AMENDMENT NO. 35 TO THE SECOND
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF HOME PROPERTIES OF NEW YORK, L.P.
This AMENDMENT No. 35 TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF HOME PROPERTIES OF NEW YORK, L.P., dated as of June
5 , 2000 (this "Amendment"), is being executed by Home Properties of New
York, Inc., a Maryland corporation (the "General Partner"), as the general
partner of Home Properties of New York, L.P., a New York limited
partnership (the "Partnership"), pursuant to the authority conferred on the
General Partner by Section 9.10(b)(iii) of the Second Amended and Restated
Agreement of Limited Partnership of Home Properties of New York, L.P.,
dated as of September 23, 1997, as amended (the "Agreement"). Capitalized
terms used, but not otherwise defined herein, shall have the respective
meanings ascribed thereto in the Agreement.
WHEREAS, on June 5 2000, the General Partner filed Articles
Supplementary amending its Charter to designate and classify 500,000 shares
of authorized but unissued shares of its preferred stock, par value $.01
per share, as shares of its Series D Convertible Cumulative Preferred
Stock, par value $.01 per share (the "Series D Preferred Stock");
WHEREAS, in accordance with Section 3.04 of the Agreement, upon the
issuance of any such shares of Series D Preferred Stock, the General
Partner will contribute the net cash proceeds from such issuance to the QRS
(as defined in the Agreement), which will contribute such net cash proceeds
to the Partnership in exchange for a number of Partnership Preferred Units
equal to the number of shares of Series D Preferred Stock so issued, which
Partnership Preferred Units shall have designations, preferences and other
rights, terms and provisions that are substantially the same as the
designations, preferences and other rights, terms and provisions of the
Series D Preferred Stock, except as otherwise set forth herein; and
WHEREAS, pursuant to Section 3.03(a) of the Agreement, the General
Partner is authorized to determine the relative rights and powers of such
Partnership Preferred Units in its sole discretion.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged:
1. The Agreement is hereby amended by the addition of a new exhibit,
entitled "EXHIBIT F", in the form attached hereto, which shall be attached
to and made a part of the Agreement.
2. Except as specifically amended hereby, the terms, covenants,
provisions and conditions of the Agreement shall remain unmodified and
continue in full force and effect and, except as amended hereby, all of the
terms, covenants, provisions and conditions of the Agreement are hereby
ratified and confirmed in all respects.
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
GENERAL PARTNER:
HOME PROPERTIES OF NEW YORK, INC.
By: ___________________________________
Name: Amy L. Tait
Title: Executive Vice President
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EXHIBIT F
PARTNERSHIP UNIT DESIGNATION OF THE SERIES D PARTNERSHIP
PREFERRED UNITS OF HOME PROPERTIES OF NEW YORK, L.P.
1. NUMBER OF UNITS AND DESIGNATION.
A class of Partnership Preferred Units is hereby designated as "Series
D Partnership Preferred Units," and the number of Partnership Preferred
Units constituting such series shall be 500,000.
2. DEFINITIONS.
For purposes of the Series D Partnership Preferred Units, the
following terms shall have the meanings indicated in this Section 2, and
capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Agreement:
"AGREEMENT" shall mean the Second Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of September 23,
1997, as amended.
"CALL DATE" shall have the meaning set forth in paragraph (a) of
Section 5 of this EXHIBIT F.
"COMMON STOCK" shall mean the Common Stock, $0.01 par value per share,
of the General Partner or such shares of the General Partner's capital
stock into which outstanding shares of Common Stock shall be
reclassified.
"DISTRIBUTION PAYMENT DATE" shall mean any date on which cash
dividends are paid on all outstanding shares of the Series D Preferred
Stock.
"JUNIOR PARTNERSHIP UNITS" shall have the meaning set forth in
Section 9 of this EXHIBIT F.
"PARITY PARTNERSHIP UNITS" shall have the meaning set forth in
Section 9 of this EXHIBIT F.
"PARTNERSHIP" shall mean Home Properties of New York, L.P., a New York
limited partnership.
"PARTNERSHIP COMMON UNITS" shall mean a fractional, undivided share of
the Partnership Interests of all Partners issued pursuant to Section
3.01 and 3.02 of the Agreement.
"REPURCHASE DATE " shall have the meaning set forth in paragraph (a)
of Section 6 of this EXHIBIT F.
"SENIOR PARTNERSHIP UNITS" shall have the meaning set forth in Section
9 of this Exhibit E.
"Series D Articles Supplementary " means the Articles Supplementary to
the Articles of Amendment and Restatement of Articles of Incorporation
of the General Partner, dated June 2 , 2000, designating the
Series D Preferred Stock.
