<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): February 23, 1999
CAMDEN PROPERTY TRUST
(Exact name of Registrant as specified in its Charter)
Texas 1-12110 76-6088377
(State or other jurisdiction of (Commission file number) (I.R.S. Employer
incorporation or organization) Identification Number)
Three Greenway Plaza, Suite 1300, Houston, Texas 77046
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 354-2500
Not applicable
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On February 23, 1999, Camden Property Trust, a Texas real estate investment
trust ("Camden"), Camden Operating, L.P., a Delaware limited partnership the
general partner of which is an indirect wholly-owned subsidiary of Camden (the
"Operating Partnership"), Belcrest Realty Corporation, a Delaware corporation
("Belcrest"), and Belair Realty Corporation, a Delaware corporation (together
with Belcrest, the "Contributors"), entered into a Contribution Agreement, a
copy of which is filed as an exhibit to this Form 8-K, pursuant to which, among
other things, the Contributors contributed to the Operating Partnership an
aggregate of $100,000,000 in return for an aggregate of 4,000,000 8 1/2% Series
B Cumulative Redeemable Perpetual Preferred Units (the "Series B Units") of
limited partnership interest in the Operating Partnership. The rights,
limitations and preferences of the Series B Units are set forth in First
Amendment to Third Amended and Restated Agreement of Limited Partnership of
Camden Operating, L.P., dated as of February 23, 1999 (the "Amendment"), a copy
of which is filed as an exhibit to this Form 8-K.
The Series B Units will be exchangeable in whole or in part at any time on
or after February 23, 2009 at the option of the holders thereof for 8 1/2%
Series B Cumulative Redeemable Perpetual Preferred Shares of Beneficial Interest
of Camden (the "Series B Shares") at an exchange rate of one Series B Share for
one Series B Unit, subject to adjustment as set forth in the Amendment, and at
certain earlier times pursuant to the terms of the Amendment. The rights,
limitations and preferences of the Series B Shares are set forth in the
Statement of Designation, Preferences and Rights of 8 1/2% Series B Cumulative
Redeemable Perpetual Preferred Shares of Beneficial Interest, the form of which
is filed as an exhibit to this Form 8-K. Camden has granted certain registration
rights to the Contributors relating to Camden's common shares of beneficial
interest that may be issued to the Contributors in an exchange of units pursuant
to a Registration Rights Agreement, dated as of February 23, 1999, among Camden
and the unitholders named therein, a copy of which is filed as an exhibit to
this Form 8-K.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
4.1 Form of Statement of Designation of Series B Cumulative Redeemable
Perpetual Preferred Shares of Beneficial Interest
99.1 Contribution Agreement, dated as of February 23, 1999, by and among
Belcrest Real Estate Corporation, Belair Realty Corporation, Camden
Operating, L.P. and Camden Property Trust
99.2 First Amendment to Third Amended and Restated Agreement of Limited
Partnership of Camden Operating, L.P., dated as of February 23,1999
99.3 Registration Rights Agreement, dated as of February 23, 1999, by
and between Camden Property Trust and the unitholders named therein
99.4 Press Release, dated February 24, 1999
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: March 2, 1999
CAMDEN PROPERTY TRUST
By: /S/ G. STEVEN DAWSON
--------------------------------------------
G. Steven Dawson
Senior Vice President - Finance
Chief Financial Officer, Treasurer and
Secretary
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CAMDEN PROPERTY TRUST
INDEX TO EXHIBITS
EXHIBIT
4.1 Form of Statement of Designation of Series B Cumulative Redeemable
Perpetual Preferred Shares of Beneficial Interest
99.1 Contribution Agreement, dated as of February 23, 1999, by and among
Belcrest Real Estate Corporation, Belair Realty Corporation, Camden
Operating, L.P. and Camden Property Trust
99.2 First Amendment to Third Amended and Restated Agreement of Limited
Partnership of Camden Operating, L.P., dated as of February 23, 1999
99.3 Registration Rights Agreement, dated as of February 23, 1999, by and
between Camden Property Trust and the unitholders named therein
99.4 Press Release, dated February 24, 1999
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EXHIBIT 4.1
FORM OF
STATEMENT OF DESIGNATION
OF
SERIES B CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARES
OF
BENEFICIAL INTEREST
OF
CAMDEN PROPERTY TRUST
ARTICLE ONE
CAMDEN PROPERTY TRUST (the "COMPANY"), pursuant to the provisions of
Section 3.30 of the Texas Real Estate Investment Trust Act (the "TREITA"),
hereby files this Statement of Designation of 8.5% Series B Cumulative
Redeemable Perpetual Preferred Shares of Beneficial Interest of the Company (the
"STATEMENT") prior to the issuance of any shares of 8.5% Series B Cumulative
Redeemable Perpetual Preferred Shares of Beneficial Interest, such series of
unissued shares having been established by a resolution duly adopted by all
necessary action on the part of the Company and the Board of Trust Managers, as
provided for in the Amended and Restated Declaration of Trust (the "DECLARATION
OF TRUST").
ARTICLE TWO
The name of the Company is Camden Property Trust.
ARTICLE THREE
Pursuant to the authority conferred upon the Board of Trust Managers by the
Declaration of Trust and Section 3.30 of the TREITA, the Board of Trust
Managers, pursuant to Section 10.20 of the TREITA, adopted a resolution
establishing the 8.5% Series B Cumulative Redeemable Perpetual Preferred Shares
of Beneficial Interest of the Company and designating the series and fixing and
determining the preferences, limitations, and relative rights thereof, as set
forth in the true and correct copy of the resolution attached hereto as EXHIBIT
A (the "DESIGNATING RESOLUTION").
ARTICLE FOUR
The Designating Resolution was adopted effective as of February 23, 1999.
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ARTICLE FIVE
The Designating Resolution was duly adopted by all necessary action on the
part of the Company.
IN WITNESS WHEREOF, the undersigned officer has executed this Statement
effective as of February 23, 1999.
CAMDEN PROPERTY TRUST
By:
-------------------------------------
Name:
Title:
-------------------------------------
Notary Public, State of Texas
-------------------------------------
Printed Name of Notary
My Commission Expires:
-------------------------------------
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EXHIBIT A
DESIGNATING RESOLUTION
BOARD OF TRUST MANAGERS
CAMDEN PROPERTY TRUST
FEBRUARY 23, 1999
AUTHORIZATION OF SERIES A CUMULATIVE CONVERTIBLE PREFERRED SHARES OF BENEFICIAL
INTEREST
WHEREAS, the Board of Trust Managers of Camden Property Trust (the
"COMPANY") has deemed it to be in the best interest of the Company and its
shareholders for the Company to establish a series of preferred shares pursuant
to the authority granted to the Board of Trust Managers in the Amended and
Restated Declaration of Trust (the "DECLARATION OF TRUST") of the Company:
NOW, THEREFORE, BE IT RESOLVED, that, pursuant to the authority vested in
the Board of Trust Managers by the Declaration of Trust, a series of preferred
shares is hereby established, and the terms of the same shall be as follows:
SECTION 1. DESIGNATION AND NUMBER. A series of Preferred Shares of
Beneficial Interest, designated the "8.5% Series B Cumulative Redeemable
Perpetual Preferred Shares of Beneficial Interest" (the "SERIES B PREFERRED
SHARES") is hereby established. The number of shares of Beneficial Interest of
Series B Preferred Shares shall be 4,000,000.
SECTION 2. RANK. The Series B Preferred Shares will, with respect to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Company, or both, rank senior to all classes or series of
Common Shares (as defined in the Declaration of Trust) and to all classes or
series of equity securities of the Company now or hereafter authorized, issued
or outstanding, other than any class or series of equity securities of the
Company expressly designated as ranking on a parity with (including, without
limitation, the Series A Cumulative Convertible Preferred Shares of Beneficial
Interest of the Company provided for in the Company's Statement of Designation
filed with the County Clerk of Harris County, Texas, on April 8,1998 (the
"Series A Preferred Shares")) or senior to the Series B Preferred Shares as to
distributions and rights upon voluntary or involuntary liquidation, winding-up
or dissolution of the Company. For purposes of this Designating Resolution, the
term "PARITY PREFERRED Shares" shall be used to refer to any class or series of
equity securities of the Company now or hereafter authorized, issued or
outstanding expressly designated by the Company to rank on a parity with Series
B Preferred Shares with respect to distributions and rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the Company including,
without limitation, the Series A Preferred Shares. The term "EQUITY SECURITIES"
does not include convertible debt securities (or other evidences of
indebtedness), which will rank senior to the Series B Preferred Shares;
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provided, however, the term "EQUITY SECURITIES" shall include any equity
securities issued upon the conversion of convertible debt securities into equity
when issued.
SECTION 3. DISTRIBUTIONS. (a) PAYMENT OF DISTRIBUTIONS. Subject to the
rights of holders of Parity Preferred Shares and holders of equity securities
ranking senior to the Series B Preferred Shares, holders of Series B Preferred
Shares shall be entitled to receive, when, as and if declared by the Board of
Trust Managers of the Company, out of funds legally available for the payment of
distributions, cumulative preferential cash distributions at the rate per annum
of 8.50% of the $25.00 liquidation preference per Series B Preferred Share. Such
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 and not calendar year quarters) in arrears, not later
than the third calendar day after March 31, June 30, September 30 and December
31 of each year commencing on March 31, 1999 and, (ii) in the event of a
redemption, on the redemption date (each a "PREFERRED SHARES DISTRIBUTION
PAYMENT DATE"). The amount of the distribution payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months and for any
period shorter than a full quarterly period for which distributions are
computed, the amount of the distribution payable will be computed on the basis
of the actual number of days elapsed in such period. If any date on which
distributions are to be made on the Series B Preferred Shares is not a Business
Day (as defined herein), then payment of the distribution to be made on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series B Preferred Shares
will be made to the holders of record of the Series B Preferred Shares on the
relevant record dates to be fixed by the Board of Trust Managers of the Company,
which record dates shall in no event exceed 15 Business Days prior to the
relevant Preferred Shares Distribution Payment Date (each a "DISTRIBUTION RECORD
DATE"). Notwithstanding anything to the contrary set forth herein, each share of
Series B Preferred Shares shall also continue to accrue all accrued and unpaid
distributions, whether or not declared, up to the exchange date on any Series B
Preferred Unit (as defined in the Third Amended and Restated Agreement of
Limited Partnership of Camden Operating, L.P. (the "PARTNERSHIP AGREEMENT"), as
amended through the date hereof) validly exchanged into such share of Series B
Preferred Shares in accordance with the provisions of such Partnership
Agreement.
The term "BUSINESS DAY" shall mean each day, other than a Saturday or a
Sunday, which is not a day on which banking institutions in Texas are authorized
or required by law, regulation or executive order to close.
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(b) DISTRIBUTIONS CUMULATIVE. Distributions on the Series B Preferred
Shares will accrue whether or not the terms and provisions of any agreement of
the Company, including any agreement relating to its indebtedness at any time
prohibit the current payment of distributions, whether or not the Company has
earnings, whether or not there are funds legally available for the payment of
such distributions and whether or not such distributions are authorized or
declared. Accrued but unpaid distributions on the Series B Preferred Shares will
accumulate as of the Preferred Shares Distribution Payment Date on which they
first become payable. Distributions on account of arrears for any past
distribution periods may be declared and paid at any time, without reference to
a regular Preferred Shares Distribution Payment Date to holders of record of the
Series B Preferred Shares on the record date fixed by the Board of Trust
Managers 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
Shares is 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 Common Shares or any class or series of other shares of the
Company ranking junior as to the payment of distributions or rights upon
voluntary or involuntary dissolution, liquidation or winding up of the
Partnership to the Series B Preferred Shares (such Common Shares or other junior
shares, collectively, "JUNIOR SHARES"), 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 Shares, any Parity Preferred Shares or
any Junior Shares, unless, in each case, all distributions accumulated on all
Series B Preferred Shares and all classes and series of outstanding Parity
Preferred Shares have been paid in full. The foregoing sentence will not
prohibit (i) distributions payable solely in Junior Shares, (ii) the conversion
of Series B Preferred Shares, Junior Shares or Parity Preferred Shares into
shares of the Company ranking junior to the Series B Preferred Shares as to
distributions, and (iii) purchase by the Company of such Series B Preferred
Shares, Parity Preferred Shares or Junior Shares pursuant to Article Nineteen of
the Declaration of Trust to the extent required to preserve the Company's status
as a real estate investment trust.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series B Preferred Shares, all distributions authorized and
declared on the Series B Preferred Shares and all classes or series of
outstanding Parity Preferred Shares with respect to distributions shall be
authorized and declared so that the amount of distributions authorized and
declared per Series B Preferred Share and such other classes or series of Parity
Preferred Shares shall in all cases bear to each other the same ratio that
accrued distributions per Series B Preferred Share and such other classes or
series of Parity Preferred Shares (which shall not include any accumulation in
respect of unpaid distributions for prior distribution periods if such class or
series of Parity Preferred Shares do not have cumulative distribution rights)
bear to each other.
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(e) NO FURTHER RIGHTS. Holders of Series B Preferred Shares 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 4. LIQUIDATION PREFERENCE. (a) PAYMENT OF LIQUIDATING
DISTRIBUTIONS,. Subject to the rights of holders of Parity Preferred Shares with
respect to rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and subject to equity securities ranking senior to the
Series B Preferred Shares with respect to rights upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Company, the holders
of Series B Preferred Shares shall be entitled to receive out of the assets of
the Company legally available for distribution or the proceeds thereof, after
payment or provision for debts and other liabilities of the Company, but before
any payment or distributions of the assets shall be made to holders of Common
Shares or any other class or series of shares of the Company that ranks junior
to the Series B Preferred Shares as to rights upon liquidation, dissolution or
winding-up of the Company, an amount equal to the sum of (i) a liquidation
preference of $25 per Series B Preferred Share, and (ii) an amount equal to any
accumulated and unpaid distributions thereon, whether or not declared, to the
date of payment. In the event that, upon such voluntary or involuntary
liquidation, dissolution or winding-up, there are insufficient assets to permit
full payment of liquidating distributions to the holders of Series B Preferred
Shares and any Parity Preferred Shares as to rights upon liquidation,
dissolution or winding-up of the Company, all payments of liquidating
distributions on the Series B Preferred Shares and such Parity Preferred Shares
shall be made so that the payments on the Series B Preferred Shares and such
Parity Preferred Shares shall in all cases bear to each other the same ratio
that the respective rights of the Series B Preferred Shares and such other
Parity Preferred Shares (which shall not include any accumulation in respect of
unpaid distributions for prior distribution periods if such Parity Preferred
Shares do not have cumulative distribution rights) upon liquidation, dissolution
or winding-up of the Company bear to each other.
(b) NOTICE. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Company, 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 Shares at the respective addresses of such holders as the
same shall appear on the share transfer records of the Company.
(c) NO FURTHER RIGHTS. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series B Preferred
Shares will have no right or claim to any of the remaining assets of the
Company.
(d) 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
<PAGE> 11
or assets of the Company to, or the consolidation or merger or other business
combination of the Company with or into, any Company, trust or other entity (or
of any Company, trust or other entity with or into the Company) or a statutory
share exchange shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Company.
SECTION 5. OPTIONAL REDEMPTION. (a) RIGHT OF OPTIONAL REDEMPTION. The
Series B Preferred Shares may not, subject to SECTION 7 hereof, be redeemed
prior to February 23, 2004. On or after such date, the Company shall have the
right to redeem the Series B Preferred Shares, in whole or in part, at any time
or from time to time, upon not less than 30 nor more than 60 days' written
notice, at a redemption price, payable in cash, equal to $25 per Series B
Preferred Share plus accumulated and unpaid distributions, whether or nor
declared, to the date of redemption. If fewer than all of the outstanding shares
of Series B Preferred Shares are to be redeemed, the Series B Preferred Shares
to be redeemed shall be selected pro rata (as nearly as practicable without
creating fractional units).
(b) LIMITATION ON REDEMPTION. Subject to SECTION 7 hereof, the Company may
not redeem fewer than all of the outstanding Series B Preferred Shares unless
all accumulated and unpaid distributions have been paid on all outstanding
Series B Preferred Shares for all quarterly distribution periods terminating on
or prior to the date of redemption.
(c) PROCEDURES FOR REDEMPTION. (i) Notice of redemption will be (i) faxed,
and (ii) mailed by the Company, postage prepaid, not less than thirty (30) nor
more than sixty (60) days prior to the redemption date, addressed to the
respective holders of record of the Series B Preferred Shares to be redeemed at
their respective addresses as they appear on the transfer records of the
Company. No failure to give or defect in such notice shall affect the validity
of the proceedings for the redemption of any Series B Preferred Shares except as
to the holder to whom such notice was defective or not given. In addition to any
information required by law or by the applicable rules of any exchange upon
which the Series B Preferred Shares may be listed or admitted to trading, each
such notice shall state: (i) the redemption date, (ii) the redemption price,
(iii) the number of shares of Series B Preferred Shares to be redeemed, (iv) the
place or places where such shares of Series B Preferred Shares are to be
surrendered for payment of the redemption price, (v) that distributions on the
Series B Preferred Shares to be redeemed will cease to accumulate on such
redemption date and (vi) that payment of the redemption price and any
accumulated and unpaid distributions will be made upon presentation and
surrender of such Series B Preferred Shares. If fewer than all of the shares of
Series B Preferred Shares held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of shares of Series B
Preferred Shares held by such holder to be redeemed.
(ii) If the Company gives a notice of redemption in respect of Series B
Preferred Shares (which notice will be irrevocable) then, by 12:00 noon, Houston
time, on the redemption date, the Company will deposit irrevocably in trust for
the benefit of the Series B Preferred Shares being redeemed funds sufficient to
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pay the applicable redemption price, plus any accumulated and unpaid
distributions, whether or not declared, if any, on such shares to the date fixed
for redemption, without interest, and will give irrevocable instructions and
authority to pay such redemption price and any accumulated and unpaid
distributions, if any, on such shares to the holders of the Series B Preferred
Shares upon surrender of the certificate evidencing the Series B Preferred
Shares by such holders at the place designated in the notice of redemption. If
fewer than all Series B Preferred Shares evidenced by any certificate is being
redeemed, a new certificate shall be issued upon surrender of the certificate
evidencing all Series B Preferred Shares, evidencing the unredeemed Series B
Preferred Shares without cost to the holder thereof. On and after the date of
redemption, distributions will cease to accumulate on the Series B Preferred
Shares or portions thereof called for redemption, unless the Company defaults in
the payment thereof. If any date fixed for redemption of Series B Preferred
Shares is not a Business Day, then payment of the redemption price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day falls in the next calendar year, such payment will be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If payment of the
redemption price or any accumulated or unpaid distributions in respect of the
Series B Preferred Shares i s improperly withheld or refused and not paid by the
Company, distributions on such Series B Preferred Shares will continue to
accumulate from the original redemption date to the date of payment, in which
case the actual payment date will be considered the date fixed for redemption
for purposes of calculating the applicable redemption price and any accumulated
and unpaid distributions.
