue, among other things, shares of a newly created
series of capital stock, designated Series E Cumulative Convertible Redeemable
Preferred Stock (the "Series E Preferred Stock"); and
WHEREAS, pursuant to the authority granted to the General Partner
pursuant to Section 4.2 of the Partnership Agreement, the General Partner
desires to amend the Partnership Agreement (i) to establish a new class of
Units, to be entitled Series E Cumulative Convertible Redeemable Preferred Units
(the "Series E Preferred Units"), and to set forth the designations, rights,
powers, preferences and duties of such Series E Preferred Units, which are
substantially the same as those of the Series E Preferred Stock, and (ii) to
make certain other changes to the Partnership Agreement;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby amends the Partnership Agreement, as
follows:
1. Section 4.2 of the Partnership Agreement is hereby amended by
adding after Section 4.2.G the following section:
H. Series E Preferred Units. Under the authority granted to it
by Section 4.2.A. hereof, the General Partner hereby establishes an
additional class of Partnership Units entitled "Series E Cumulative
Convertible Redeemable Preferred Units" (the "Series E Preferred
Units").
Series E Preferred Units shall have the designations, preferences,
rights, powers and duties as set forth in Exhibit J hereto.
2. Exhibits to Partnership Agreement.
A. The General Partner shall maintain the information set forth in
Exhibit A to the Partnership Agreement, as such information shall change from
time to time, in such form as the General Partner deems appropriate for the
conduct of the Partnership's affairs, and Exhibit A shall be deemed amended from
time to time to reflect the information so maintained by the General Partner,
whether or not a formal amendment to the Partnership Agreement has been executed
amending such Exhibit A. In addition to the designation of Series E Preferred
Units pursuant to this Twenty-Third Amendment, such information shall reflect
(and Exhibit A shall be deemed amended from time to time to reflect) the
issuance of any additional Partnership Units to the General Partner or any other
Person, the transfer of Partnership Units and the redemption of any Partnership
Units, all as contemplated herein.
B. The Partnership Agreement is hereby amended by attaching thereto
as Exhibit J the Exhibit J attached hereto.
3. Certain Capitalized Terms. All capitalized terms used in this
Twenty-Third Amendment and not otherwise defined shall have the meanings
assigned in the Partnership Agreement. Except as modified herein, all terms and
conditions of the Partnership Agreement shall remain in full force and effect,
which terms and conditions the General Partner hereby ratifies and affirms.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned has executed this Twenty-Third
Amendment as of the date first set forth above.
XXXXXXX X. XXXXX RESIDENTIAL REALTY, INC.,
as General Partner of
Xxxxxxx X. Xxxxx Residential Realty L.P.
and on behalf of existing Limited Partners
By: /s/ Xxxxxx X Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
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EXHIBIT J
DESIGNATION OF THE PREFERENCES, CONVERSION AND OTHER
RIGHTS, VOTING POWERS, RESTRICTIONS AND LIMITATIONS AS TO
SERIES E PREFERRED UNITS
The Series E Preferred Units shall have the following designations,
preferences, rights, powers and duties:
(1) Certain Defined Terms. The following capitalized terms used in
this Exhibit J shall have the respective meanings set forth below:
"Distribution Date" means (i) for any Distribution Period with
respect to which the Partnership pays a distribution on the Class A Units,
the date on which such distribution is paid, or (ii) for any Distribution
Period with respect to which the Partnership does not pay a distribution
on the Class A Units, the date set by the General Partner for payment of
dividends on the Series E Preferred Stock, which date shall not be later
than the forty-fifth calendar day after the end of the applicable
Distribution Period.
"Distribution Period" means quarterly periods commencing on January
1, April 1, July 1 and October 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 the
Issue Date and end on and include the last calendar day of the calendar
quarter containing the Issue Date, and other than the Distribution Period
during which any Series E Preferred Units shall be redeemed pursuant to
Section 4, which shall end on and include the date of such redemption.
"Fully Junior Units" shall mean the Common Units and any other class
or series of Partnership Units now or hereafter issued and outstanding
over which the Series E Preferred Units have preference or priority in
both (i) the payment of dividends and (ii) the distribution of assets on
any liquidation, dissolution or winding up of the Partnership.