"SERIES D PARTNERSHIP PREFERRED UNIT" means a Partnership Preferred
Unit with the designations, preferences and relative, participating,
optional or other special rights, powers and duties as are set forth
in this EXHIBIT F. It is the intention of the General Partner that
each Series D Partnership Preferred Unit shall be substantially the
economic equivalent of one share of Series D Preferred Stock.
"SERIES D PREFERRED STOCK" means the Series D Convertible Cumulative
Preferred Stock, par value $0.01 per share, of the General Partner,
with the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms
and conditions of redemption set forth in the Series D Articles
Supplementary.
3. DISTRIBUTIONS.
On every Distribution Payment Date, the holders of Series D
Partnership Preferred Units shall be entitled to receive distributions
payable in cash in an amount per Series D Partnership Preferred Unit equal
to the per share dividend payable to the holders of record of shares of
Series D Preferred Stock on such Distribution Payment Date. Each such
distribution shall be payable to the holders of record of the Series D
Partnership Preferred Units, as they appear on the records of the
Partnership at the close of business on the Dividend Payment Record Date
(as such term is defined in the Series D Articles Supplementary) for the
dividend payable with respect to the Series D Preferred Stock, on such
Distribution Payment Date. Holders of Series D Partnership Preferred Units
shall not be entitled to any distributions on the Series D Partnership
Preferred Units, whether payable in cash, property or stock, except as
provided herein.
4. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of
the Partnership, whether voluntary or involuntary, before any payment or
distribution of the assets of the Partnership (whether capital, surplus or
otherwise) shall be made to or set apart for the holders of Junior
Partnership Units, the holders of Series D Partnership Preferred Units
shall be entitled to receive One Hundred Dollars ($100.00) (the
"Liquidation Preference") per Series D Partnership Preferred Unit , plus an
amount per Series D Partnership Preferred Unit equal to all dividends
(whether or not declared) accumulated, accrued and unpaid on one share of
Series D Preferred Stock to the date of final distribution to such holders;
but such holders shall not be entitled to any further payment; provided,
that the dividend payable with respect to the Dividend Period (as such term
is defined in the Series D Articles Supplementary) containing the date of
final distribution shall be equal to the greater of: (i) the dividend
provided in Section 3(a)(i) or (iii), as applicable, of the Series D
Articles Supplementary; or (ii) the dividend determined pursuant to Section
3(a)(ii) of the Series D Articles Supplementary for the preceding Dividend
Period. Until the holders of the Series D Partnership Preferred Units have
been paid the Liquidation Preference in full, no payment shall be made to
any holder of Junior Partnership Units upon the liquidation, dissolution or
winding up of the Partnership. If, upon any liquidation, dissolution or
winding up of the Partnership, the assets of the Partnership, or proceeds
thereof, distributable among the holders of Series D Partnership Preferred
Units shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payments on any Parity Partnership Units, then
such assets, or the proceeds thereof, shall be distributed among the
holders of Series D Partnership Preferred Units and any such Parity
Partnership Units ratably in accordance with the same respective amounts
that would be payable on such Series D Partnership Preferred Units and any
such other Parity Partnership Units if all amounts payable thereon were
paid in full. For the purposes of this Section 4, (i) a consolidation or
merger of the Partnership with one or more partnerships or other entities,
or (ii) a sale, lease, conveyance or transfer of all or substantially all
of the Partnership's assets shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary, of the Partnership.
(b) Upon any liquidation, dissolution or winding up of the
Partnership, after payment shall have been made in full to the holders of
Series D Partnership Preferred Units and any Parity Partnership Units, as
provided in this Section 4, any other series or class or classes of Junior
Partnership Units shall, subject to the respective terms thereof, be
entitled to receive any and all assets remaining to be paid or distributed,
and the holders of the Series D Partnership Preferred Units and any Parity
Partnership Units shall not be entitled to share therein.
5. REDEMPTION.
Series D Partnership Preferred Units shall be redeemable by the
Partnership as follows:
(a) At any time that the General Partner exercises its right to
redeem all of the shares of Series D Preferred Stock, the General Partner
shall cause the Partnership to redeem an equal number of Series D
Partnership Preferred Units, at a redemption price per Series D Partnership
Preferred Unit equal to the same price paid by the General Partner to
redeem the Series D Preferred Stock, and such price shall be paid in the
same manner as paid by the General Partner for the Series D Preferred Stock
redeemed on the same date as the date of redemption of the Series D
Preferred Stock (the "Call Date"), in the manner set forth herein and in
the Series D Articles Supplementary; PROVIDED, HOWEVER, that in the event
of a redemption of Series D Partnership Preferred Units, if the Call Date
occurs after a dividend record date for the Series D Preferred Stock and on
or prior to the related Distribution Payment Date, the distribution payable
on such Distribution Payment Date in respect of such Series D Partnership
Preferred Units called for redemption shall be payable on such Distribution
Payment Date to the holders of record of such Series D Partnership
Preferred Units on the applicable dividend record date, and shall not be
payable as part of the redemption price for such Series D Partnership
Preferred Units.