(d) STATUS OF REDEEMED SHARES. Any Series B Preferred Shares that shall at
any time have been redeemed shall after such redemption, have the status of
authorized but unissued Preferred Shares, without designation as to class or
series until such shares are once more designated as part of a particular class
or series by the Board of Trust Managers.
SECTION 6. VOTING RIGHTS. (a) GENERAL. Holders of the Series B Preferred
Shares will not have any voting rights, except as set forth below.
(b) RIGHT TO ELECT TRUST MANAGERS. (i) If at any time distributions shall
be in arrears with respect to six (6) prior quarterly distribution periods
(including quarterly periods on the Series B Preferred Units prior to the
exchange into Series B Preferred Shares), whether or not consecutive, and shall
not have been paid in full (a "PREFERRED DISTRIBUTION DEFAULT"), the authorized
number of members of the Board of Trust Managers shall automatically be
increased by two (2) and the holders of record of such Series B Preferred
Shares, voting together as a single class with the holders of each class or
series of Parity Preferred Shares upon which like voting rights have been
conferred and are exercisable, will be entitled to fill the vacancies so created
by electing two additional directors to serve on the Company's Board of Trust
Managers (the "PREFERRED SHARES TRUST MANAGERS") at a special meeting called in
<PAGE> 13
accordance with SECTION 6(B)(II) at the next annual meeting of shareholders, and
at each subsequent annual meeting of shareholders or special meeting held in
place thereof, until all such distributions in arrears and distributions for the
current quarterly period on the Series B Preferred Shares and each such class or
series of Parity Preferred Shares have been paid in full.
(ii) At any time when such voting rights shall have vested, a proper
officer of the Company may, and upon written request of holders of record of at
least ten percent (10%) of the outstanding Series B Preferred Shares (addressed
to the Secretary at the principal office of the Company) shall call or cause to
be called a special meeting of the holders of Series B Preferred Shares and all
the series of Parity Preferred Shares upon which like voting rights have been
conferred and are exercisable (collectively, the "PARITY SECURITIES"); such call
to be made by special notice similar to that provided in the By-laws of the
Company for a special meeting of the shareholders or as required by law. If any
such special meeting required to be called as above provided shall not be called
within twenty (20) days after receipt of any such request, then any holder of
the Series B Preferred Shares may call such meeting upon the notice above
provided, and for that purpose shall have access to the shareholder records of
the Company. The record date for determining holders of the Parity Securities
entitled to notice of and to vote at such special meeting will be the close of
business on the third Business Day preceding the day on which such notice is
mailed. At any such special meeting, all of the holders of the Parity
Securities, by a vote of at least the minimum portion of Parity Securities
permitted under TREITA, voting together as a single class without regard to
series will be entitled to elect two directors on the basis of one vote per
$25.00 of liquidation preference to which such Parity Securities are entitled by
their terms (excluding amounts in respect of accumulated and unpaid dividends)
and not cumulatively. The holder or holders of one-third of the Parity
Securities then outstanding, present in person or by proxy, will constitute a
quorum for the election of the Preferred Shares Trust Managers except as
otherwise provided by law. Notice of all meetings at which holders of the Series
B Preferred Shares shall be entitled to vote will be given to such holders at
their addresses as they appear in the transfer records. At any such meeting or
adjournment thereof in the absence of a quorum, subject to the provisions of any
applicable law, a majority of the holders of the Parity Securities present in
person or by proxy shall have the power to adjourn the meeting for the election
of the Preferred Shares Trust Managers, without notice other than an
announcement at the meeting, until a quorum is present. If a Preferred
Distribution Default shall terminate after the notice of a special meeting has
been given but before such special meeting has been held, the Company shall, as
soon as practicable after such termination, mail or cause to be mailed notice of
such termination to holders of the Series B Preferred Shares that would have
been entitled to vote at such special meeting.
(iii) If and when all accumulated distributions and the distribution for
the current distribution period on the Series B Preferred Shares shall have been
paid in full or a sum sufficient for such payment is irrevocably deposited in
trust for payment, the holders of the Series B Preferred Shares shall be
<PAGE> 14
divested of the voting rights set forth in SECTION 6(B) herein (subject to
revesting in the event of each and every Preferred Distribution Default) and, if
all distributions in arrears and the distributions for the current distribution
period have been paid in full or set aside for payment in full on all other
classes or series of Parity Preferred Shares upon which like voting rights have
been conferred and are exercisable, the term and office of each Preferred Shares
Trust Manager so elected shall terminate. Any Preferred Shares Trust Manager may
be removed at any time with or without cause by the vote of, and shall not be
removed otherwise than by the vote of, the holders of record of a majority of
the outstanding Series B Preferred Shares when they have the voting rights set
forth in SECTION 6(B) (voting separately as a single class with all other
classes or series of Parity Preferred Shares upon which like voting rights have
been conferred and are exercisable). So long as a Preferred Distribution Default
shall continue, any vacancy in the office of a Preferred Shares Trust Manager
may be filled by written consent of the Preferred Shares Trust Manager remaining
in office, or if none remains in office, by a vote of the holders of record of a
majority of the outstanding Series B Preferred Shares when they have the voting
rights set forth in SECTION 6(B) (voting separately as a single class with all
other classes or series of Parity Preferred Shares upon which like voting rights
have been conferred and are exercisable). The Preferred Shares Trust Manager
shall each be entitled to one vote per director on any matter.
(c) CERTAIN VOTING RIGHTS. Notwithstanding anything to the contrary
contained in the Declaration of Trust, so long as any Series B Preferred Shares
remains outstanding, the Company shall not, without the affirmative vote of the
holders of at least two-thirds of the Series B Preferred Shares outstanding at
the time: (i) designate or create, or increase the authorized or issued amount
of, any class or series of shares ranking prior to the Series B Preferred Shares
with respect to payment of distributions or rights upon liquidation, dissolution
or winding-up or reclassify any authorized shares of the Company into any such
shares, or create, authorize or issue any obligations or security convertible
into or evidencing the right to purchase any such shares, (ii) designate or
create, or increase the authorized or issued amount of, any Parity Preferred
Shares or reclassify any authorized shares of the Company into any such shares,
or create, authorize or issue any obligations or security convertible into or
evidencing the right to purchase any such shares, but only to the extent such
Parity Preferred Shares is issued to an affiliate of the Company, or (iii)
either (A) consolidate, merge into or with, or convey, transfer or lease its
assets substantially as an entirety, to any company or other entity, or (B)
amend, alter or repeal the provisions of the Company's Declaration of Trust
(including this Designating Resolution) or By-laws, whether by merger,
consolidation or otherwise, in each case that would materially and adversely
affect the powers, special rights, preferences, privileges or voting power of
the Series B Preferred Shares or the holders thereof; PROVIDED, HOWEVER, that
with respect to the occurrence of a merger, consolidation or a sale or lease of
all of the Company's assets as an entirety, so long as (a) the Company is the
surviving entity and the Series B Preferred Shares remains outstanding with the
terms thereof unchanged, or (b) the resulting, surviving or transferee entity is
a corporation or real estate investment trust organized under the laws of any
state and substitutes the Series B Preferred Shares for other preferred shares
<PAGE> 15
having substantially the same terms and same rights as the Series B Preferred
Shares, including with respect to distributions, voting rights and rights upon
liquidation, dissolution or winding-up, then the consent of the holders of the
Series B Preferred Shares shall not be required with respect thereto and the
occurrence of any such event shall not be deemed to materially and adversely
affect such rights, privileges or voting powers of the holders of the Series B
Preferred Shares and provided further that any increase in the amount of
authorized Preferred Shares or the creation or issuance of any other class or
series of Preferred Shares, or any increase in an amount of authorized shares of
each class or series, in each case ranking either (a) junior to the Series B
Preferred Shares with respect to payment of distributions and the distribution
of assets upon liquidation, dissolution or winding-up, or (b) on a parity with
the Series B Preferred Shares with respect to payment of distributions or the
distribution of assets upon liquidation, dissolution or winding-up to the extent
such Preferred Shares is not issued to an affiliate of the Company, shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers.
SECTION 7. NO CONVERSION RIGHTS. The holders of the Series B Preferred
Shares shall not have any rights to convert such shares into shares of any other
class or series of stock or into any other securities of, or interest in, the
Company.
SECTION 8. NO SINKING FUND. No sinking fund shall be established for the
retirement or redemption of Series B Preferred Shares.
SECTION 9. NO PREEMPTIVE RIGHTS. No holder of the Series B Preferred Shares
of the Company shall, as such holder, have any preemptive rights to purchase or
subscribe for additional shares of the Company or any other security of the
Company which it may issue or sell.
SECTION 10. DECLARATION OF TRUST - ARTICLE THIRTEEN. The Series B Preferred
Shares are deemed t o be "Shares" for purposes of Article Thirteen of the
Declaration of Trust; PROVIDED, HOWEVER, that in no event shall the provisions
contained in such Article Thirteen (including, without limitation, subparagraph
(d) thereof) limit any obligations of the Company or rights of the holders of
Series B Preferred Shares pursuant to this Designating Resolution.
RATIFICATION AND AUTHORIZATION
RESOLVED, that any and all acts and deeds of any officer or Trust Manager
of the company taken prior to the date hereof on behalf of the Company with
regard to the foregoing resolutions are hereby approved, ratified and confirmed
in all respects as and for the acts and deeds of the Company.
<PAGE> 16
FURTHER RESOLVED, that the officers of the Company be, and each of them
hereby is, severally and without the necessity for joinder of any other person,
authorized, empowered and directed to execute and deliver any and all such
further documents and instruments and to do and perform any and all such further
acts and deeds that may be necessary or advisable to effectuate and carry out
the purposes and intents of the foregoing resolutions, including, but not
limited to, the filing of a statement with the County Clerk of Harris County,
Texas, setting forth the designations, preferences, limitations and rights of
Series A Preferred Shares pursuant to Section 3.30 of TREITA, all such actions
to be performed in such manner, and all such documents and instruments to be
executed and delivered in such form, as the officer performing or executing the
same shall approve, the performance or execution thereof by such officer to be
conclusive evidence of the approval thereof by such officer and by the Board of
Trust Managers.
<PAGE> 17
Exhibit 99.1
CONTRIBUTION AGREEMENT
BY AND AMONG
BELCREST REALTY CORPORATION AND BELAIR REAL ESTATE CORPORATION
AND
CAMDEN OPERATING, L.P. AND C AMDEN PROPERTY TRUST
Dated: As of February 23, 1999
<PAGE> 18
CONTRIBUTION AGREEMENT
Contribution Agreement (this "AGREEMENT") made as of the 23rd day of
February, 1999 ("AGREEMENT Date"), by and among BELCREST REALTY CORPORATION, a
Delaware corporation ("BELCREST"), BELAIR REAL ESTATE CORPORATION, a Delaware
corporation ("BELAIR"; and together with Belcrest, the "CONTRIBUTORS"), CAMDEN
OPERATING, L.P., a Delaware limited partnership ("OPERATING PARTNERSHIP") and
CAMDEN PROPERTY TRUST, a Texas real estate investment trust ("Company").
WITNESSETH:
WHEREAS, Contributors desire to contribute to Operating Partnership cash in
return for Preference Units in Operating Partnership on the terms and conditions
herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the meanings set forth below:
"AGREEMENT" has the meaning set forth in the initial paragraph hereof.
"AGREEMENT DATE" has the meaning set forth in the initial paragraph
hereof.
"AGREEMENT OF LIMITED PARTNERSHIP" means the Third Amended and Restated
Agreement of Limited Partnership of Operating Partnership, dated as of April 15,
1997, as amended from time to time.
"AMENDMENT" means the First Amendment to Third Amended and Restated
Agreement of Limited Partnership substantially in the form attached hereto as
Exhibit A.
"ARTICLES SUPPLEMENTARY" means the Statement of Designation of the
Company substantially in the form attached hereto as EXHIBIT B.
"BELAIR" means Belair Real Estate Corporation.
"BELCREST" means Belcrest Realty Corporation.
"BYLAWS" means the Second Amended and Restated Bylaws of the Company,
as amended from time to time.
"BROKER" has the meaning set forth in PARAGRAPH 10.
<PAGE> 19
"CAMDEN USA" means Camden USA, Inc., a Delaware corporation.
"CLOSING" has the meaning set forth in PARAGRAPH 6(A).
"CHARTER" means the Amended and Restated Declaration of Trust of Camden
Property Trust, as amended and restated from time to time including, as amended
by the Articles Supplementary.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" has the meaning set forth in the initial paragraph hereof.
"CONTRIBUTION AMOUNT" means $100,000,000, such amount to be contributed
severally $57,000,000 by Belair and $43,000,000 by Belcrest.
"CONTRIBUTORS" has the meaning set forth in the initial paragraph hereof.
"CONTRIBUTORS' CLOSING DOCUMENTS" has the meaning set forth in PARAGRAPH
6(C).
"EXCHANGE DATE" means, with respect to any Preferred Unit, the date on
which the exchange of such Preferred Unit for a Preferred Share shall occur in
accordance with the Agreement of Limited Partnership.
"ERISA" means the Employee Retirement Income Securities Act of 1974, as
amended.
"GAAP" means generally accepted accounting principles consistently applied
as in effect as of the date of the financial statements to which such principles
are applied.
"GOVERNING DOCUMENTS" means, with respect to (i) a limited partnership,
such limited partnership's certificate of limited partnership and the agreement
of limited partnership, and any amendments or modifications of any of the
foregoing; (ii) a corporation, such corporation's articles or certificate of
incorporation, by-laws and any applicable authorizing resolutions, and any
amendments or modifications of any of the foregoing; (iii) a limited liability
company, such limited liability company's articles or certificate of
organization, by-laws and operating agreement or agreement of limited liability
company; and (iv) a real estate investment trust, such trust's declaration of
trust, by-laws and any applicable authorizing resolutions, and any amendments or
modifications of any of the foregoing.
"GP" means CPT-GP, Inc., a Delaware corporation.
<PAGE> 20
"INDEBTEDNESS" means, with respect to any person or entity: (i) all
indebtedness, obligations or other liabilities of such person or entity or for
borrowed money (including indebtedness, obligations and liabilities owing to any
affiliate of such person or entity); (ii) all indebtedness, obligations or other
liabilities of such person or entity evidenced by securities or other similar
instruments, including, without limitation, any obligation, contingent or
otherwise, to purchase or repurchase securities or similar instruments at some
future time; (iii) all reimbursement obligations and other liabilities of such
person or entity with respect to letters of credit, banker's acceptances,
financial guaranties and other similar financing arrangements issued for such
person's or entity's account; (iv) all obligations of such person or entity to
pay the deferred purchase price of property or services; (v) all indebtedness,
obligations or other liabilities of such person or entity or others secured by a
lien on any asset of such person or entity, whether or not such indebtedness,
obligations or liabilities are assumed by, or are a personal liability of, such
person or entity; (vi) all indebtedness, obligations or other liabilities of
such person or entity (including contingent liabilities for the costs of
premature termination calculated as though such termination occurred on the date
of determination) in respect of interest rate hedging agreements and foreign
currency exchange agreements of which such person or entity is a party; (vii)
all indebtedness, obligations and other liabilities of any unconsolidated
subsidiary in which such person or entity is a general partner or for which such
person or entity is primarily or secondarily liable, all without regard to any
contribution, reimbursement or indemnity rights of such person or entity; (viii)
the applicable percentage of nonrecourse indebtedness owed by any unconsolidated
subsidiary of such person or entity; and (ix) all indebtedness obligations or
other liabilities of such person or entity in connection with the sale and
leaseback of any property of such person or entity.
"MANAGER" means Boston Management and Research, a Massachusetts business
trust.
"NET ASSET VALUE" means, with respect to any fiscal quarter of the
Partnership, (A) the product of (1) the Net Operating Income for such quarter
(as determined based upon the financial information of the Operating Partnership
provided by the Company pursuant to Section 4(f) hereof) multiplied by four and
(2) eleven, less (B) all Indebtedness of the Partnership.
"NET OPERATING INCOME" means, with respect to any fiscal quarter of the
Partnership, all cash received by the Partnership from whatever source
(excluding the proceeds of any Capital Contributions and any capital
transactions (e.g., refinancings, sales of assets, casualty or condemnation))
less the aggregate of the following: (i) all interest payments in respect of
Partnership Indebtedness made during such quarter by the Partnership; and (ii)
all operating expenses made by the Partnership during such quarter.
<PAGE> 21
"OPERATING PARTNERSHIP" has the meaning set forth in the initial paragraph
hereof.
"OPERATING PARTNERSHIP'S CLOSING DOCUMENTS" has the meaning set forth in
PARAGRAPH 6(B).
"PARTNER" has the meaning ascribed to such term in the Agreement of Limited
Partnership.
"PERSON" means a natural person, partnership (whether general or limited),
trust, estate, association, corporation, limited liability company,
unincorporated organization, custodian, nominee or any other individual or
entity in its own or representative capacity.
"PREFERENCE UNITS" means Series B Preferred Units as such term is defined
in the Agreement of Limited Partnership.
"PREFERRED SHARES" means the Company's 8.5% Series B Cumulative Redeemable
Preferred Shares of Beneficial Interest, par value $.01 per share, with the
terms and provisions set forth in the Articles Supplementary.
"PTP" means a "publicly traded partnership" within the meaning of Section
7704 of the Code.
"REGISTRATION RIGHTS AGREEMENT" has the meaning set forth in PARAGRAPH 6(B)
(IV) hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSIDIARY" means with respect to any Person, any corporation,
partnership, limited liability company, joint venture or other entity of which a
majority of (i) voting power of the voting equity securities or (ii) the
outstanding equity interests, is owned, directly or indirectly, by such Person.
"US$" means United States dollars, lawful money of the United States of
America.
2. CONTRIBUTION OF CASH. Subject to the terms and provisions of this
Agreement, Belcrest and Belair each hereby agrees to contribute to Operating
Partnership the Contribution Amount on the date of the Closing in consideration
for $43,000,000 and $57,000,000, respectively, Preference Units in Operating
Partnership. Subject to the terms and provisions of this Agreement, Operating
Partnership hereby agrees to accept the Contribution Amount and to issue to
Contributors 1,720,000 and 2,280,000, respectively, Preference Units in exchange
therefor.