"Issue Date" shall mean the date on which the first Series E
Preferred Units are issued.
"Junior Units" shall mean the Common Units and any other class or
series of Partnership Units now or hereafter issued and outstanding over
which the Series E Preferred Units have preference or priority in the
payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Partnership.
"Parity Units" has the meaning ascribed thereto in Section 6(B).
(2) Distributions.
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(A) The General Partner, in its capacity as the holder of the
then outstanding Series E Preferred Units, shall be entitled to receive
out of funds legally available therefor, when, as and if declared by the
General Partner, distributions payable in cash at the rate per Series E
Preferred Unit equal to the greater of (a)(i) $2.82875 per annum from the
Issue Date up to and including the first anniversary of the Issue Date,
(ii) $3.01125 per annum from the day after the period described in (i) up
to and including the second anniversary of the Issue Date and (iii)
$3.1025 per annum thereafter, or (b) the ordinary cash distributions
(determined on each Distribution Date) paid on the number of Class A
Units, or portion thereof, into which a Series E Preferred Unit is
convertible. The distributions referred to in clause (b) of the preceding
sentence shall equal the number of Class A Units, or portion thereof, into
which a Series E Preferred Unit is convertible, multiplied by the most
recent quarterly distribution on a Class A Unit on or before the
applicable Distribution Date. If the Partnership pays an ordinary cash
distribution on the Class A Units with respect to a Distribution Period
after the date on which the Distribution Date is declared pursuant to
clause (ii) of the definition of Distribution Date and the distribution
calculated with respect to clause (b) of the first sentence of this
Section 2(A) is greater than the distribution previously declared on the
Series E Preferred Units with respect to such Distribution Period, the
Partnership shall pay an additional distribution in respect of the Series
E Preferred Units on the date on which the distribution on the Class A
Units is paid, in an amount equal to the difference between (y) the
distribution calculated pursuant to clause (b) of the first sentence of
this Section 2(A) and (z) the amount of distributions previously declared
on the Series E Preferred Units with respect to such Distribution Period.
Distributions shall begin to accrue and shall be fully cumulative from the
first day of the applicable Distribution Period, 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 Dates. Accrued and unpaid distributions for any
past Distribution Periods may be declared and paid at any time and for
such interim periods, without reference to any regular Distribution Date,
to the General Partner on such date as may be fixed by the General Partner
for payment of the corresponding dividend on the Series E Preferred Stock.
Any distribution made on the Series E Preferred Units shall first be
credited against the earliest accrued but unpaid distribution due with
respect to Series E Preferred Units which remains payable.
(B) The amount of distributions referred to in clause (a) of
the first sentence of Section 2(A) shall be equal to the annual
distribution rate payable for each full Distribution Period for the Series
E Preferred Units shall be computed by dividing by four. The distribution
for the initial Distribution Period will include a partial distribution
for the period from the Issue Date until the last calendar day of the
calendar quarter containing the Issue Date. The amount of distributions
payable for such initial Distribution Period, or any other period shorter
than a full Distribution Period, on the Series E Preferred Units shall be
computed on the basis of a 360-day year of twelve 30-day months.
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No interest, or sum of money in lieu of interest, shall be payable in
respect of any distribution payment or payments on the Series E Preferred
Units that may be in arrears.
(C) So long as any Series E 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 E Preferred Units for all Distribution Periods
terminating on or prior to the distribution payment date for 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 Series E 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 E Preferred Units and accumulated and
unpaid on such Parity Units.
(D) So long as any Series E Preferred Units are outstanding,
no distributions (other than distributions paid solely in Fully Junior
Units or options, warrants or rights to subscribe for or purchase Fully
Junior Units) shall be declared or paid or set apart for payment or other
distribution shall be declared or made or set apart for payment upon
Junior Units, nor shall any Junior Units be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or other acquisition
of Class A Units made for purposes of an employee incentive or benefit
plan of the General Partner or any subsidiary) for any consideration (or
any moneys be paid to or made available for a sinking fund for the
redemption of any such Junior Units) by the Partnership, directly or
indirectly (except by conversion into or exchange for Fully Junior Units),
unless in each case (i) the full cumulative distributions on all
outstanding Series E Preferred Units and any other Parity Units of the
Partnership shall have been paid or declared and set apart for payment for
all past Distribution Periods with respect to the Series E 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 E Preferred Units and the current distribution period with respect
to such Parity Units.