<PAGE> 22
3. CONDITIONS TO CLOSING. (a) CONDITIONS TO OPERATING PARTNERSHIP'S AND
COMPANY'S Obligations. Operating Partnership's and Company's obligations under
this Agreement to accept the Contribution Amount, provide Contributors with
Preference Units and otherwise consummate the transactions contemplated herein
are subject to the satisfaction (or waiver in writing by Operating Partnership
and Company) of the following conditions on or before the Closing:
(i) No temporary restraining order or preliminary or permanent injunction
or any court or administrative agency of competent jurisdiction
prohibiting the consummation of the transactions contemplated herein
shall be in effect.
(ii) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Contributors contained in this Agreement shall be true
and correct in all material respects on the date of the Closing with
the same effect as though made on the date of the Closing.
(iii) PERFORMANCE OF AGREEMENT. Contributors shall have performed, in all
material respects, all of its covenants, agreements and obligations
required by this Agreement to be performed or complied with by it
prior to or at the Closing, including, without limitation, delivery of
the Contribution Amount.
(iv) DELIVERY OF CLOSING DOCUMENTS. Operating Partnership and Company shall
have received the Contributors' Closing Documents.
In the event that for any reason any of the conditions set forth in this
PARAGRAPH 3(A) or elsewhere in this Agreement are not satisfied or waived by
Operating Partnership and Company at or prior to the Closing, at Operating
Partnership's or Company's option, this Agreement shall be terminated and
Operating Partnership, Company and Contributors shall be released from their
obligations under this Agreement and none of Operating Partnership, Company or
Contributors shall have any further liability hereunder.
(b) CONDITIONS TO CONTRIBUTORS' OBLIGATIONS. Contributors' obligations
under this Agreement to deliver the Contribution Amount and otherwise consummate
the transactions contemplated herein are subject to the satisfaction (or waiver
in writing by Contributors) of the following conditions on or before the
Closing:
(i) No temporary restraining order or preliminary or permanent injunction
or any court or administrative agency of competent jurisdiction
prohibiting the consummation of the transactions contemplated herein
shall be in effect.
(ii) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Operating Partnership and Company contained in this
Agreement shall be true and correct in all material respects on the
date of the Closing with the same effect as though made on the date of
the Closing.
<PAGE> 23
(iii) PERFORMANCE OF AGREEMENT. Operating Partnership and Company shall have
performed, in all material respects, all of their respective
covenants, agreements and obligations required by this Agreement to be
performed or complied with by it prior to or at the Closing.
(iv) DELIVERY OF CLOSING DOCUMENTS. Contributors shall have received the
Operating Partnership's Closing Documents.
In the event that for any reason any of the conditions set forth in this
PARAGRAPH 3(B) or elsewhere in this Agreement are not satisfied or waived by
Contributors at or prior to the Closing, at Contributors' option, this Agreement
shall be terminated and Contributors, Operating Partnership and Company shall be
released from their obligations under this Agreement and none of Contributors,
Operating Partnership or Company shall have any further liability hereunder.
4. COVENANTS. (a) On the Exchange Date, Company shall issue Preferred
Shares in a number equal to the number of Preferred Shares into which the
Preference Units are exchangeable pursuant to the terms of the Agreement of
Limited Partnership. Upon consummation of such exchange in accordance with the
terms of the Agreement of Limited Partnership, and issuance in accordance with
the Charter, the Preferred Shares shall be validly issued, fully paid and
non-assessable pursuant to the Articles Supplementary.
(b) Operating Partnership covenants to notify holders of Preference Units
promptly in the event Company or any Subsidiary of Company anticipates or
realizes either that (i) the amount of Operating Partnership's assets
constituting "stock and securities" within the meaning of Section 351(e)(1) of
the Code will equal 14% or more of Operating Partnership's total assets or (ii)
there is a material increase in the amount of Operating Partnership's assets
constituting "stock and securities" if immediately preceding such material
increase the amount of Operating Partnership assets constituting "stock or
securities" within the meaning of Section 351(e)(1) of the Code equaled 14% or
more of the Operating Partnership's total assets.
(c) Company agrees that, from and after January 1, 2000, it will notify
holders of Preference Units promptly in the event that Company or any Subsidiary
of Company takes the position that Operating Partnership is, or upon
consummation of an identified event in the immediate future will be, a PTP.
(d) Through the end of 1999, Operating Partnership: (i) shall take all
actions reasonably available to it under the Agreement of Limited Partnership as
presently in effect to avoid treatment as a PTP; and (ii) shall at all times
satisfy the private placement safe harbor of either (a) Treasury Regulation
Section 1.7704-1(h) (taking into account any person treated as a partner under
Treasury Regulation Section 1.7704-1(h)(3)) and substituting "90" for "100", or
<PAGE> 24
(b) Notice 88-75 (1988-2 C.B. 386) taking into account any person treated as a
partner within the meaning of Notice 88-75 (including each person indirectly
owning an interest through a partnership, a grantor trust, or an S corporation)
and substituting "400" for "500". To the extent that the Operating Partnership's
covenant under the preceding sentence is pursuant to clause (b) thereof, the
Operating Partnership further (A) represents that it (i) was actively engaged in
an activity before December 4, 1995, (ii) did not add a substantial new line of
business after December 4, 1995 and (iii) has no plan or intention to add a
substantial new line of business and (B) covenants that it shall (i) not add a
substantial new line of business within the meaning of Section 1.7704-1(1)(3)
prior to January 1, 2000 and (ii) shall promptly provide notice to the holders
of the Preference Units in the event that the Operating Partnership plans or
intends to add a substantial new line of business at any time after January 1,
2000.
(e) For each taxable year, Company will promptly provide notice to the
holders of the Preference Units in the event Company or any Subsidiary of
Company anticipates or realizes that less than 90% of the gross income of
Operating Partnership for such taxable year will or likely will constitute
"qualifying income" within the meaning of Section 7704(d) of the Code.
(f) Operating Partnership covenants that it shall deliver to holders of
Preference Units the following:
(i) as soon as available, but in no event later than five (5) business
days following the date on which Company files its annual report in
respect of a fiscal year on Form 10-K, or such other applicable form
("Form 10-K"), with the Securities and Exchange Commission (the
"COMMISSION") (or, in the event that Operating Partnership is required
under rules and regulations promulgated by the Commission to file with
the Commission a Form 10-K separate from Company's Form 10-K, five (5)
business days after the filing of such report by Operating Partnership
with the Commission), Operating Partnership's summary consolidated
balance sheet and summary income statement for such fiscal year
prepared and certified by the Company;
(ii) as soon as available, but in no event later than five (5) business
days following the date on which Company files its quarterly report in
respect of a fiscal quarter on Form 10-Q, or such other applicable
form ("Form 10-Q"), with the Commission (or, in the event the
Operating Partnership is required under rules and regulations
promulgated by the Commission to file with the Commission a Form 10-Q
separate from Company's Form 10-Q, five (5) business days after the
filing of such report by Operating Partnership with the Commission), a
complete copy of Operating Partnership's consolidated summary balance
sheet and summary income statement for such fiscal quarter prepared
and certified by the Company; and
<PAGE> 25
(iii) written information establishing (1) along with the financial
statements required pursuant to Paragraph 4(f)(i) hereof, the
percentage of the Operating Partnership's gross income that is derived
from sources enumerated in Section 856(c)(2) and (3), respectively, of
the Code, and (2) along with the financial statements required
pursuant to Paragraph 4(f)(ii) hereof, the percentage of the Operating
Partnership's assets (by value) that are within the relevant
categories of Section 856(c)(4) of the Code.
(g) Provided that all other conditions to Operating Partnership's and
Company's obligations set forth in this Agreement have been satisfied or
properly waived, Operating Partnership covenants that it shall record
Contributors as the holders of the Preference Units on its books and records and
shall admit Contributors as limited partners to Operating Partnership on the
Closing Date in accordance with the Agreement of Limited Partnership.
(h) Operating Partnership shall not issue any Preference Units to any
Person other than Contributors and Company shall not issue any Preferred Shares
to any Person other than a holder of Preference Units upon exchange of such
Preference Units.
(i) Through December 31, 1999, upon request of any Contributor, Operating
Partnership and Company agree (i) to deliver a certificate to each Contributor
bringing down the representations and warranties made by Operating Partnership
and Company in PARAGRAPHS 8(F), 8(G), 8(H), 8(I) and 8(Q) hereof and (ii) to
cause its counsel to deliver an opinion bringing down counsel's opinion in
respect of Paragraphs 2 (as to the second and third sentences thereof), 3, 7, 9
(as to the second, third and fourth sentences thereof), 10, 11 and 14 of that
certain opinion of Locke Liddell & Sapp LLP, dated as of the date hereof and
addressed to Belcrest Realty Corporation and Belair Real Estate Corporation, as
to a date requested by a Contributor (but not later than December 31, 1999) if
and to the extent, after due inquiry, Operating Partnership and Company can make
such representations and warranties as of such date and counsel can render such
opinions as of such date.
(j) Operating Partnership covenants and agrees promptly to provide notice
to the holders of the Preferred Units in the event that the Operating
Partnership or the Company or any affiliate thereof becomes aware of any fact
that would cause the Operating Partnership to fail to satisfy the income and
assets requirements of Section 856 of the Code if the Operating Partnership were
a real estate investment trust.
(k) The Company shall cause the Articles Supplementary to be filed with the
County Clerk of Harris County, Texas, and shall deliver within two (2) business
days after Closing a copy of the Articles Supplementary certified as filed with
the Clerk of Harris County, Texas.
<PAGE> 26
(l) The Company from time to time will provide or cause to be provided
sufficient funds or other assets to ensure that at all times the Operating
Partnership has a Net Asset Value at least equal to $200,000,000.
Notwithstanding the foregoing sentence, the Company shall in no event be obliged
to provide funds or assets to the Operating Partnership to the extent that the
amount thereof, at the time otherwise required to be contributed hereunder,
would exceed the Net Asset Value of the Company. Notwithstanding any other
provision hereof, the covenants and obligations of the Company under this
Paragraph 4(l) are for the benefit of the Operating Partnership only and do not
run to and are not enforceable by any creditor or any holder (including
Contributors) of any interests in the Operating Partnership (and no such person
is to be considered a third party beneficiary of this Paragraph 4(l)), nor shall
this Paragraph 4(l) cause Company to be responsible for the payments of any
obligations of the Operating Partnership. It being agreed that Contributors sole
remedy in respect of the covenant set forth in this Paragraph 4(l) is set forth
in Section 16.9(A)(i) of the Agreement of Limited Partnership as amended by the
Amendment.
The covenants set forth in this PARAGRAPH 4 shall survive the Closing.
5. TRANSACTION COSTS. Except as otherwise specifically set forth herein,
each of the parties hereto shall bear its own costs and expenses with respect to
the transaction contemplated hereby.
6. CLOSING. (a) The closing of the transactions contemplated by this
Agreement shall be consummated on February 23, 1999 (the "CLOSING").
(b) At the Closing, Operating Partnership and Company shall deliver to
Contributors the following documents and the following other items (the
documents and other items described in this PARAGRAPH 6(B) being collectively
referred to herein as the "OPERATING PARTNERSHIP CLOSING DOCUMENTS"):
(i) This Agreement duly executed and delivered by Operating Partnership
and Company;
(ii) The Amendment, duly executed and delivered by all persons necessary
necessary to make such amendment binding on and enforceable against
Operating Partnership and the Company;
(iii)Articles Supplementary, duly executed and delivered by the Company in
form suitable for filing in Harris County, Texas;
(iv) The Registration Rights Agreement, substantially in the form set forth
on EXHIBIT C, duly executed and delivered by Company;
(v) A Certificate of the Secretary of Company, substantially in the form
set forth on EXHIBIT D together with completed exhibits attached
thereto, executed by the secretary of the Company and dated as of the
date of the Closing;
<PAGE> 27
(vi) Opinions of counsel to Company, GP and Operating Partnership
substantially in the form set forth on EXHIBIT E;
(vii)Cross-Receipts, substantially in the form set forth on EXHIBIT F-1
and EXHIBIT F-2;
(viii)A Certificate representing the Preference Units;
(ix) A written consent of Wells Fargo Bank, National Association, as
Administrative Agent under that certain Second Amended and Restated
Credit Agreement, dated as of January 22, 1999, among Company, Wells
Fargo Bank, National Association and the lenders listed therein, to
the transactions contemplated herein, in form and substance acceptable
to Contributors; and
(x) Those other closing documents required to be executed by it or as may
be otherwise necessary or appropriate to consummate the transaction
contemplated herein.
(c) At the Closing, Contributors shall deliver to Operating Partnership and
Company the following documents and the following other items (the documents and
other items described in this PARAGRAPH 6(C) being collectively referred to
herein as the "CONTRIBUTORS' CLOSING DOCUMENTS"):
(i) Counterparts of documents listed in PARAGRAPHS 6(B)(I), 6(B)(II),
6(B)(IV) and 6(B)(VII), duly executed and delivered by Contributors.
(ii) Those other closing documents required to be executed by it or as may
be otherwise necessary or appropriate to consummate the transaction
contemplated herein.
7 . REPRESENTATIONS AND WARRANTIES OF CONTRIBUTORS. Contributors make the
following representations and warranties to Operating Partnership and Company,
all of which (except as otherwise designated) are true and correct in all
material respects on the Agreement Date and shall be true and correct in all
material respects as of the date of the Closing:
(a) Each Contributor is duly organized and validly existing under the laws
of the state of its organization and has been duly authorized by all necessary
and appropriate action to enter into this Agreement and to consummate the
transactions contemplated herein and the individuals executing this Agreement on
behalf of such Contributor have been duly authorized by all necessary and
appropriate action on behalf of such Contributor. Assuming the due execution and
delivery hereof by Company and Operating Partnership, this Agreement is a valid
and binding obligation of such Contributor, enforceable against such Contributor
in accordance with its terms, except insofar enforceability may be affected by
bankruptcy, insolvency or similar laws affecting creditor's rights generally and
the availability of any particular equitable remedy.
<PAGE> 28
(b) Neither the execution nor the delivery of this Agreement nor the
consummation of the transactions contemplated herein nor fulfillment of or
compliance with the terms and conditions hereof (a) conflict with or will result
in a breach of any of the terms, conditions or provisions of (i) the Governing
Documents of either Contributor or (ii) any agreement, order, judgement, decree,
arbitration award, statute, regulation or instrument to which either Contributor
is a party or by which it or its assets are bound, or (b) constitutes or will
constitute a breach, violation or default under any of the foregoing. No consent
or approval, authorization, order, regulation or qualification of any
governmental entity or any other person is required for the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby by either Contributor.
(c) Contributors acknowledges that the Preference Units have not been and
will not be registered or qualified under the Securities Act or any state
securities laws and are offered in reliance upon an exemption from registration
under Regulation D of the Securities Act and similar state law exceptions. The
Preference Units to be received by Contributors hereunder and any Preferred
Shares acquired in exchange therefor shall be held by Contributors for
investment purposes only for its own account, and not with a view to or for sale
in connection with any distribution of the Preference Units or such Preferred
Shares, and Contributors acknowledge that the Preference Units and Preferred
Shares cannot be sold or otherwise disposed of by the holders thereof unless
they are subsequently registered under the Securities Act or pursuant to a
exemption therefrom; and the Preference Units may not be sold, assigned or
otherwise transferred except in compliance with the Agreement of Limited
Partnership and this Agreement. Each Contributor hereby acknowledges receipt of
a copy of the Agreement of Limited Partnership and represents that it has
reviewed same and understands the provisions thereof which have a bearing on the
representations made in this PARAGRAPH 7(C). Contributors hereby further
acknowledge that each certificate representing Preference Units and Preferred
Shares shall bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE, AND MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION UNLESS CAMDEN PROPERTY TRUST AND CAMDEN OPERATING,
L.P. HAVE BEEN FURNISHED WITH AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO CAMDEN PROPERTY TRUST AND CAMDEN OPERATING, L.P., IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO CAMDEN PROPERTY TRUST AND
CAMDEN OPERATING, L.P., TO THE EFFECT THAT SUCH TRANSFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION MAY BE EXECUTED
WITHOUT REGISTRATION UNDER THE ACT AND UNDER APPLICABLE STATE SECURITIES
OR "BLUE SKY" LAWS."
(d) Contributors have no contract, understanding, agreement or arrangement
with any person or entity to sell, transfer or grant a participation to such
person or entity or any other person or entity, with respect to any or all of
the Preference Units it will receive in accordance with the provisions hereof or
any Preferred Shares to be acquired in exchange therefor.
<PAGE> 29
(e) Each Contributor is an "accredited investor" within the meaning of
Regulation D under the Securities Act and has knowledge and experience in
financial and business matters such that it is capable of evaluating the merits
and risks of receiving and owning the Preference Units and each Contributor is
able to bear the economic risk of such ownership.
(f) No Contributor is an employee benefit plan subject to ERISA or Section
4975 of the Code.
(g) In making this investment, each Contributor is relying upon the advice
of its own personal, legal and tax advisors with respect to the tax and other
aspects of an investment in Operating Partnership.
8. REPRESENTATIONS AND WARRANTIES OF OPERATING PARTNERSHIP AND COMPANY.
Operating Partnership and Company make the following representations and
warranties to Contributors and Manager, all of which (except as otherwise
designated) are true and correct in all material respects on the Agreement Date
and shall be true and correct in all material respects as of the date of the
Closing:
(a) Operating Partnership is duly organized and validly existing under the
laws of the state of its organization and is duly registered and qualified to do
business in each jurisdiction where such registration or qualification is
material to the transactions contemplated herein. Operating Partnership has been
duly authorized by all necessary and appropriate action to enter into this
Agreement, to issue, sell and deliver the Preference Units and to consummate the
transactions contemplated herein, and the individuals executing this Agreement
on behalf of Operating Partnership have been duly authorized by all necessary
and appropriate action on behalf of Operating Partnership. Assuming the due
execution and delivery hereof by Contributors, this Agreement is a valid and
binding obligation of Operating Partnership, enforceable against Operating
Partnership in accordance with its terms, except insofar enforceability may be
affected by bankruptcy, insolvency or similar laws affecting creditor's rights
generally and the availability of any particular equitable remedy.
(b) GP is duly organized and validly existing under the laws of the state
of its organization and is duly registered and qualified to do business in each
jurisdiction where such registration or qualification is material to the
transactions contemplated herein.
(c) Camden USA is duly organized and validly existing under the laws of the
state of its organization and is duly registered and qualified to do business in
each jurisdiction where such registration or qualification is material to the
transactions contemplated herein.
<PAGE> 30
(d) Company is duly organized and validly existing under the laws of the
state of its organization and is duly registered and qualified to do business in
each jurisdiction where such registration or qualification is material to the
transactions contemplated herein. Company has been duly authorized by all
necessary and appropriate action to enter into this Agreement, to issue and
deliver, upon exchange of the Preference Units, the Preferred Shares and to
consummate the transactions contemplated herein, and the individuals executing
this Agreement on behalf of Company have been duly authorized by all necessary
and appropriate action on behalf of Company. Assuming the due execution and
delivery hereof by Contributors, this Agreement is a valid and binding
obligation of Company, enforceable against Company in accordance with its terms,
except insofar enforceability may be affected by bankruptcy, insolvency or
similar laws affecting creditor's rights generally and the availability of any
particular equitable remedy.
(e) Neither the execution nor the delivery of this Agreement nor the
consummation of the transactions contemplated herein nor fulfillment of or
compliance with the terms and conditions hereof (a) conflict with or will result
in a breach of any of the terms, conditions or provisions of (i) the Governing
Documents of Company, GP, Camden USA or Operating Partnership or any of its
general partners or (ii) any agreement, order, judgement, decree, arbitration
award, statute, regulation or instrument to which Company, GP, Camden USA or
Operating Partnership is a party or by which it or its assets are bound, or (b)
constitutes or will constitute a breach, violation or default under any of the
foregoing. No consent or approval, authorization, order, registration or
qualification of any governmental entity or any other person is required for the
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein by Operating Partnership or Company.
(f) Immediately following the issuance of the Preference Units pursuant to
this Agreement, less than 14% of Operating Partnership's assets will consist of
"stock and securities" within the meaning of Section 351(e)(1) of the Code and
Operating Partnership has no plan to increase the amount of its assets
constituting "stock and securities" to an amount equal to or greater than 14%.
(g) Operating Partnership has not been and is not presently a PTP.
(h) Neither Company nor any Subsidiary of Company has any present plan or
intention, and neither Company nor any Subsidiary of Company has any actual
knowledge of any present plan or intention of any partner in Operating
Partnership, to take any action or actions that would or likely would result in
Operating Partnership becoming a PTP in the foreseeable future. Neither Company
nor any Subsidiary of Company has actual knowledge of facts that reasonably
<PAGE> 31
would cause it to expect that Operating Partnership would or likely would become
a PTP in the foreseeable future. For purposes of the representations set forth
in this PARAGRAPH 8(G), it is understood that neither the Company nor any
Subsidiary of Company shall have any duty of inquiry.
(i) The Company has properly elected to be taxed as a real estate
investment trust (REIT) in accordance with Sections 856 to 860 of the Code,
currently qualifies for taxation as a REIT and has no plan or intention or
knowledge of facts that likely would cause it to fail to qualify for taxation as
a REIT in the foreseeable future.
(j) The Preference Units have been duly authorized and upon contribution of
the Contribution Amount to the Operating Partnership will be validly issued,
fully paid and, to the extent permitted by the Revised Uniform Limited
Partnership Act of the State of Delaware, non-assessable.
(k) The Preferred Shares issuable upon exchange of the Preference Units in
accordance with the Agreement of Limited Partnership have been duly and validly
reserved for issuance, and upon issuance in accordance with this Agreement, the
Agreement of Limited Partnership and the Charter, shall be duly and validly
issued, fully paid and non-assessable.
(l) Neither the issuance, sale or delivery of the Preference Units nor,
upon exchange, the issuance and delivery of the Preferred Shares, is subject to
any preemptive right of any Partner of Operating Partnership arising under law
or the Agreement of Limited Partnership or any shareholder of Company arising
under applicable law or the Charter or Bylaws of Company, or to any contractual
right of first refusal or other right in favor of any person. With the exception
of the Charter and the Agreement of Limited Partnership, there are no agreements
or understandings in effect restricting the voting rights, the distribution
rights or any other rights of the holders of the Preference Units, or upon
exchange, the Preferred Shares.
(m) There is no action, suit, proceeding or investigation pending or, to
Operating Partnership's and Company's knowledge, currently threatened against
Operating Partnership or Company that questions the validity of this Agreement
or the right of Operating Partnership or Company to enter into this Agreement,
to consummate the transactions contemplated hereby, or that would reasonably be
expected to, either individually or in the aggregate, have a material adverse
affect on the business, operations, properties or condition (financially or
otherwise) of Operating Partnership or Company, or result in any change in the
current equity ownership of Operating Partnership or Company, nor is Company or
Operating Partnership aware that there is any basis for the foregoing.
<PAGE> 32
(n) None of Operating Partnership, GP, Camden USA or Company is in default
or violation of (i) any law, rule, regulation, order, judgement or decree
applicable to it or by which any of its properties or assets is bound or
affected, or (ii) any note, bond, mortgage, indenture or obligation to which it
is a party or by which Operating Partnership, GP, Camden USA or Company or any
property or asset of Company, GP, Camden USA or Operating Partnership is bound
or affected, except for any such conflicts, defaults or violations that would
not reasonably be expected to, individually or in the aggregate, have a material
adverse effect on the business, operations, properties or condition (financially
or otherwise) of Operating Partnership, GP, Camden USA or Company.
(o) Operating Partnership and Company hereby consent to any pledge to a
financial institution and release of such pledge of the Preference Units, and to
any pledge to a financial institution and release of such pledge of any
Preferred Shares into which such Preference Units are exchanged, to secure the
obligations of Contributors or the obligations of Contributors' parent, Belcrest
Capital Fund, LLC; provided that at the time of exchange of Preference Units to
Preferred Shares pursuant to the Amendment, such Preference Units are free and
clear of any liens or encumbrances.
(p) GP is a wholly-owned subsidiary of Camden USA. Camden USA is a
wholly-owned subsidiary of Company.
(q) (i) the income and assets of the Operating Partnership currently are
such as would permit the Operating Partnership to satisfy the income and assets
requirements of Section 856 of the Code if the Operating Partnership were a real
estate investment trust and (ii) the Operating Partnership has no current plan
or intention of having income or assets that would not permit the Operating
Partnership to satisfy the income and assets requirements of Section 856 of the
Code if the Operating Partnership were a real estate investment trust.
(r) Operating Partnership currently has a Net Asset Value of not less than
$200,000,000 and neither the Operating Partnership nor the Company has any
current plan, intention or expectation that the Operating Partnership will have
at any time in the future a Net Asset Value less than $200,000,000. It is
understood and agreed that if the representation and warranty set forth in the
first sentence of this SECTION 8(R) shall at any time hereafter be untrue, the
only remedy of Contributors therefor shall be Contributors' right to exchange as
set forth in Section 16.9(A)(i) of the Agreement of Limited Partnership as
amended by the Amendment.
Operating Partnership and Company hereby expressly permit Shearman &
Sterling, as counsel to Contributors and Manager, to rely upon the
representations and warranties set forth in PARAGRAPHS 8(F), 8(G), 8(H) and 8(I)
hereof as if such representations and warranties were made by Operating
Partnership and Company directly to Shearman & Sterling.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in PARAGRAPHS 7 and 8 shall survive the Closing.
<PAGE> 33
10. BROKERS. Each party represents and warrants to the other that it has
dealt with no broker, finder or other person (collectively, "BROKER") with
respect to this Agreement or the transactions contemplated herein and that no
Broker is entitled to a commission as a result of this transaction, except for
Donaldson, Lufkin & Jenrette Securities Corporation. Operating Partnership is
responsible for the commission to Donaldson, Lufkin & Jenrette Securities
Corporation pursuant to a separate agreement. Each of (a) Operating Partnership
and Company, severally and not jointly, on the one hand, and (b) Contributors on
the other hand, agrees to indemnify and hold harmless the other party against
any loss, liability, damage, expense or claim incurred by reason of any
brokerage commission or finder's fee alleged to be payable because of any act,
omission or statement of the indemnifying party. Such indemnity obligation shall
be deemed to include the payment of reasonable attorney's fees and court costs
incurred in defending any such claim. The provisions of this PARAGRAPH 10 shall
survive the Closing.
11 . COMPLETE AGREEMENT. This Agreement represents the entire agreement
between Contributors, Operating Partnership and Company covering everything
agreed upon or understood in this transaction and all prior agreements, written
or oral, including any prior subscription agreements or letters, are merged into
this Agreement. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution hereof in effect between the parties. No change or
addition shall be made to this Agreement except by a written agreement executed
by Contributors, Operating Partnership and Company.
12. AUTHORIZED SIGNATORIES. The persons executing this Agreement for and on
behalf of Contributors, Operating Partnership and Company each represent that
they have the requisite authority to bind the entities on whose behalf they are
signing.
13. PARTIAL INVALIDITY. If any term, covenant or condition of this
Agreement is held to be invalid or unenforceable in any respect, such invalidity
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid or unenforceable provision had
never been contained herein.
14. MISCELLANEOUS. (a) GOVERNING LAW. This Agreement shall be interpreted
and enforced according to the internal laws of the State of Texas.
(b) HEADINGS; SECTIONS. All headings and sections of this Agreement are
inserted for convenience only and do not form part of this Agreement or limit,
expand or otherwise alter the meaning of any provisions hereof.
(c) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement. Facsimile signatures shall be
deemed effective execution of this Agreement and may be relied upon as such by
the other party. In the event facsimile signatures are delivered, originals of
such signatures shall be delivered to the other party within three (3) business
days after execution.
<PAGE> 34
(d) NO BENEFIT FOR THIRD PARTIES. The provisions of this Agreement are
intended to be for the sole benefit of the parties hereto, Belcrest Capital
Fund, LLC, Belair Capital Fund, LLC, and their respective successors and
permitted assigns, and none of the provisions of this Agreement are intended to
be, nor shall they be construed to be, for the benefit of any third party.
(e) RIGHTS AND OBLIGATIONS. The rights and obligations of Contributors,
Operating Partnership and Company shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns in
accordance with the provisions of Article 11 of the Agreement of Limited
Partnership, as amended.
15 . NOTICES. All notices and other communications required or permitted to
be given hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered, delivered by nationally recognized overnight
courier with proof of delivery thereof, sent by United States registered or
certified mail (postage prepaid, return receipt requested) addressed as
hereinafter provided or via telephonic facsimile transmission with proof of
delivery in the form of a telecopier's transmission confirmation report. Notice
shall be sent and deemed given when (a) if personally delivered or via
nationally recognized overnight courier, then upon receipt by the receiving
party, or (b) if mailed, then three (3) days after being postmarked, or (c) if
sent via telephonic facsimile transmission, then at the time set forth in the
telecopier's transmission confirmation report.
Any party listed below may change its address hereunder by notice to the
other party listed below. Until further notice, notice and other communications
hereunder shall be addressed to the parties listed below as follows:
If to Contributors: Belcrest Realty Corporation and Belair Real
Estate Corporation
c/o Eaton Vance Management
24 Federal Street
Boston, Massachusetts 02110
Attention: Mr. Alan Dynner
Fax: (617) 338-8054
If to Operating Partnership Camden Property Trust
or Company: Three Greenway Plaza, Suite 1300
Houston, Texas 77046
Attention: Mr. Richard J. Campo
Fax: (713) 354-2599
<PAGE> 35
16. PRESS RELEASES. Contributors, Operating Partnership and Company each
agrees that it will not issue any press release, advertisement or other public
communication with respect to this Agreement or transaction contemplated therein
without the prior consent of the other party hereto, except to the extent such
communication is required by applicable law or by the New York Stock Exchange
Rules. With respect to the initial press release in connection with this
Agreement or the transaction contemplated herein, Operating Partnership and
Company shall deliver a copy of such proposed press release to Contributors
prior to the publication thereof and shall grant Contributors the opportunity to
review the same and shall make reasonable revisions to such proposed press
release requested by a Contributor.
17. CONFIDENTIALITY. Contributors shall use reasonable efforts to ensure
that all confidential information which it or any of its representative may now
possess or may hereafter create or obtain relating to Operating Partnership or
Company or any of its subsidiaries or the transactions contemplated hereby shall
not be published, disclosed or made accessible by a Contributor or its
representative without the prior written consent of Company; PROVIDED, HOWEVER,
that the restrictions of this sentence shall not apply: (i) to the extent the
disclosure may otherwise be required by applicable law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange; (ii) to the extent such information shall have otherwise become
publicly available; or (iii) to the extent that such information shall be
discussed with consultants, representatives and agents of a Contributor solely
in furtherance of the Contributor's interest in the transactions contemplated
herein.
<PAGE> 36
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day first written above.
CONTRIBUTORS:
BELCREST REALTY CORPORATION
By: /S/ THOMAS E. FAUST, JR.
--------------------------------------------
Name: Thomas E. Faust, Jr.
Title: Executive Vice President
BELAIR REAL ESTATE CORPORATION
By: /S/ THOMAS E. FAUST, JR.
--------------------------------------------
Name: Thomas E. Faust, Jr.
Title: Executive Vice President
OPERATING PARTNERSHIP:
CAMDEN OPERATING, L.P.
By: CPT-GP, Inc., its general partner
By: /S/ G. STEVEN DAWSON
--------------------------------------------
Name: G. Steven Dawson
Title: Senior Vice President and
Chief Financial Officer
COMPANY:
CAMDEN PROPERTY TRUST
By: /S/ RICHARD J. CAMPO
--------------------------------------------
Name: Richard J. Campo
Title: Chairman and Chief Executive Officer
<PAGE> 37
Exhibit 99.2
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF CAMDEN OPERATING, L.P.
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF CAMDEN OPERATING, L.P. (this "AMENDMENT") is entered into as of
the 23rd day of February, 1999, by and between CPT-GP, Inc. ("GENERAL PARTNER"),
a Delaware corporation and a wholly owned subsidiary of Camden USA, Inc.
("CAMDEN USA"), a Delaware corporation, a wholly owned subsidiary of Camden
Property Trust ("CPT"or the "GENERAL PARTNER ENTITY"), a Texas real estate
investment trust, as the general partner of Camden Operating, L.P., a Delaware
limited partnership (the "PARTNERSHIP"), Belcrest Realty Corporation, a Delaware
corporation ("BELCREST") and Belair Real Estate Corporation, a Delaware
corporation ("BELAIR"; each of Belcrest and Belair a "SERIES B PREFERRED
PARTNER" and collectively, the "SERIES B PREFERRED PARTNERS").
W I T N E S S E T H:
WHEREAS, the signatories hereto desire to amend that certain Third Amended
and Restated Agreement of Limited Partnership of Camden Operating, L.P., dated
as of April 15, 1997 (the "AGREEMENT") as set forth herein; any terms
capitalized herein but not defined herein having the definitions therefor set
forth in 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. As of the date hereof (a) Belair has contributed $57,000,000 to the
Partnership in exchange for the issuance to Belair of 2,280,000 Series B
Preferred Units (as defined in the Agreement, as amended hereby) and (b)
Belcrest has contributed $43,000,000 to the Partnership in exchange for the
issuance to Belcrest of 1,720,000 Series B Preferred Units. The Series B
Preferred Units issued to the Series B Preferred Partners have been duly issued
and fully paid. The Series B Preferred Partners are hereby admitted to the
Partnership, effective as of February 23, 1999, as Additional Limited Partners
(the information set forth on EXHIBIT A attached hereto relating to the interest
of the Series B Preferred Partners in the Partnership is hereby included in
Exhibit A to the Agreement), and by execution of this Amendment the Series B
Preferred Partners have agreed to be bound by all of the terms and conditions of
the Agreement, as amended hereby.
2. DEFINITIONS.
<PAGE> 38
A. The words "Series B Preferred Units" are inserted after the word "Units"
in the beginning of the third line of the definition of "Partnership Unit" in
Article I of the Agreement.
B. The following new definitions are inserted in Article I of the Agreement
so as to preserve alphabetical order:
"DECLARATION OF TRUST" shall have the meaning set forth therefor in Section
16.3.C hereof.
"EXCESS UNITS" shall have the meaning set forth therefor in Section 16.9.A
hereof.
"INDEBTEDNESS" means, with respect to any person or entity: (i) all
indebtedness, obligations or other liabilities of such person or entity or for
borrowed money (including indebtedness, obligations and liabilities owing to any
affiliate of such person or entity); (ii) all indebtedness, obligations or other
liabilities of such person or entity evidenced by securities or other similar
instruments, including, without limitation, any obligation, contingent or
otherwise, to purchase or repurchase securities or similar instruments at some
future time; (iii) all reimbursement obligations and other liabilities of such
person or entity with respect to letters of credit, banker's acceptances,
financial guaranties and other similar financing arrangements issued for such
person's or entity's account; (iv) all obligations of such person or entity to
pay the deferred purchase price of property or services; (v) all indebtedness,
obligations or other liabilities of such person or entity or others secured by a
lien on any asset of such person or entity, whether or not such indebtedness,
obligations or liabilities are assumed by, or are a personal liability of, such
person or entity; (vi) all indebtedness, obligations or other liabilities of
such person or entity (including contingent liabilities for the costs of
premature termination calculated as though such termination occurred on the date
of determination) in respect of interest rate hedging agreements and foreign
currency exchange agreements of which such person or entity is a party; (vii)
all indebtedness, obligations and other liabilities of any unconsolidated
subsidiary in which such person or entity is a general partner or for which such
person or entity is primarily or secondarily liable, all without regard to any
contribution, reimbursement or indemnity rights of such person or entity; (viii)
the applicable percentage of nonrecourse indebtedness owed by any unconsolidated
subsidiary of such person or entity; and (ix) all indebtedness obligations or
other liabilities of such person or entity in connection with the sale and
leaseback of any property of such person or entity.
"JUNIOR UNITS" shall have the meaning set forth therefor in Section 16.3.C
hereof.
"NET ASSET VALUE" means, with respect to any fiscal quarter of the
Partnership, (A) the product of (1) the Net Operating Income for such quarter
(as determined based upon the financial information of the Partnership provided
by the Partnership pursuant to Section 4(f) of the Series B Preferred
Contribution Agreement) multiplied by four and (2) eleven, less (B) all
Indebtedness of the Partnership.