(E) No distributions on the Series E Preferred Units shall be
declared by the General Partner or paid or set apart for payment by the
Partnership at such time as the terms and provisions of any agreement of
the General Partner or the Partnership, including any agreement relating
to indebtedness of either of them, prohibits such declaration, payment, or
setting apart for payment or provides that such declaration, payment or
setting apart for payment would constitute a breach thereof or a default
thereunder, or if such declaration or payment shall be restricted or
prohibited by law.
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(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 shall be made to or set
apart for the holders of Junior Units, the General Partner, in its
capacity as holder of the Series E Preferred Units, shall be entitled to
receive Thirty-Six Dollars and Fifty Cents ($36.50) (the "Series E
Liquidation Preference") per Series E 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 the General Partner,
in its capacity as such holder; but the General Partner, in its capacity
as the holder of Series E Preferred Units, shall not be entitled to any
further payment; provided that the distribution payable with respect to
the Distribution Period containing the date of final distribution shall be
equal to the greater of (i) the distribution provided in clause (a) of the
first sentence of Section 2(A) or (ii) the distribution determined
pursuant to clause (b) of the first sentence of Section 2(A) for the
preceding Distribution Period. If, upon any liquidation, dissolution or
winding up of the Partnership, the assets of the Partnership, or proceeds
thereof, distributable to the General Partner, in its capacity as the
holder of Series E 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 General Partner, in its capacity
as the holder of such Series E Preferred Units, and the holders of such
other Parity Units ratably in accordance with the respective amounts that
would be payable on such Series E Preferred Units and such other Parity
Units if all amounts payable thereon were paid in full. For the purposes
of this Section 3, (x) a consolidation or merger of the Partnership with
one or more partnerships, limited liability companies, corporations, real
estate investment trusts or other entities and (y) a sale, lease or
conveyance of all or substantially all of the Partnership's property or
business 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 Partnership Units
of any series or class ranking on a parity with or prior to the Series E
Preferred Units upon any liquidation, dissolution or winding up of the
Partnership, after payment shall have been made in full to the General
Partner, in its capacity as the holder of the Series E Preferred Units, as
provided in this Section 3, any other series or class or classes of Junior
Units shall, subject to any respective terms and provisions (if any)
applying thereto, be entitled to receive any and all assets remaining to
be paid or distributed, and the General Partner, in its capacity as the
holder of the Series E Preferred Units, shall not be entitled to share
therein.
4. Redemption Right.
(A) Except as provided in Section 4(B), the Series E Preferred
Units shall not be redeemable prior to the third anniversary of the Issue
Date.
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On and after the third anniversary of the Issue Date, the General Partner
may cause the Partnership to redeem the Series E Preferred Units, in whole
or in part, (x) for Class A Units, subject to the conditions set forth in
paragraph (i) below, or (y) for cash in an amount per Series E Preferred
Unit equal to the Series E Liquidation Preference plus accrued and unpaid
distributions (the "Redemption Price"), in each case subject to the
conditions set forth below.
(i) The Series E Preferred Units shall be redeemed only if the
General Partner shall concurrently therewith redeem an
equivalent number of shares of Series E Preferred Stock for
REIT Shares or cash, as the case may be. Such redemption of
Series E Preferred Units shall occur substantially
concurrently with the redemption by the General Partner of
such Series E Preferred Shares (such date of redemption the
"Redemption Date").
(ii) In the event that the General Partner redeems shares of Series
E Preferred Stock in exchange for REIT Shares, an equivalent
number of Series E Preferred Units shall be converted into a
number of Class A Units equal to (x) the number of REIT Shares
issued by the General Partner in redemption of such shares of
Series E Preferred Stock divided by (y) the Conversion Factor.
(iii) In the event that the General Partner redeems shares of Series
E Preferred Stock for cash (including payments of cash in lieu
of fractional REIT Shares), the Partnership shall redeem a
like number of Series E Preferred Units in exchange for the
amount of cash that the General Partner is required to pay
pursuant to the terms of the Series E Preferred Stock in
connection with such redemption.