<PAGE> 39
"NET OPERATING INCOME" means, with respect to any fiscal quarter of the
Partnership, all cash received by the Partnership from whatever source
(excluding the proceeds of any Capital Contributions and any capital
transactions (e.g., refinancings, sales of assets, casualty or condemnation))
less the aggregate of the following: (i) all interest payments in respect of
Partnership Indebtedness made during such quarter by the Partnership; and (ii)
all operating expenses made by the Partnership during such quarter.
"PARITY PREFERRED UNITS" shall have the meaning set forth therefor in
Section 16.1 hereof.
"PTP" shall have the meaning set forth therefor in Section 16.1 hereof.
"SERIES B EXCHANGE NOTICE" shall have the meaning set forth therefor in
Section 16.9.B hereof.
"SERIES B EXCHANGE PRICE" shall have the meaning set forth therefor in
Section 16.9.A hereof.
"SERIES B PREFERRED CONTRIBUTION AGREEMENT" means that certain Contribution
Agreement, dated as of February 23, 1999, by and among, Belcrest Realty
Corporation, Belair Real Estate Corporation, CPT and Partnership.
"SERIES B PREFERRED PARTNERS" means Belcrest Realty Corporation and Belair
Real Estate Corporation, and their respective successors and assigns.
"SERIES B PREFERRED SHARES" shall have the meaning set forth therefor in
Section 16.9.A hereof.
"SERIES B PREFERRED UNIT DISTRIBUTION PAYMENT DATE" shall have the meaning
set forth therefor in Section 16.3.A hereof.
"SERIES B PREFERRED UNIT PARTNERSHIP RECORD DATE" shall have the meaning
set forth therefor in Section 16.3.A hereof.
"SERIES B PREFERRED UNITS" shall have the meaning set forth therefor in
Section 16.2 hereof.
"SERIES B PRIORITY RETURN" shall have the meaning set forth therefor in
Section 16.1 hereof.
"SERIES B REDEMPTION PRICE" shall have the meaning set forth therefor in
SECTION 16.6 hereof.
<PAGE> 40
3. SECTION 4.2.D. Section 4.2.D of the Agreement is amended by inserting
the word "three" in lieu of the word "two" in the second line thereof, and by
inserting the words "and Series B Preferred Units" after the words "`Class B
Units'" at the end of the first sentence thereof.
4. SECTION 8.4. Nothing contained in Section 8.4 of the Agreement shall
modify or limit in any way any of the provisions of Article XVI of the
Agreement.
5. SECTION 8.6. The provisions of Section 8.6 of the Agreement shall not be
applicable to the Series B Preferred Units.
6. TRANSFERS. Section 11.1.A of the Agreement is amended by inserting the
words "or an exchange pursuant to Section 16.9 hereof" after the words "Section
8.6" in the last line thereof. Section 11.3.A of the Agreement is amended by
inserting the words "or an exchange pursuant to Section 16.9 hereof" after the
words "Section 8.6" in the second line thereof. Section 11.3.A is further
modified to include the following sentence after the last sentence thereof:
"Notwithstanding anything in this Section 11.3 (but not including 11.3.C) to the
contrary, the General Partner shall not unreasonably withhold its consent to any
Transfer of any Series B Preferred Units, provided the provisions of Sections
11.3.B, 11.3.D. 11.3.E, 11.3.F, 11.4.B and 11.6 hereof are satisfied." Section
11.3.C of the Agreement is amended by adding the following new clause (ix) after
clause (viii) thereof: "and (ix) notwithstanding any clause of this Section
11.3.C to the contrary, in the case of any Series B Preferred Partner, to an
Affiliate of such Series B Preferred Partner, provided such transfer is made in
accordance with Sections 11.3.D, 11.3.E, 11.3.F and 11.4.B of the Agreement (for
the sake of this clause (ix) and Section 11.6.C (as it relates to the Series B
Preferred Units) only, the word "Affiliate" shall mean, in respect to any person
or entity, any other person or entity directly or indirectly controlling,
controlled by or under common control of such person or entity whether or not
such control shall include a controlling ownership interest)." The following
sentence is inserted after the last sentence of Section 11.4.A of the Agreement:
"Notwithstanding anything in Section 11.4 hereof to the contrary, the General
Partner shall not unreasonably withhold its consent to the admission of a
transferee of Series B Preferred Units as a Limited Partner, in respect of an
exchange of Series B Preferred Units to a permitted transferee under Section
11.3.C hereof, provided that the effect of such admission would not be to cause
the Partnership to have more than 500 Partners or to be a publicly traded
partnership within the meaning of Section 7704 of the Code, and any such
transferee shall, upon satisfaction of all of the conditions set forth in
Sections 11.3.B, 11.3.D. 11.3.E, 11.3.F, 11.4.B and 11.6 hereof be admitted to
the Partnership as a Substituted Limited Partner hereunder." Sections 11.6.A and
11.6.B of the Agreement each are amended by inserting the words "or an exchange
pursuant to Section 16.9 hereof" after the words "Section 8.6" therein. The
following language is inserted at the end of Section 11.6.C of the Agreement: ";
PROVIDED, HOWEVER, that a Series B Preferred Partner may make a Transfer to an
<PAGE> 41
Affiliate of such Series B Preferred Partner in accordance with the provisions
of Section 11.3.C hereof without regard to such limitation." The last sentence
of Section 11.6.D is hereby modified by inserting the words "or Series B
Preferred Unit Partnership Date, as the case may be" after the words
"Partnership Record Date".
7. SECTION 12.2.B. The last sentence of Section 12.2.B shall not be deemed
applicable to distributions in respect of the Series B Preferred Shares.
8. SECTION 13.2. Section 13.2 of the Agreement is amended as follows:
(a) The word "adjustments" is inserted in Section 13.2.A(3) between the
words "distributions," and "allocations."
(b) The following sentence is added at the end of Section 13.2.A: "Prior to
the foregoing distributions, the General Partner shall have made adjustments to
Capital Accounts of the Partners to reflect the fair market value of the
Partnership assets as of the date of the Partnership's liquidation in a manner
consistent with Regulations Section 1.704-1(b)(2)(iv)(f)."
9. ARTICLE XVI. The following new Article XVI is inserted in the Agreement
after Article XV thereof:
"ARTICLE XVI
SERIES B CUMULATIVE
REDEEMABLE PERPETUAL PREFERRED UNITS
SECTION 16.1 DEFINITIONS
The term "PARITY PREFERRED UNITS" shall be used to refer to any class or
series of Partnership Interests now or hereafter authorized, issued or
outstanding expressly designated by the Partnership to rank on a parity with
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 8.50% per annum,
determined on the basis of a 360 day year of twelve 30 day months (or actual
days for any month which is shorter than a full monthly period), cumulative to
the extent not distributed for any given distribution period pursuant to Section
5.1 hereof, of the stated value of $25 per Series B Preferred Unit, commencing
on the date of issuance of such Series B Preferred Unit. The term "PTP" shall
mean a "publicly traded partnership" within the meaning of Section 7704 of the
Code.
SECTION 16.2 DESIGNATION AND NUMBER
A series of Partnership Units in the Partnership designated as the "8.5%
Series B Cumulative Redeemable Perpetual Preferred Units" (the "SERIES B
PREFERRED UNITS") is hereby established. The number of Series B Preferred Units
shall be 4,000,000.
<PAGE> 42
SECTION 16.3 DISTRIBUTIONS
A. PAYMENT OF DISTRIBUTIONS. Subject to the rights of holders of Parity
Preferred Units as to the payment of distributions, pursuant to Sections 5.1,
5.3 and 13.2 hereof, 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 Available Cash, cumulative preferential cash distributions at
the rate per annum of 8.5% of the original Capital Contribution per Series B
Preferred Unit. With respect to the Holders of the Series B Preferred Units, the
original Capital Contribution per Series B Preferred Unit is $25. Such
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 and not calendar year quarters) in arrears, not later
than the third calendar day after March 31, June 30, September 30 and December
31 of each year commencing on March 31, 1999 and, (ii) in the event of (a) an
exchange of Series B Preferred Units into Series B Preferred Shares, or (b) a
redemption of Series B Preferred Units, on the exchange date or redemption date,
as applicable (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 360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the actual number of days
elapsed in such a 30-day month. If any date on which distributions are to be
made on the Series B Preferred Units is not a Business Day, 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 (the "SERIES B PREFERRED UNIT
PARTNERSHIP RECORD 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 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
<PAGE> 43
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 Partnership Interest 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,
"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 Parity Preferred Units or any Junior Units,
unless, in each case, all distributions accumulated on all Series B Preferred
Units and all classes and series of outstanding Parity Preferred Units have been
paid in full. The foregoing sentence will not prohibit (a) distributions payable
solely in Junior Units or, in accordance with Section 8.6 hereof, common shares
of beneficial interest (or any similar equity security) of the General Partner
Entity, (b) the conversion of Junior Units or Parity Preferred Units into Junior
Units or common shares of beneficial interest (or any similar equity security)
of the General Partner Entity, and (c) the redemption of Partnership Interests
corresponding to any Series B Preferred Shares, Parity Preferred Shares or
Junior Shares (as those terms are defined in that certain Statement of
Designation of Series B Cumulative Redeemable Perpetual Preferred Shares of
Beneficial Interest of the General Partner Entity (the "SERIES B DESIGNATION")
establishing the Series B Preferred Shares (as hereinafter defined) to be
purchased by the General Partner Entity pursuant to Article Nineteen of the
Declaration of Trust.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series B Preferred Units, all distributions authorized and
declared on the Series B Preferred Units and all classes or series of
outstanding 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 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 Parity Preferred Units (which shall not
include any accumulation in respect of unpaid distributions for prior
distribution periods if such class or series of Parity Preferred Units do not
have cumulative distribution rights) bear to each other.
<PAGE> 44
D. 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 16.4 ALLOCATIONS
Sections 6.1.A and 6.1.B of the Agreement are hereby deleted and replaced
by the following:
A. NET INCOME. After giving effect to the special allocations set forth in
Section 1 of EXHIBIT C and Section 6.2 below, Net Income shall be allocated:
(i) first, to the General Partner to the extent that Net Losses previously
allocated to the General Partner pursuant to Section 6.1.B(iii) below
for all prior taxable years exceed Net Income previously allocated to
the General Partner pursuant to this Section 6.1.A(i) for all prior
taxable years,
(ii) second, to holders of Partnership Interests that are entitled to any
preference in distribution to the extent that Net Losses previously
allocated to such holders pursuant to Section 6.1.B(ii) below for all
prior taxable years exceed Net Income previously allocated to such
holders pursuant to this Section 6.1.A(ii) for all prior taxable
years, (iii) third, to holders of Partnership Interests of a class not
entitled to preference in distribution to the extent that Net Losses
previously allocated to such holders pursuant to Section 6.1.B(i)
below for all prior taxable years exceed Net Income previously
allocated to such holders pursuant to this Section 6.1.A(iii) for all
prior taxable years,
(iv) fourth, to the holders of any Partnership Interests that are entitled
to any preference in distribution in accordance with the rights of any
such class of Partnership Interests (including Series B Preferred
Units) until each such Partnership Interest has been allocated, Net
Income equal to the EXCESS OF (x) the cumulative amount of preferred
distributions such holders are entitled to receive (Series B Priority
Return, in the case of Series B Preferred Units) to the last day of
the current taxable year or to the date of redemption, to the extent
such Partnership Interests are redeemed during such taxable year, OVER
(y) the cumulative Net Income allocated to such holders, pursuant to
this Section 6.1.A(iv) for all prior taxable years, (and, within such
class, pro rata in proportion to the respective number of such Units
each Holder holds as of the last day of the period for which such
allocation is being made), and
(v) fifth, with respect to Partnership Interests that are not entitled to
any preference in the allocation of Net Income, pro rata to each such
class in accordance with the terms of such class (and, within such
class, pro rata in proportion to the respective Percentage Interests
as of the last day of the period for which such allocation is being
made).
B. NET LOSSES. After giving effect to the special allocations set
forth in Section 1 of EXHIBIT C and Section 6.2, Net Losses shall be
allocated:
<PAGE> 45
(i) first, with respect to classes of Partnership Interests that are not
entitled to any preference in distribution (including the General
Partner Interest), pro rata to each such class in accordance with the
terms of such class (and, within such class, pro rata in proportion to
the respective Percentage Interests as of the last day of the period
for which such allocation is being made) until the Adjusted Capital
Account (ignoring for this purpose any amounts a Partner is obligated
to contribute to the capital of the Partnership or is deemed obligated
to contribute pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)(2))
of each Partner in such classes is reduced to zero,
(ii) second, to the holders of any Partnership Interests that are entitled
to any preference in distribution (including Series B Preferred Units)
in accordance with the rights of any such class of Partnership
Interests (and, if there is more than one class of such Partnership
Interests, then in the reverse order of their preference in
distribution), until the Adjusted Capital Account (modified in the
same manner as in clause (i)) of each such holder is reduced to zero,
and
(iii) third, to the General Partner.
To the extent permitted under Section 704 of the Code, solely for purposes
of allocating Net Income or Net Losses in any taxable year(or a portion thereof)
to the holders of Series B Preferred Units pursuant to Section 6.1 hereof, items
of Net Income or Net Losses, as the case may be, shall not include Depreciation
with respect to properties that are "ceiling limited" in respect of holders of
Series B Preferred Units. For purposes of the preceding sentence, Partnership
property shall be considered "ceiling limited" in respect of a holder of Series
B Preferred Units if Depreciation attributable to such Partnership property
which would otherwise be allocable to such holder, without regard to this
paragraph, exceeds depreciation determined for federal income tax purposes
attributable to such Partnership property which would otherwise be allocable to
such holder by more than 5%.
SECTION 16.5 LIQUIDATION PROCEEDS
A. DISTRIBUTIONS UPON CERTAIN EVENTS. Upon voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, distributions on the
Series B Preferred Units shall be made in accordance with Section 13.2 hereof;
PROVIDED, HOWEVER, that upon any such liquidation, dissolution or winding-up of
the Partnership, the Liquidator may elect, in its sole discretion, to cause the
Partnership or the General Partner Entity to issue to the holders of the Series
B Preferred Units such number of Series B Preferred Shares as such holder would
have received had they exercised their Exchange Rights in accordance with
Section 16.9 hereof (it being assumed for purposes hereof that such holders
would then be entitled to exercise such Exchange Rights) in lieu of the cash
otherwise distributable to the Series B Preferred Partners pursuant to Section
13.2 hereof.
B. NOTICE. Written notice of any such 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
<PAGE> 46
(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.
C. NO FURTHER RIGHTS. After payment of the full amount of the liquidating
distributions to which they are entitled (whether in accordance with Section
13.2 hereof, or by delivery of Series B Preferred Shares in accordance with
Section 16.5.A hereof or both), the holders of Series B Preferred Units will
have no right or claim to any of the remaining assets of the Partnership.
D. CONSOLIDATION, MERGER OR CERTAIN OTHER TRANSACTIONS. The 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 16.6 OPTIONAL REDEMPTION
A. RIGHT OF OPTIONAL REDEMPTION. The Series B Preferred Units may not be
redeemed prior to the fifth (5th) anniversary of the issuance date. On or after
such date, the Partnership shall have the right to redeem the Series B Preferred
Units, in whole or in part, at any time or from time to time, upon not less than
30 nor more than 60 days' written notice, at a redemption price, payable in
cash, equal to the Capital Account balance of the holder of Series A Preferred
Units (the "SERIES B REDEMPTION PRICE") or, if greater, the original Capital
Contribution of such holder plus the current Series B Priority Return, whether
or not declared to the relevant date, to the extent not previously distributed;
PROVIDED, HOWEVER, that no redemption pursuant to this Section 16.6 will be
permitted if the Series B Redemption Price does not equal or exceed the original
Capital Contribution of such holder plus the cumulative Series B Priority
Return, whether or not declared, to the redemption date to the extent not
<PAGE> 47
previously distributed. If fewer than all of the outstanding Series B Preferred
Units are to be redeemed, the Series B Preferred Units to be redeemed shall be
selected pro rata (as nearly as practicable without creating fractional units).
B. LIMITATION ON REDEMPTION. The Partnership may not redeem fewer than all
of the outstanding Series B Preferred Units unless all accumulated and unpaid
distributions have been paid on all Series B Preferred Units for all quarterly
distribution periods terminating on or prior to the date of redemption.
C. PROCEDURES FOR REDEMPTION. (i) Notice of redemption will be (a) faxed,
and (b) mailed by the Partnership, by certified mail, postage prepaid, not less
than 30 nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of the Series B Preferred Units at their respective
addresses as they appear on the records of the Partnership. No failure to give
or defect in such notice shall affect the validity of the proceedings for the
redemption of any Series B Preferred Units except as to the holder to whom such
notice was defective or not given. In addition to any information required by
law, each such notice shall state: (m) the redemption date, (n) the Series B
Redemption Price, (o) 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, (p) the place or
places where such Series B Preferred Units are to be surrendered for payment of
the Series B Redemption Price, (q) that distributions on the Series B Preferred
Units to be redeemed will cease to accumulate on such redemption date and (r)
that payment of the Series B Redemption Price will be made upon presentation and
surrender of such Series B Preferred Units and execution and delivery by the
holder of Series B Preferred Units of an assignment of Partnership Interest
pursuant to which such holder shall assign the Series B Preferred Units to the
Partnership, shall represent and warrant that such Series B Preferred Units are
unencumbered and not subject to any lien and that such holder has good title to
such Series B Preferred Units and that such holder has requisite authority to
assign the Series B Preferred Units to the Partnership pursuant to such
assignment of Partnership Interest and shall provide such additional
representations and warranties and assurances (including opinions of counsel) as
shall be reasonably requested by the Partnership; provided that no Series B
Preferred Units shall be redeemed by the Partnership unless and until the holder
thereof shall have satisfied all of the conditions to such redemption
(including, without limitation, the delivery of the foregoing assignment and
further assurances).
<PAGE> 48
(ii) If the Partnership gives a notice of redemption in resprct of Series B
Preferred Units (which notice will be irrevocable) then, by 12:00 noon, New York
City time, on the redemption date, the Partnership will deposit irrevocably in
trust for the benefit of the Series B Preferred Units being redeemed funds
sufficient to pay the applicable Series B Redemption Price and will give
irrevocable instructions 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 in the notice of
redemption, the delivery by such holders of the opinions of counsel and future
assurances further described in Section 16.6.C(i) hereof, and the execution and
delivery by such holders of an assignment as further described in Section
16.6.C(i) hereof. 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 thereof. 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 applicable Series
B Redemption Price.
D. The provisions of Section 8.6 of this Agreement do not apply to
redemptions undertaken pursuant to this Article XVI.
SECTION 16.7 VOTING RIGHTS
A. GENERAL. 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, except as provided in Sections 7.3 and 14.1.C
and this Section 16.7. In the event of any inconsistency between any other
provision of this Agreement and the provisions of this Section 16.7, the
provisions of this Section 16.7 shall control.
B. CERTAIN VOTING RIGHTS. So long as any Series B Preferred Units remain
outstanding, the Partnership shall not, without the affirmative vote of the
holders of at least two-thirds of the Series B Preferred Units outstanding at
the time: (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Partnership Interests ranking senior to the Series B
Preferred Units with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any Partnership Interests
into any such senior Partnership Interest, or create, authorize or issue any
obligations or security convertible into or evidencing the right to purchase any
such senior Partnership Interests; (ii) authorize or create, or increase the
authorized or issued amount of any Parity Preferred Units or reclassify any
Partnership Interest into any such Partnership Interest or create, authorize or
issue any obligations or security convertible into or evidencing the right to
purchase any such Partnership Interests but only to the extent such Parity
<PAGE> 49
Preferred Units are issued to an Affiliate of the Partnership, other than the
General Partner Entity to the extent the issuance of such interests was to allow
the General Partner Entity to issue corresponding preferred shares to persons
who are not Affiliates of the Partnership; or (iii) either (A) consolidate,
merge into or with, or (other than in a manner which results in a liquidation of
the Partnership and the distributions provided for in Section 16.5 hereof (which
distributions must be in the form of Series B Preferred Shares at any time prior
to the fifth (5th) anniversary of the date hereof)) convey, transfer or lease
its assets substantially as an entirety to, any corporation or other entity or
(B) amend, alter or repeal the provisions of the Agreement, whether by merger,
consolidation or otherwise, that would materially and adversely affect the
powers, special rights, preferences, privileges or voting power of the Series B
Preferred Units or the holders thereof; PROVIDED, HOWEVER, that with respect to
the occurrence of a merger, consolidation or a sale or lease of all of the
Partnership's assets as an entirety, so long as (l) the Partnership is the
surviving entity and the Series B Preferred Units remain outstanding with the
terms thereof unchanged, or (2) the resulting, surviving or transferee entity is
a partnership, limited liability company or other pass-through entity organized
under the laws of any state and substitutes for the Series B Preferred Units
other interests in such entity having substantially the same terms and rights as
the Series B Preferred Units, including with respect to distributions, voting
rights and rights upon liquidation, dissolution or winding-up, then the
occurrence of any such event shall not be deemed to materially and adversely
affect such rights, privileges or voting powers of the holders of the Series B
Preferred Units (and shall not require the vote or consent of any of the holders
of the Series B Preferred Units); and PROVIDED FURTHER that any increase in the
amount of Partnership Interests or the creation or issuance of any other class
or series of Partnership Interests, in each case ranking (y) junior to the
Series B Preferred Units with respect to payment of distributions and the
distribution of assets upon liquidation, dissolution or winding-up, or (z) on a
parity to the Series B Preferred Units with respect to payment of distributions
and the distribution of assets upon liquidation, dissolution or winding-up to
the extent such Partnership Interests are not issued to an affiliate of the
Partnership, other than the General Partner Entity to the extent the issuance of
such interests was to allow the General Partner Entity to issue corresponding
preferred shares to persons who are not affiliates of the Partnership, shall not
be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers (and shall not require the vote or consent of any of
the holders of the Series B Preferred Units).
SECTION 16.8 TRANSFER RESTRICTIONS
The Series B Preferred Units shall be subject to the provisions of Article
XI of the Agreement, as amended by this Amendment.
<PAGE> 50
SECTION 16.9 EXCHANGE RIGHTS
A. RIGHT TO EXCHANGE. (i) Series B Preferred Units will be exchangeable in
whole or in part at anytime on or after the tenth (10th) anniversary of the date
of issuance, at the option of the holders thereof, for authorized but previously
unissued shares of 8.5% Series B Cumulative Redeemable Preferred Shares of
Beneficial Interest of the General Partner Entity (the "SERIES B PREFERRED
SHARES") at an exchange rate of one share of Series B Preferred Shares for one
Series B Preferred Unit, subject to adjustment as described below (the "SERIES B
EXCHANGE PRICE"), provided that the Series B Preferred Units will become
exchangeable at any time, in whole or in part, at the option of the holders of
Series B Preferred Units for Series B Preferred Shares if (x) at any time full
distributions shall not have been timely made on any Series B Preferred Unit
with respect to six (6) prior quarterly distribution periods, whether or not
consecutive, provided, however, that a distribution in respect of Series B
Preferred Units shall be considered timely made if made within two (2) Business
Days after the applicable Series B Preferred Unit Distribution Payment Date if
at the time of such late payment there shall not be any prior quarterly
distribution periods in respect of which full distributions were not timely
made, (y) upon receipt by a holder or holders of Series B Preferred Units of (1)
notice from the General Partner that the General Partner or the General Partner
Entity has taken the position that the Partnership is, or upon the occurrence of
a defined event in the immediate future will be, a PTP and (2) an opinion
rendered by an outside nationally recognized independent legal counsel
reasonably acceptable to the General Partner familiar with such matters
addressed to a holder or holders of Series B Preferred Units, that the
Partnership is or likely is, or upon the occurrence of a defined event that
shall occur in the immediate future will be or likely will be, a PTP, or (z) the
Net Asset Value of the Partnership in any fiscal quarter of the Partnership is
less than $200,000,000. In addition, the Series B Preferred Units may be
exchanged for Series B Preferred Shares, in whole or in part, at the option any
holder prior to the tenth (10th) anniversary of the issuance date and after the
third (3rd) anniversary thereof if such holder of a Series B Preferred Units
shall deliver to the General Partner either (i) a private letter ruling issued
by the Internal Revenue Service and addressed to such holder of Series B
Preferred Units or (ii) an opinion of independent legal counsel reasonably
acceptable to the General Partner based on the enactment of temporary or final
Treasury Regulations or the publication of a Revenue Ruling, in either case to
the effect that an exchange of the Series B Preferred Units at such earlier time
would not cause the Series B Preferred Units to be considered "stock and
securities" within the meaning of section 351(e) of the Code for purposes of
determining whether the holder of such Series B Preferred Units is an
"investment company" under section 721(b) of the Code if an exchange is
permitted at such earlier date. Furthermore, the Series B Preferred Units may be
exchanged in whole but not in part by any holder thereof which is a real estate
investment trust within the meaning of Sections 856 through 859 of the Code for
Series B Preferred Shares (but only if the exchange in whole may be accomplished
consistently with the ownership limitations set forth under Article Nineteen of
the Declaration of Trust of the General Partner Entity (taking into account
exceptions thereto)) if at any time, (i) the Partnership reasonably determines
that the assets and income of the Partnership for a taxable year after 1999
would not satisfy the income and assets tests of Section 856 of the Code for
<PAGE> 51
such taxable year if the Partnership were a real estate investment trust within
the meaning of the Code or (ii) any such holder of Series B Preferred Units
shall deliver to the Partnership and the General Partner Entity an opinion of
independent counsel reasonably acceptable to the General Partner Entity to the
effect that, based on the assets and income of the Partnership for a taxable
year after 1999, the Partnership would not satisfy the income and assets tests
of Section 856 of the Code for such taxable year if the Partnership were a real
estate investment trust within the meaning of the Code and that such failure
would create a meaningful risk that a holder of the Series B Preferred Units
would fail to maintain qualification as a real estate investment trust.
(ii) Notwithstanding anything to the contrary set forth in Section
16.9.A(i), if a Series B Exchange Notice (as hereinafter defined) has been
delivered to the General Partner, then the General Partner may, at its option,
elect to redeem or cause the Partnership to redeem all or a portion of the
Series B Preferred Units which are subject to such Series B Exchange Notice for
cash in an amount equal to the original Capital Contribution per Series B
Preferred Unit and all accrued and unpaid distributions thereon to the date of
redemption. The General Partner may exercise its option to redeem the Series B
Preferred Units for cash pursuant to this Section 16.9.A(ii) by giving each
holder which tendered its Series B Preferred Units pursuant to such Series B
Exchange Notice, notice of its election to redeem for cash, within five (5)
Business Days after receipt of the Series B Exchange Notice, by (m) fax, and (n)
registered mail, postage paid, at the address of each such holder as it may
appear on the records of the Partnership stating (A) the redemption date, which
shall be no later than sixty (60) days following the receipt of the Series B
Exchange Notice, (B) the Series B Redemption Price, (C) the place or places
where the Series B Preferred Units are to be surrendered for payment of the
Series B Redemption Price, (D) that distributions on the Series B Preferred
Units will cease to accrue on such redemption date; (E) that payment of the
Series B Redemption Price will be made upon presentation and surrender of the
Series B Preferred Units and (F) 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 being redeemed.
(iii) In the event an exchange of all or a portion of Series B Preferred
Units pursuant to SECTION 16.9.A(I) would violate the provisions on ownership
limitation of the B Preferred Shares set forth in Article Nineteen of the
Declaration of Trust with respect to the Series B Preferred Shares, the General
Partner shall give written notice thereof to each holder of record of Series B
Preferred Units, within fifteen (15) Business Days following receipt of the
Series B Exchange Notice, by (m) fax, and (n) registered mail, postage prepaid,
at the address of each such holder set forth in the records of the Partnership.
In such event, each holder of Series B Preferred Units shall be entitled to
exchange, pursuant to the provision of Section 16.9.B, a number of Series B
Preferred Units which would comply with the provisions on the ownership
limitation of the B Preferred Shares set forth in such Article Nineteen and any
Series B Preferred Units not so exchanged (the "EXCESS UNITS") shall be redeemed
by the Partnership for cash in an amount equal to the original Capital
<PAGE> 52
Contribution per Excess Unit, plus any accrued and unpaid distributions thereon,
whether or not declared, to the date of redemption. The written notice of the B
Preferred Shares shall state (A) the number of Excess Units held by such holder,
(B) the Series B Redemption Price of the Excess Units, (C) the date on which
such Excess Units shall be redeemed, which date shall be no later than sixty
(60) days following the receipt of the Series B Exchange Notice, (D) the place
or places where such Excess Units are to be surrendered for payment of the
Series B Redemption Price, (E) that distributions on the Excess Units will cease
to accrue on such redemption date, and (F) that payment of the Series B
Redemption Price will be made upon presentation and surrender of such Excess
Units. In the event an exchange may, in the reasonable judgment of the General
Partner, result in Excess Units, as a condition to such exchange, each holder of
such units agrees to provide representations and covenants reasonably requested
by the General Partner relating to (1) the widely held nature of the interests
in such holder, sufficient to assure the General Partner that the holder's
ownership of the Series B Preferred Shares (without regard to the limits
described above) will not cause any individual to own in excess of 9.8% in value
of all shares of beneficial interest of the General Partner Entity; and (2) to
the extent such holder can so represent and covenant without obtaining
information from its owners, the holder's ownership of tenants of the
Partnership and its affiliates. Each holder shall provide the General Partner
with any reasonably requested information which the General Partner shall
require in order to determine whether an exchange of all or any portion of the
Series B Preferred Units pursuant to Section 16.9.A(i) hereof would violate the
limitations on ownership set forth in the Declaration of Trust; provided that
General Partner only shall be entitled to such information from such holder to
the extent that such holder has such information reasonably available. To the
extent that the General Partner requests any such information during the fifteen
(15) Business Day period referenced in the first sentence of this Section
16.9.A(iii) and the holder shall fail to provide such information during such
fifteen (15) Business Day period, such period shall be extended to the date that
is three (3) Business Days following the delivery by the holder of such
information to the General Partner.
(iv) The redemption of Series B Preferred Units described in Section
16.9.A(ii) and (iii) shall be subject to the provisions of Section 16.6.B (i)
and Section 16.6.C(ii); PROVIDED, HOWEVER, that the term "Series B Redemption
Price" in such Sections shall be read to mean the original Capital Contribution
per Series B Preferred Unit being redeemed plus all accrued and unpaid
distributions to the redemption date.
<PAGE> 53
B. PROCEDURE FOR EXCHANGE. (i) Any exchange shall be exercised pursuant to
a notice of exchange (the "SERIES B EXCHANGE NOTICE") delivered to the General
Partner by the holder who is exercising such exchange right, by (a) fax and (b)
by certified mail postage prepaid. The exchange of Series B Preferred Units, or
a specified portion thereof, may be effected after the fifth (5th) Business Day
following the expiration of the fifteen (15) day period further described in the
first sentence of Section 16.9.A(iii), by delivering certificates, if any,
representing such Series B Preferred Units to be exchanged together with written
notice of exchange and an assignment of such Series B Preferred Units and such
opinions of counsel and further assurances further described in Section
16.6.C(i) hereof to the office of the General Partner maintained for such
purpose. Currently, such office is Three Greenway Plaza, Suite 1300, Houston,
Texas 77046. Each exchange will be deemed to have been effected immediately
prior to the close of business on the date on which such Series B Preferred
Units to be exchanged (together with all required documentation) shall have been
surrendered and notice shall have been received by the General Partner as
aforesaid and the Series B Exchange Price shall have been paid. Any Series B
Preferred Shares issued pursuant to this Section 16.9 shall be delivered as
shares which are duly authorized, validly issued, fully paid and nonassessable,
free of pledge, lien, encumbrance or restriction other than those provided in
the Declaration of Trust, the Bylaws of the General Partner Entity, the
Securities Act and relevant state securities or blue sky laws.
(ii) In the event of an exchange of Series B Preferred Units for Series B
Preferred Shares, an amount equal to the accrued and unpaid distributions,
whether or not declared, to the date of exchange on any Series B Preferred Units
tendered for exchange shall (a) accrue on the shares of the Series B Preferred
Shares into which such Series B Preferred Units are exchanged, and (b) continue
to accrue on such Series B Preferred Units, which shall remain outstanding
following such exchange, with the General Partner as the holder of such Series B
Preferred Units. Notwithstanding anything to the contrary set forth herein, in
no event shall a holder of a Series B Preferred Unit that was validly exchanged
into Series B Preferred Shares pursuant to this section (other than the General
Partner now holding such Series B Preferred Unit), receive any cash distribution
from the Partnership, if such holder, after exchange, is entitled to receive a
cash distribution with respect to the Series B Preferred Shares for which such
Series B Preferred Unit was exchanged or redeemed.
<PAGE> 54
(iii) Fractional shares of Series B Preferred Shares are not to be issued
upon exchange but, in lieu thereof, the General Partner will pay a cash
adjustment based upon the fair market value of the Series B Preferred Shares on
the day prior to the exchange date as determined in good faith by the Board of
Directors of the General Partner.
C. ADJUSTMENT OF SERIES B EXCHANGE PRICE. (i) The Series B Exchange Price
is subject to adjustment upon certain events, including (a) subdivisions,
combinations and reclassification of the Series B Preferred Shares, and (b)
distributions to all holders of Series B Preferred Shares of evidence of
indebtedness of the General Partner Entity or assets (including securities, but
excluding dividends and distributions paid in cash out of equity applicable to
Series B Preferred Shares).
(ii) In case the General Partner Entity 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
Entity's capital shares or sale of all or substantially all of the General
Partner Entity's assets), in each case as a result of which the Series B
Preferred Shares will be converted into the right to receive shares of capital
shares, other securities or other property (including cash or any combination
thereof), each Series B Preferred Unit will thereafter be exchangeable into the
kind and amount of shares of capital shares and other securities and property
receivable (including cash or any combination thereof) upon the consummation of
such transaction by a holder of that number of shares of Series B Preferred
Shares or fraction thereof into which one Series B Preferred Unit was
exchangeable immediately prior to such transaction. The General Partner Entity
may not become a party to any such transaction unless the terms thereof are
consistent with the foregoing. In addition, so long as either Series B Preferred
Partner, or any of their permitted successors or assigns, hold any Series B
Preferred Units, the General Partner Entity shall not, without the affirmative
vote of the holders of at least two-thirds of the Series B Preferred Units
outstanding at the time: (a) designate or create, or increase the authorized or
issued amount of, any class or series of shares ranking prior to the Series B
Preferred Shares with respect to the payment of distributions or rights upon
<PAGE> 55
liquidation, dissolution or winding-up or reclassify any authorized shares of
the General Partner Entity into any such shares, or create, authorize or issue
any obligations or security convertible into or evidencing the right to purchase
any such shares; (b) designate or create, or increase the authorized or issued
amount of, any Parity Preferred Shares or reclassify any authorized shares of
the General Partner Entity into any such shares, or create, authorize or issue
any obligations or security convertible into or evidencing the right to purchase
any such shares, but only to the extent that such Parity Preferred Shares are
issued to an Affiliate of the General Partner Entity; (c) amend, alter or repeal
the provisions of the Declaration of Trust (including the Series B Designation)
or bylaws of the General Partner Entity, whether by merger, consolidation or
otherwise, that would materially and adversely affect the powers, special
rights, preferences, privileges or voting power of the Series B Preferred Shares
or the holders of the Series B Preferred Shares or the Series B Preferred Units;
PROVIDED, HOWEVER, that any increase in the amount of authorized preferred
shares of beneficial interest of the General Partner Entity ("PREFERRED SHARES")
or the creation or issuance of any other series or class of Preferred Shares, or
any increase in the amount of authorized shares of each class or series, in each
case ranking either (1) junior to the Series B Preferred Shares with respect to
the payment of distributions and the distribution of assets upon liquidation,
dissolution or winding-up, or (2) on a parity with the Series B Preferred Shares
with respect to the payment of distributions or the distribution of assets upon
liquidation, dissolution or winding-up to the extent such Preferred Shares are
not issued to an Affiliate of the General Partner Entity, shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers.
SECTION 16.10 NO CONVERSION RIGHTS
The holders of the Series B Preferred Units shall not have any rights to
convert such shares into shares of any other class or series of shares or into
any other securities of, or interest in, the Partnership.
SECTION 16.11 NO SINKING FUND
No sinking fund shall be established for the retirement or redemption of
Series B Preferred Units."
10. Exhibit B, Paragraph 3. The words "and XVI" are inserted after the word
"XIII" in Paragraph 3 of Exhibit B of the Agreement.
11. The Agreement is hereby amended by adding to Exhibit A of said
Agreement the addendum to Exhibit A presently attached hereto and made a part
hereof, so that all references to "Exhibit A" in the Agreement shall be deemed
to be references to Exhibit A which shall include the addendum to Exhibit A
attached hereto.
<PAGE> 56
12. 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.
13. This Amendment shall be binding upon and shall inure to the benefit of
the parties hereto, their respective legal representatives, successors and
assigns.