(iv) Upon any redemption of Series E Preferred Units, the
Partnership shall pay any accrued and unpaid distributions
with respect to the Series E Preferred Units being redeemed
for any Distribution Period ending on or prior to the
Redemption Date. If the Redemption Date falls after a
Partnership Record Date and prior to the corresponding
Distribution Date, then the General Partner, in its capacity
as the holder of the Series E Preferred Units being redeemed,
shall be entitled to distributions payable on the
corresponding Distribution Date notwithstanding the redemption
of such Series E Preferred Units before such Distribution
Date. Except as provided above, the Partnership shall make no
payment or allowance for unpaid distributions, whether or not
in arrears, on Series E Preferred Units called for redemption.
(v) Any Class A Unit issued upon redemption of the Series E
Preferred Units shall be validly issued, fully paid and
non-assessable.
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(B) In the event that the General Partner is required to
redeem any shares of Series E Preferred Stock pursuant to the terms
thereof, the Partnership shall redeem an equivalent number of Series E
Preferred Units for consideration equal to the consideration payable by
the General Partner upon redemption of such shares of Series E Preferred
Stock.
5. Conversion to Class A Units.
(A) In the event that a holder of Series E Preferred Stock
exercises its right to convert such Series E Preferred Stock into REIT
Shares, then, concurrently therewith, an equivalent number of Series E
Preferred Units shall be automatically converted into a number of Class A
Units equal to (x) the number of REIT Shares issued upon conversion of
such Series E Preferred Shares divided by (y) the Conversion Factor. Any
such conversion will be effective at the same time as the conversion of
Series E Preferred Stock into REIT Shares is effective.
(B) The General Partner, in its capacity as the holder of
Series E Preferred Units that are converted pursuant to this Section 5
effective during the period after a Partnership Record Date and prior to
the opening of business on the corresponding Distribution Date, shall not
be entitled to receive the distribution payable on such Series E Preferred
Units on such Distribution Date notwithstanding such conversion thereof
following the corresponding Partnership Record Date and prior to such
Distribution Date.
6. Ranking. Any class or series of Partnership Units shall be deemed
to rank:
(A) prior to the Series E Preferred Units, as to the payment
of distributions and as to distribution of assets upon liquidation,
dissolution or winding up of the Partnership, if the holders of such class
or series of Partnership Units 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 E Preferred Units;
(B) on a parity with the Series E Preferred Units as to the
payment of distributions and as to the distribution of assets upon
liquidation, dissolution or winding up of the Partnership, whether or not
the distribution rates, distribution payment dates or redemption or
liquidation prices per Partnership Unit be different from those of the
Series E Preferred Units, if the holders of such class or series of
Partnership Units and the Series E 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 Partnership Unit or
liquidation preferences, without preference or priority one over the other
("Parity Units");
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(C) junior to the Series E Preferred Units, as to the payment
of distributions or as to the distribution of assets upon liquidation,
dissolution or winding up of the Partnership, if such class or series of
Partnership Units shall be Junior Units; and
(D) junior to the Series E Preferred Units, as to the payment
of distributions and as to the distribution of assets upon liquidation,
dissolution or winding up of the Partnership, if such class or series of
Partnership Units shall be Fully Junior Units;
7. Voting. Except as required by law, the General Partner, in its
capacity as the holder of the Series E Preferred Units, shall not be
entitled to vote at any meeting of the Partners or for any other purpose
or otherwise to participate in any action taken by the Partnership or the
Partners, or to receive notice of any meeting of the Partners.
8. Restriction on Ownership. The Series E Preferred Units shall be
owned and held solely by the General Partner.
9. General. The rights of the General Partner, in its capacity as
the holder of the Series E Preferred Units, are in addition to and not in
limitation on any other rights or authority of the General partner, in any
other capacity, under the Agreement. In addition, nothing contained in
this Exhibit J shall be deemed to limit or otherwise restrict any rights
or authority of the General Partner under the Agreement, other than in its
capacity as the holder of the Series E Preferred Units.
* * * *
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