14. 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.
<PAGE> 57
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
GENERAL PARTNER:
CPT-GP, INC.
By: /S/ G. STEVEN DAWSON
------------------------------------------------
Name: G. Steven Dawson
Title: Senior Vice President and
Chief Financial Officer
ADDITIONAL LIMITED PARTNERS
BELCREST REALTY CORPORATION
By: /S/ THOMAS E. FAUST, JR.
------------------------------------------------
Name: Thomas E. Faust, Jr.
Title: Executive Vice President
BELAIR REAL ESTATE CORPORATION
By: /S/ THOMAS E. FAUST, JR.
------------------------------------------------
Name: Thomas E. Faust, Jr.
Title: Executive Vice President
CAMDEN PROPERTY TRUST, for purposes of Sections
8.5.C, 16.5.A and 16.9
By: /S/ RICHARD J. CAMPO
------------------------------------------------
Name: Richard J. Campo
Title: Chairman and Chief Executive Officer
<PAGE> 58
Exhibit 99.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of February
23, 1999, is entered into by and between CAMDEN PROPERTY TRUST, a Texas real
estate investment trust (the "COMPANY" or the "REIT"), and Belcrest Realty
Corporation, a Delaware corporation ("BELCREST") and Belair Real Estate
Corporation, a Delaware corporation ("BELAIR"; and together with Belcrest, the
"CONTRIBUTORS").
RECITALS
WHEREAS, in connection with the offering of 4,000,000 8.5% Series B
Cumulative Redeemable Preferred Units (the "OP UNITS") of Camden Operating,
L.P., a Delaware limited partnership ( the "OPERATING PARTNERSHIP"),
Contributors contributed to the Operating Partnership $100,000,000 in return for
the OP Units on terms and conditions set forth in the Contribution Agreement,
dated as of the date hereof, by and among Belair, Belcrest, the Company and
Operating Partnership (the "CONTRIBUTION AGREEMENT");
WHEREAS, the Contributors will receive the OP Units in exchange for cash
contributed to the Operating Partnership;
WHEREAS, pursuant to the Third Amended and Restated Agreement of Limited
Partnership of the Operating Partnership (as amended by that certain First
Amendment to Third Amended and Restated Agreement of Limited Partnership, dated
as of the date hereof, the "AGREEMENT OF LIMITED PARTNERSHIP"), the OP Units
owned by the Contributors or their successors and assigns will be redeemable for
cash or exchangeable for shares of the Company's 8.5% Series B Cumulative
Redeemable Preferred Shares of Beneficial Interest (the "PREFERRED SHARES") upon
the terms and subject to the conditions contained therein; and
WHEREAS, in order to induce the Contributors to enter into the Contribution
Agreement, the Company and the Operating Partnership have agreed to enter into
this Agreement and to provide registration rights set forth herein to the
Contributors and any subsequent holder or holders of the OP Units.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
<PAGE> 59
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"AFFILIATE" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"AGREEMENT" shall have the meaning set forth in the preamble.
"AGREEMENT OF LIMITED PARTNERSHIP" shall have the meaning set forth
therefor in the Recitals.
"BELAIR" shall have the meaning set forth in the preamble.
"BELCREST" shall have the meaning set forth in the preamble.
"CLOSING DATE" shall mean the date of closing of the Company's sale of
Series B Preferred Units to the Contributors.
"COMPANY" shall have the meaning set forth in the preamble and shall also
include the Company's successors or other parties who succeed to the Company's
obligations hereunder.
"CONTRIBUTION AGREEMENT" shall have the meaning set forth in the preamble.
"CONTRIBUTORs" shall have the meaning sets forth in the preamble and shall
include their successors and permitted assigns.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and any successor statute thereto, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the relevant time.
"HOLDER" shall mean (i) any Contributor or (ii) any Person holding
Registrable Securities as a result of a transfer or assignment of Registrable
Securities to that Person other than pursuant to an effective Registration
Statement or Rule 144 under the Securities Act, in each case where securities
sold in such transaction may be resold in a public distribution without
subsequent registration under the Securities Act (provided that (a) such
transfer or assignment occurred pursuant and in accordance with Section 16.9 of
the Agreement of Limited Partnership, and (b) any such transferee assumes the
obligations under, and becomes a party to, this Agreement), and together the
entities described in clauses (i) and (ii) hereof shall be "HOLDERS".
"INDEMNIFIED PARTY" shall have the meaning set forth in SECTION 7(C)
hereof.
<PAGE> 60
"INDEMNIFYING PARTY" shall have the meaning set forth in SECTION 7(C)
hereof.
"OP UNITS" shall have the meaning set forth therefor in the Recitals.
"OPERATING PARTNERSHIP" shall have the meaning set forth therefor in the
Recitals.
"PERSON" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or government or agency or political subdivision
thereof.
"PIGGYBACK REGISTRATION" shall have the meaning set forth in SECTION 2(C)
hereof.
"PREFERRED SHARES" shall have the meaning set forth therefor in the
Recitals.
"PRIMARY REGISTRATION" shall have the meaning set forth in SECTION 2(C)
hereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary Prospectus, and any such Prospectus as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by a
Registration Statement, and by all other amendments and supplements to such
Prospectus, including post-effective amendments, and in each case including all
material incorporated by reference therein.
"REGISTERING HOLDERS" shall have the meaning set forth in SECTION 2(B)
hereof.
"REGISTRABLE SECURITIES" shall mean (i) the shares of Preferred Shares
issued by the Company to the Holders of the Series B Preferred Units in exchange
for the Series B Preferred Units and (ii) any securities issued or issuable with
respect to the Preferred Shares issued in exchange for the Series B Preferred
Units by way of a stock split or stock dividend or in connection with a
combination of shares recapitalization, merger, consolidation or other
reorganization; PROVIDED, HOWEVER, that the securities listed above shall cease
to be Registrable Securities to the extent that (i) a Registration Statement
with respect to such securities shall have been declared effective under the
Securities Act and remains effective as provided herein, (ii) all such
securities are eligible for resale pursuant to Rule 144(k) and are held by a
Holder who is not an affiliate of the Company, within the meaning of Rule 144(a)
(a "RULE 144 AFFILIATE"), (iii) such securities are held by a Holder who is a
Rule 144 Affiliate and all such securities held by such Holder are eligible for
resale in accordance with Rule 144(e)(1), or (iv) such securities have been
disposed of pursuant to such Registration Statement.
<PAGE> 61
"REGISTRATION EXPENSES" shall mean any and all expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation: (i) all SEC, stock exchange or National Association of Securities
Dealers, Inc. ("NASD") registration, listing and filing fees, (ii) all
reasonable fees and expenses incurred in connection with compliance with federal
or state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any underwiters and one counsel (reasonably
acceptable to Company) to the Holders in connection with state or federal
securities law compliance and blue sky qualification of any of the Registrable
Securities and the preparation of a "blue sky" memorandum and compliance with
the rules of the NASD), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, duplicating, printing, delivering and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements,
certificates and other documents relating to the performance of and compliance
with this Agreement, (iv) all fees and expenses incurred in connection with the
listing of any of the Registrable Securities on any securities exchange or The
NASDAQ National Market pursuant to SECTION 4(K) hereof, (v) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company (including, without limitation, the expenses of any
annual or special audit and comfort letters required by the Underwriters), but
excluding underwriting discounts and commission and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Holder; (vi)
Securities Act liability insurance, if the Company so desires; and (vii) fees
and expenses of other Persons reasonably necessary in connection with the
registration, including any experts, transfer agent or registrar, retained by
the Company.
"REGISTRATION REQUEST" shall have the meaning set forth in SECTION 2(B)
hereof.
"REGISTRATION STATEMENT" shall mean a Registration Statement of the Company
which covers all of the Registrable Securities on an appropriate form under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"REIT" shall have the meaning set forth in the preamble.
"SEC" shall mean the Securities and Exchange Commission or any successor
federal agency.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and any
successor statute thereto, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect at the relevant time.
"SERIES B PREFERRED UNITS" shall have the meaning therefor set forth in the
preamble hereof.
"UNDERWRITER" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
"UNDERWRITTEN OFFERING" shall mean a sale of securities of the Company to
an underwriter or underwriters for reoffering to the public.
<PAGE> 62
2. REGISTRATION UNDER THE SECURITIES ACT.
(A) FILING OF SHELF REGISTRATION STATEMENT. The Company shall file, on or
before the date which is the tenth (10th) anniversary of the Closing Date or
such earlier date (i) as all Series B Preferred Units shall be exchanged for
Preferred Shares or (ii) as all Preferred Shares shall be distributed pursuant
to Section 16.5.A of the Agreement of Limited Partnership, a "shelf"
Registration Statement providing for the sale of all of the Registrable
Securities of the Holder. The Company shall use all commercially reasonable
efforts to have such shelf Registration Statement declared effective by the SEC
as soon as practicable thereafter. The Company agrees to use all commercially
reasonable efforts to keep the shelf Registration Statement continuously
effective for a period of two (2) years following the date the Registration
Statement is declared effective, or such shorter period which will terminate
when all of the Registrable Securities covered by the shelf Registration
Statement have been sold pursuant to the shelf Registration Statement. The
Company further agrees, if necessary, to supplement or amend the shelf
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration. The shelf registration provided
for in this SECTION 2(A) may be an Underwritten Offering.
(B) DEMAND REGISTRATION. (i) At any time during which a "shelf"
Registration Statement is not effective with respect to the Registrable
Securities, upon receipt of a written request (a "REGISTRATION Request"), which
shall include a description of such Holders' proposed method of distribution
(which method may also include an Underwritten Offering by a nationally
recognized Underwriter selected by the Company and reasonably acceptable to the
Registering Holders) from Holders holding Registrable Securities having an
aggregate expected offering price of at least $20,000,000 (or, if the expected
offering price of all remaining Registrable Securities should be less than
$20,000,000, such lesser amount), the Company shall (i) promptly give notice of
the Registration Request to all non-requesting Holders and (ii) prepare and file
with the SEC, within sixty (60) days after receipt of such Registration Request,
a Registration Statement for the sale of all Registrable Securities held by the
requesting Holders and any other Holder who makes a written request of the
Company to have her or his Registrable Securities included in such Registration
Statement, which such written request must be received by the Company within ten
(10) days after such Holder receives the Registration Request (all of such
Holders, collectively, the "REGISTERING HOLDERS"). Upon receipt of such written
request, the Company shall use all commercially reasonable efforts to cause such
Registration Statement to be declared effective within one hundred twenty (120)
days after receipt of a Registration Request. The Company shall keep such
Registration Statement continuously effective until the earlier of either: (i)
the date on which all Registrable Securities have been sold pursuant to such
Registration Statement or Rule 144 or (ii) one (1) year from the effective date
of the Registration Statement.
<PAGE> 63
(ii) The Company shall not be required to effect more than three (3)
registrations pursuant to this SECTION 2(B); PROVIDED, HOWEVER, Company shall
effect one additional registration in accordance with the provisions of SECTION
2(B)(I) hereof if requested to do so by a Holder who receives Registrable
Securities pursuant to Section 16.5.A. of the Agreement of Limited Partnership
(without regard to the dollar limitation set forth therein).
(iii) If any of the Registrable Securities registered pursuant to a
Registration Statement filed under this SECTION 2(B) are to be sold in an
Underwritten Offering, and the lead managing Underwriter advises the Holders in
writing that in its opinion the total number or dollar amount of Registrable
Securities proposed to be sold in such offering is such as to materially and
adversely affect the success of such offering, then the Company will include in
such registration, first, the Registrable Securities of the Holders and, second,
any securities to be sold for the account of the Company and for the account of
other security holders of the Company who have contractual rights to participate
in such registration (the "OTHER HOLDERS") electing to include (but not being
entitled to demand inclusion of) securities in such registration (it being
understood that such lead managing Underwriter shall have the right to eliminate
entirely the participation in such registration of the Company and such Other
Holders).
(iv) The Company shall be entitled to postpone, for a reasonable period of
time not in excess of ninety (90) days, the filing of a Registration Statement
of the Company determines, in the good faith exercise of its reasonable business
judgement, that such registration and offering could materially adversely affect
the BONA fide financing plans of the Company or would require the disclosure of
information, the premature disclosure of which could materially adversely affect
the Company or any transaction under consideration by the Company; PROVIDED,
HOWEVER, that the Company shall not be entitled to such postponement more than
once in any 360-day period.
(C) PIGGYBACK REGISTRATION RIGHTS. (i) If the Company proposes to file a
Registration Statement in respect to any of its equity securities (a "PRIMARY
REGISTRATION") (other than a Registration Statement (a) on Form S-4 or Form S-8
or any successor forms thereto, (b) filed solely in connection with an offering
made solely to employees of the Company, (c)filed solely in connection with a
merger, exchange offer or similar transaction or (d) in connection with the
acquisition of assets or businesses by the Company or its subsidiaries) and a
Registration Statement is not otherwise effective with respect to the Preferred
Shares issuable upon exchange of the Series B Preferred Units, then the Company
shall promptly give written notice of such proposed filing to the Holders of
Registrable Securities and such notice shall offer such Holders the opportunity
to register such number of shares of Registrable Securities as each such Holder
may request (a "PIGGYBACK REGISTRATION"). The Company shall use all commercially
reasonable efforts to include or to cause the managing Underwriter or
Underwriters of a proposed Underwritten Offering to permit the Registrable
Securities requested to be included in a Piggyback Registration to be included
on the same terms and conditions as any similar securities of the Company
included therein.
<PAGE> 64
(ii) Any Holder requesting inclusion of Registrable Securities pursuant to
this SECTION 2(C) may, prior to the effective date of the Registration Statement
relating to such registration, revoke such request by delivering written notice
of such revocation to the Company and the managing Underwriter, if any, at least
two (2) business days prior to the effective date of the registration; PROVIDED,
HOWEVER, that if the Company, in consultation with its financial and legal
advisors, determines that such revocation would materially delay the
registration or otherwise require a recirculation of the Prospectus contained in
the Registration Statement, then such Holder shall have no such right to revoke
its request. If the withdrawal of any Registrable Securities would allow, within
the marketing limitations set forth above, the inclusion in the underwriting of
a greater number of shares of Registrable Securities, then, to the extent
practicable and without delaying the underwriting, the Company shall offer to
the Holders an opportunity to include additional shares of Registrable
Securities, which additional Registrable Securities shall be included in such
registration pro rata among the holders of Registrable Securities requesting
such registration and the holders of such other securities on the basis of the
number of securities requested for inclusion in such registration by each such
holder. Any Registrable Securities excluded or withdrawn from such underwriting
shall also be withdrawn from registration and shall not be transferred in a
public distribution prior to ninety (90) days after the effective date of the
Registration Statement relating thereto, or such shorter period of time as the
managing Underwriter may require.
(iii) The Company shall have the right to terminate or withdraw any
registration initiated by it under this SECTION 2(C) prior to the effectiveness
of such registration whether or not any Holder has elected to include securities
in such registration.
(iv) The Company shall cause the lead managing Underwriter of a proposed
Underwritten Offering to permit Holders of Registrable Securities requested to
be included in the registration for such offering to include all such
Registrable Securities on the same terms and conditions as any other securities
of the Company included therein. Notwithstanding the foregoing, in any of the
securities registered pursuant to the Piggyback Registration are to be sold in a
firm commitment Underwritten Offering and the lead managing Underwriter advises
the Holders in writing that in its opinion the total number or dollar amount of
Registrable Securities proposed to be sold in such offering is such as to
materially and adversely affect the success of such offering, then the Company
will include in such registration, first, the securities that the Company
proposes to sell and, second, the Registrable Securities of the Holders and the
securities to be sold for the account of Other Holders, PRO RATA among such
holders, taken together, on the basis of the number of securities requested to
be included by all such holders participating in such offering (it being
understood that such lead managing Underwriter shall have the right to eliminate
entirely the participation in such registration of all such holders).
(D) EXPENSES. The Company shall pay all Registration Expenses in connection
with any registration undertaken pursuant to SECTIONS 2(A), 2(B) and 2(C)
hereof. The Holder shall pay all brokerage and sales commissions, fees and
disbursements of the Holder's counsel (other than as expressly otherwise
provided herein), underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Registration Statement.
3. HOLD-BACK AGREEMENT.
Each Holder of Registrable Securities shall agree not to effect any public
sale or distribution of securities of the Company of the same or similar class
or classes of the securities included in the Registration Statement or any
securities convertible into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 or Rule 144A under the Securities Act,
during such periods as reasonably requested by the Underwriter in an
underwritten public offering by the Company; PROVIDED that no Holder shall be so
obligated under this SECTION 3 in the event that any such period requested by
the Underwriter is longer than ninety (90) days and or occurs more than once in
any twelve (12) month period.
<PAGE> 65
4. REGISTRATION PROCEDURES.
In connection with the obligations of the Company with respect to a
Registration Statement pursuant to SECTIONS 2(A), 2(B) and 2(C) hereof, the
Company shall use all commercially reasonable efforts to effect or cause to be
effected the registration of the Registrable Securities under the Securities Act
to permit the sale of such Registrable Securities by the Holder in accordance
with its intended method or methods of distribution, and the Company shall:
(A) prepare and file with the SEC, as specified in SECTION 2 hereof, a
Registration Statement, which Registration Statement shall comply as to form in
all material respects with the requirements of the applicable form and include
all financial statements required by the SEC to be filed therewith, and use all
commercially reasonable efforts to cause such Registration Statement to become
effective and remain effective in accordance with SECTION 2 hereof;
(B) subject to SECTION 4(J) hereof, prepare and file with the SEC such
amendments and post-effective amendments to each such Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period; cause each such Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
or any similar rule that may be adopted under the Securities Act; and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by each Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the selling
Holder thereof;
(C) furnish to the Holder of Registrable Securities without charge, as many
copies of each Prospectus, including each or summary prospectus preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Securities; the Company consents to the use
of any such Prospectus, including each preliminary Prospectus, by the Holder of
Registrable Securities, if any, in connection with the offering and sale of the
Registrable Securities covered by any such Prospectus;
<PAGE> 66
(D) use all commercially reasonable efforts to register or qualify, or
obtain exemption from registration or qualification for, all Registrable
Securities by the time the applicable Registration Statement is declared
effective by the SEC under all applicable state securities or "blue sky" laws of
such jurisdictions as the Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing, keep each such
registration or qualification or exemption effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; PROVIDED, HOWEVER, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction or to register as a broker or dealer in such jurisdiction where it
would not otherwise be required to qualify but for this SECTION 4(D), (ii)
subject itself to taxation in any such jurisdiction, or (iii) submit to the
general service of process in any such jurisdiction;
(E) notify the Holder of Registrable Securities promptly and, if requested
by such Holder, confirm such advice in writing (i) when a Registration Statement
has become effective and when any post-effective amendments and supplements
thereto become effective, (ii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
and (iii) of the happening of any event during the period a Registration
Statement is effective as a result of which such Registration Statement or the
related Prospectus contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and (iv) of the Company's receipt of any
notification of the suspension of the qualification of any Registrable
Securities covered by a Registration Statement for sale in any jurisdiction; in
the event the Company shall give notice as to the occurrence of any event
described SECTIONS 4(E)(II), 4(E)(III) or 4(E)(IV) hereof, the Company shall
extend the period during which such Registration Statement shall be maintained
effective by the number of days during the period from and including the date of
the giving of such notice to the date the Company delivers notice that
disposition may be made;
(F) furnish to the Holder of Registrable Securities copies of any request
by the SEC or any state securities authority of amendments of supplements to a
Registration Statement and Prospectus or for additional information;
(G) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(H) provide to the Holders, at no cost to such Holders, a copy of the
Registration Statement and any amendment thereto with respect to Registrable
Securities, each Prospectus contained in such Registration Statement or
post-effective amendment and any amendment or supplement thereto and such other
documents as such Holders may reasonably request in order to facilitate the
disposition of their Registrable Securities covered by such Registration
Statement; the Company consents to the use of each such Prospectus and any
supplement thereto by such Holders in connection with the offering and sale of
their Registrable Securities covered by such Registration Statement or any
amendment thereto;
<PAGE> 67
(I) upon the occurrence of any event contemplated by SECTION 4(E)(III)
hereof, immediately notify all Holders of the Registrable Securities affected by
such event of such event and prepare and provide to such Holders a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference and file any required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(J) make available for inspection by representatives of the Holder of the
Registrable Securities and any Underwriters participating in any disposition
pursuant to a Registration Statement and any special counsel or accountant
retained by such Holders or Underwriters, all financial and other records,
pertinent corporate documents and properties of the Company and cause the
respective officers, directors and employees of the Company to supply all
information reasonably requested by any such representative, Underwriter,
special counsel or accountant in connection with a Registration Statement;
PROVIDED, HOWEVER, that such records, documents or information which the Company
determines, in good faith, to be confidential and notifies such representatives,
Underwriters ' special counsel or accountants are confidential shall not be
disclosed by the representatives, underwriters special counsel or accountants
unless (i) the disclosure of such records, documents or information is necessary
to avoid or correct a misstatement or omission in a Registration Statement, (ii)
the release of such records, documents or information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, or (iii) such
records, documents or information have been generally made available to the
public;
(K) use all commercially reasonable efforts (including, without limitation,
seeking to cure any deficiencies (within the Company's control) cited by such
exchange or market in the Company's listing application) to list all Registrable
Securities on The New York Stock Exchange (unless the Company qualifies and
chooses to list all Registrable Securities on the American Stock Exchange or The
NASDAQ National Market, in which event the Company shall use its best efforts to
list all Registrable Securities on the American Stock Exchange or The NASDAQ
National Market);
(L) provide a CUSIP number for all Registrable Securities, not later than
the effective date of the Registration Statement;
(M) use all commercially reasonable efforts to comply with the Securities
Act and the Exchange Act in connection with the offer and sale of the
Registrable Securities to be sold pursuant to a Registration Statement, and,
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering at least twelve (12) months which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
<PAGE> 68
(N) provide and cause to be maintained a transfer agent for all Registrable
Securities covered by such Registration Statement from and after a date not
later than the effective date of such Registration Statement;
(O) cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing their Registrable Securities to be sold
pursuant to a Registration Statement and not bearing any Securities Act legend;
and enable certificates for such Registrable Securities be issued for such
numbers of shares and registered in such names as such Holders may reasonably
request at least two (2) business days prior to any sale of their Registrable
Securities;
(P) enter into customary agreements (including an underwriting agreement or
securities sales agreement, if any, in customary form) containing such
representations and warranties to the Holders of such Registrable Securities and
the Underwriters, if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar underwritten offerings as may be
reasonably requested by them and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities; and
(Q) furnish to each registering Holder of Registrable Securities and to
each Underwriter, if any, a signed counterpart, addressed to such registering
Holder of Registrable Securities or Underwriter, of (i) an opinion or opinions
of counsel to the Company and (ii) a comfort letter or comfort letters from the
Company's independent public accountants (to the extent permitted by the
standards of the American Institute of Certified Public Accountants), each in
customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as the Holders of a majority of
the Registrable Securities included in such offering or the managing Underwriter
or Underwriters therefor reasonably request.
The Company may require the Holder of Registrable Securities to furnish to
the Company such information regarding the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing.
The Holders agree that, upon receipt of any notice from the Company of the
happening of any event of the kind described in SECTION 4(E)(III) hereof, such
Holder will immediately discontinue disposition of Registrable Securities
pursuant to a Registration Statement until such Holders' receipt of the copies
of the supplemented or amended Prospectus, if so directed by the Company, such
Holders will deliver to the Company (at the expense of the Company) all copies
in its possession, other than permanent file copies then in such Holders'
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice.
<PAGE> 69
5. BLACK-OUT PERIOD.
(A) Following the effectiveness of a Registration Statement (and the
filings with any state securities commissions), the Company may direct the
Holder to suspend sales of the Registrable Securities for such times as the
Company reasonably may determine is necessary and advisable, including the
following events: (i) an underwritten primary offering by the Company where the
Company is advised by the underwriters for such offering that sale of
Registrable Shares under the Registration Statement would have a material
adverse effect on the primary offering, or (ii) pending negotiations relating
to, or consummation of, a transaction or the occurrence of an event (x) that
would require additional disclosure of material information by the Company in
the Registration Statement (or such filings), (y) as to which the Company has a
bona fide business purpose for preserving confidentiality or (z) which renders
the Company unable to comply with SEC requirements, in each case under
circumstances that would make it impractical or inadvisable to cause the
Registration Statement (or such filings) to become effective or to promptly
amend or supplement the Registration Statement on a post-effective basis, as
applicable.
(B) In the case of an event which causes the Company to suspend the
effectiveness of a Registration Statement (a "SUSPENSION EVENT"), the Company
may give notice (a "SUSPENSION NOTICE") to the Holder to suspend sales of the
Registrable Shares so that the Company may correct or update the Registration
Statement (or such filings); PROVIDED, HOWEVER, that such suspension shall
continue only for so long as the Suspension Event or its effect is continuing.
The Holder agrees that it will not effect any sales of the Registrable Shares
pursuant to such Registration Statement (or such filings) at any time after it
has received a Suspension Notice from the Company. If so directed by the
Company, Holder will deliver to the Company all copies of the Prospectus
covering the Registrable Shares held by them at the time of receipt of the
Suspension Notice. The Holder may recommence effecting sales of the Registrable
Shares pursuant to the Registration Statement (or such filings) following
further notice to such effect (an "END OF SUSPENSION NOTICE") from the Company,
which End of Suspension Notice shall be given by the Company promptly following
the conclusion of any Suspension Event and the effectiveness of any required
amendment or supplement to be the Registration Statement.
<PAGE> 70
(C) Notwithstanding the provisions of SECTIONS 5(A) and 5(B) to the
contrary: (i) no Holder shall be subject to the provisions of SECTIONS 5(A) and
5(B) hereof for a period of time in excess of ninety (90) days; and (ii) no
Suspension Notice may be given more than once in any twelve (12) month period.
Moreover, notwithstanding SECTIONS 2(A), 2(B) and 2(C) hereof, if the Company
shall give a Suspension Notice pursuant to this SECTION 5, the Company agrees it
shall extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from the date of the giving of the Suspension Notice to and including the
date when the Holders shall have received the End of Suspension Notice and
copies of the supplemented or amended Prospectus necessary to resume sales.
6. RULE 144 AND RULE 144A.
For so long as the Company is subject to the reporting requirements of
Section 13 or 15 of the Exchange Act, the Company covenants that it will timely
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Securities, make
publicly available other information so long as necessary to permit sales
pursuant to Rule 144 under the Securities Act. The Company also covenants that
it will provide the information required pursuant to Rule 144A(d)(4) under the
Securities Act upon the request of any Holder of Registrable Securities and it
will take such further action as any Holder of Registrable Securities may
reasonably request, all to the extent required from time to time, to enable such
Holder to sell its Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, (b)
Rules 144A under the Securities Act, as such Rule may be amended from time to
time, or (c) any similar rule or regulation hereafter adopted by the SEC. Upon
the request of any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
7. INDEMNIFICATION.
(A) The Company will indemnify each Registering Holder, each such Holder's
officers and directors, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses,
damages, liabilities and expenses (including reasonable legal expenses), arising
out of or based on any untrue statement (or alleged untrue statement) of a
<PAGE> 71
material fact contained in any Registration Statement or prospectus relating to
such Holders' Registrable Securities, or any amendment or supplement thereto, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that the Company will not indemnify and will not
be liable to any Registered Holder in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on (i) any
untrue statement or omission or alleged untrue statement or omission, made in
conformity with and in reliance upon information furnished in writing to the
Company by such Holder or by an underwriter for inclusion therein or (ii) such
Holder's failure to deliver an amended or supplemental Prospectus provided by
the Company, if such claim, loss, damage, liability or expense would not have
arisen had such delivery occurred.
(B) Each Registering Holder will indemnify the Company, each of its trust
managers and each of its officers (including each trust manager and officer who
signs the Registration Statement), each underwriter, if any, of the Company's
securities covered by such Registration Statement, and each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages, liabilities and expenses
(including reasonable legal fees and expenses) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such Registration Statement or prospectus, or any amendment or supplement
thereto, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such Registration Statement or prospectus, in reliance upon
and in conformity with information furnished in writing to the Company by such
Holder for inclusion therein.
(C) Each party entitled to indemnification under this SECTION 7 (the
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought. However,
the failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which it may have to the Indemnified Party
pursuant to the provisions of this SECTION 7, except to the extent of the actual
damages suffered by such delay in notification. The Indemnifying Party shall
assume the defense of such action. including the employment of counsel, which
shall be chosen by the Indemnifying Party and shall be reasonably satisfactory
to the Indemnified Party, and payment of expenses in connection with such
defense. The Indemnified Party shall have the right to employ its own counsel in
any such case, but the legal fees and expenses of such counsel shall be at the
expense of the Indemnified Party unless (i) the employment of such counsel shall
have been authorized in writing by the Indemnifying Party, (ii) the Indemnifying
Party shall not have assumed the defense of such action within a reasonable
period of time, or (iii) the Indemnified Party shall have been reasonably
<PAGE> 72
advised by its counsel that there may be defenses available to it or them which
are different from or additional to those available to Indemnifying Party (in
which case the Indemnifying Party shall not have the right to direct the defense
of such action on behalf of the Indemnified Party), in any of which events such
fees and expenses shall be borne by the Indemnifying Party. No Indemnifying
Party in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to the entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to each such Indemnified Party of a release
from all liability in respect to such claim or litigation.
(D) If the indemnification provided for in this SECTION 7 is unavailable to
a party that would have been an Indemnified Party under this SECTION 7, then
each party that would have been an Indemnifying Party hereunder shall, in lieu
of indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such claims, losses, damages,
liabilities and expenses in such proportion as is appropriate to reflect tile
relative fault of the Indemnifying Party on the one hand and such Indemnified
Party on the other in connection with the statement or omission which resulted
in such claims, losses, damages, liabilities and expenses, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
related to information supplied by the Indemnifying Party or the Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Registering Holder agree that it would not be just and equitable if
contribution pursuant to this SECTION 7 were determined by pro rata allocation
or by any other method of allocation that fails to take account of the equitable
considerations referred to above in this SECTION 7(D). For purposes of this
SECTION 7(D), each person, if any, who controls the Holder within the meaning of
Section 15 of the Securities Act shall have the same rights to contribution as
the Holder and each trust manager of the Company, each officer of the Company
who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act shall have the
same rights to contribution as the Company.
(E) No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(F) In no event shall any Registering Holder be liable for any claims,
losses, damages, liabilities or expenses pursuant to this SECTION 7 in excess of
the net proceeds to such Holder for the sale of such Holder's Registrable
Securities pursuant to a Registration.
<PAGE> 73
8. MISCELLANEOUS.
(A) NO INCONSISTENT AGREEMENT. The Company has not entered into nor will
the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holder of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holder do not in any way conflict with and are not
inconsistent with the rights granted to the holder of the Company's other issued
and outstanding securities under any such agreements.
(B) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
without the written consent of the Company and Holders holding at least 51% of
the then outstanding Registrable Securities.
(C) NOTICES. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to the Contributors, at the address or telecopier number set forth below its
signature hereon, and thereafter at such other address or telecopier number,
notice of which is given in accordance with the provisions of this SECTION 8(C),
(ii) if to an assignee or transferee of the Contributors, to such address or
telecopier number such assignee or transferee shall have provided to the
Company, and (iii) if to the Company, at Three Greenway Plaza, Suite 1300,
Houston, Texas 77046, Attention: Richard J. Campo, telecopier number (713)
354-2599, and thereafter at such other address or telecopier number, notice of
which is given in accordance with the provisions of this SECTION 8(C), with a
copy to Locke Liddell & Sapp LLP, 2001 Ross Avenue, Suite 3000, Dallas, Texas
75201-8001, Attention Bryan L. Goolsby, telecopier number (214) 849-5599. All
such notices and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five (5) business days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next business
day if timely delivered to an air courier guaranteeing overnight delivery.
(D) SUCCESSORS. The rights and obligations of any Holder hereunder may be
assigned to any other Holder. This Agreement shall inure to the benefit of and
be binding upon the permitted successors and assigns of the Company and the
Holder.
(E) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
<PAGE> 74
(F) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(G) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT
TO THE CONFLICTS OF LAW PROVISIONS THEREOF. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(H) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(I) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to complete specific performance of the obligations of any other party under
this Agreement to accordance with the terms and conditions of this Agreement in
any court of the United States or any State thereof having jurisdiction.
(J) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to the subject
matter hereof.
(K) ATTORNEYS' FEES. If the Company or any Holder brings an action to
enforce its rights under this Agreement, the prevailing party in the action
shall be entitled to recover its costs and expenses, including without
limitation, reasonable attorneys' fees, incurred in connection with such action,
including any appeal of such action.
(L) AUTHORITY; BINDING EFFECT. Each party hereto represents and warrants
that it has the fall legal right, power and authority to execute this Agreement,
that this Agreement has been duly authorized, executed and delivered on behalf
of such party and constitutes a valid and binding agreement of such party
enforceable in accordance with its terms.
<PAGE> 75
(M) ADDITIONAL SHARES. The parties agree that any Registration Statement
may register shares that are not Registrable Securities but are equity
securities of the Company held by others, or to be issued to others, provided
the same shall not limit or affect the Company's obligations to Holders with
respect to Registrable Securities hereunder.
(N) LIMITATION OF LIABILITY OF SHAREHOLDERS AND OFFICERS OF THE COMPANY.
ANY OBLIGATION OR LIABILITY WHATSOEVER OF THE COMPANY WHICH MAY ARISE AT ANY
TIME UNDER THIS AGREEMENT OR ANY OBLIGATION OR LIABILITY WHICH MAY BE INCURRED
BY IT PURSUANT TO ANY OTHER INSTRUMENT, TRANSACTION OR UNDERTAKING CONTEMPLATED
HEREBY SHALL BE SATISFIED, IF AT ALL, OUT OF THE COMPANY'S ASSETS ONLY. NO SUCH
OBLIGATION OR LIABILITY SHALL BE PERSONALLY BINDING UPON, NOR SHALL RESORT FOR
THE ENFORCEMENT THEREOF BE HAD TO, THE PROPERTY OF ANY OF ITS SHAREHOLDERS
(SOLELY AS A RESULT OF THEIR STATUS AS SHAREHOLDERS), TRUST MANAGERS, OFFICERS,
EMPLOYEES OR AGENTS, REGARDLESS OR WHETHER SUCH OBLIGATIONS OR LIABILITY IS IN
THE NATURE OF CONTRACT, TORT OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, THIS
SECTION 8(n) SHALL NOT IN ANY WAY AFFECT OR LIMIT ANY OBLIGATION OR LIABILITY OF
ANY HOLDER UNDER THIS AGREEMENT.
<PAGE> 76
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CAMDEN PROPERTY TRUST
By: /S/ RICHARD J. CAMPO
---------------------------------------------------
Name: Richard J. Campo
Title: Chairman and Chief Executive Officer
BELCREST REALTY CORPORATION
By: /S/ THOMAS E. FAUST, JR.
---------------------------------------------------
Name: Thomas E. Faust, Jr.
Title: Executive Vice President
Address: c/o Eaton Vance Management
24 Federal Street
Boston, Massachusetts 02110
Attention: Alan Dynner
Telecopier: (617) 338-8054
BELAIR REAL ESTATE CORPORATION
By: /S/ THOMAS E. FAUST, JR.
---------------------------------------------------
Name: Thomas E. Faust, Jr.
Title: Executive Vice President
Address: c/o Eaton Vance Management
24 Federal Street
Boston, Massachusetts 02110
Attention: Alan Dynner
Telecopier: (617) 338-8054
<PAGE> 77
Exhibit 99.4
CAMDEN PROPERTY TRUST ANNOUNCES THE PRIVATE PLACEMENT OF $100
MILLION PERPETUAL PREFERRED UNITS
Houston, TEXAS (February 24, 1999) - Camden Property Trust (NYSE:CPT) announced
the successful completion of a private placement of perpetual preferred
operating units issued to institutional investors. The $100 million 8.5% Series
B Cumulative Redeemable Perpetual Preferred Units were issued by Camden's
operating partnership. The units are non-callable for five years, are
subordinate to all debt, and have no mandatory redemption date. Donaldson,
Lufkin & Jenrette acted as agent in the transaction. The net proceeds were used
to reduce balances outstanding on Camden's lines of credit.
Camden Property Trust is one of the nation's largest multifamily REITs and owns
interests in and operates 149 properties containing 51,310 apartment homes in
the Sunbelt and Midwestern markets from Florida to California. Upon completion
of 14 properties under development, the Company's portfolio will increase to
56,968 apartment homes in 163 properties.
For more information, please contact Richard J. Campo or D. Keith Oden at
1-800-9Camden, or locally at (713) 354-2500, or visit our website at
http://www.camdenprop.com.