(b) If the Partnership shall redeem Series D Partnership Preferred
Units pursuant to paragraph (a) of this Section 5, from and after the Call
Date (unless the Partnership shall fail to make available the amount of
cash or other forms of consideration necessary to effect such redemption),
(i) except for payment of the redemption price, the Partnership shall not
make any further distributions on the Series D Partnership Preferred Units
so called for redemption, (ii) said units shall no longer be deemed to be
outstanding, and (iii) all rights of the holders thereof as holders of
Series D Partnership Preferred Units of the Partnership shall cease except
the rights to receive the cash payable upon such redemption, without
interest thereon; provided, however, that if a Call Date occurs after a
dividend record date for the Series D Preferred Stock and on or prior to
the related Distribution Payment Date, the full distribution payable on
such Distribution Payment Date in respect of such Series D Partnership
Preferred Units called for redemption shall be payable on such Distribution
Payment Date to the holders of record of such Series D Partnership
Preferred Units on the applicable dividend record date notwithstanding the
prior redemption of such Series D Partnership Preferred Units. No interest
shall accrue for the benefit of the holders of Series D Partnership
Preferred Units to be redeemed on any cash set aside by the Partnership.
6. REPURCHASE
Series D Partnership Preferred Units shall be repurchased by the
Partnership if a "Fundamental Change" or "REIT Termination Event" (as such
terms are defined in the Series D Articles Supplementary) occurs and the
General Partner is required to repurchase any of the shares of Series D
Preferred Stock.
(a) At the time that the General Partner repurchases any of the shares
of Series D Preferred Stock, the General Partner shall cause the
Partnership to repurchase an equal number of Series D Partnership Preferred
Units, at a price per Series D Partnership Preferred Unit equal to the
repurchase price specified in the Series D Articles Supplementary for the
shares of Series D Preferred Stock, and such price shall be paid in the
same manner as paid by the General Partner for the Series D Preferred Stock
repurchased on the same date as the date of repurchase of the Series D
Preferred Stock (the "Repurchase Date"), in the manner set forth herein and
in the Series D Articles Supplementary; PROVIDED, HOWEVER, that in the
event of a repurchase of Series D Partnership Preferred Units, if the
Repurchase Date occurs after a dividend record date for the Series D
Preferred Stock and on or prior to the related Distribution Payment Date,
the distribution payable on such Distribution Payment Date in respect of
such Series D Partnership Preferred Units to be repurchased shall be
payable on such Distribution Payment Date to the holders of record of such
Series D Partnership Preferred Units on the applicable dividend record
date, and shall not be payable as part of the Repurchase Price for such
Series D Partnership Preferred Units.
(b) If the Partnership shall repurchase Series D Partnership Preferred
Units pursuant to paragraph (a) of this Section 6, from and after the
Repurchase Date (unless the Partnership shall fail to make available the
amount of cash or other forms of consideration necessary to effect such
redemption), (i) except for payment of the repurchase price, the
Partnership shall not make any further distributions on the Series D
Partnership Preferred Units repurchased, (ii) said units shall no longer be
deemed to be outstanding, and (iii) all rights of the holders thereof as
holders of Series D Partnership Preferred Units of the Partnership shall
cease except the rights to receive the cash payable upon such repurchase,
without interest thereon; provided, however, that if a Repurchase Date
occurs after a dividend record date for the Series D Preferred Stock and on
or prior to the related Distribution Payment Date, the full distribution
payable on such Distribution Payment Date in respect of such Series D
Partnership Preferred Units to be repurchased shall be payable on such
Distribution Payment Date to the holders of record of such Series D
Partnership Preferred Units on the applicable dividend record date
notwithstanding the prior repurchase of such Series D Partnership
Preferred Units. No interest shall accrue for the benefit of the holders of
Series D Partnership Preferred Units to be repurchased on any cash set
aside by the Partnership.
7. STATUS OF REACQUIRED UNITS.
All Series D Partnership Preferred Units which shall have been issued
and reacquired in any manner by the Partnership shall be deemed cancelled.
8. CONVERSION.
Series D Partnership Preferred Units shall be convertible as follows:
(a) Upon any conversion of shares of Series D Preferred Stock
into shares of Common Stock, the General Partner shall cause a number of
Series D Partnership Preferred Units equal to the number of such converted
shares of Series D Preferred Stock to be converted by the holders thereof
into Partnership Common Units. The conversion ratio in effect for the
conversion of Series D Partnership Preferred Units into Partnership Common
Units pursuant to this Section 8 shall at all times be equal to, and shall
be automatically adjusted as necessary to reflect, the conversion ratio in
effect from time to time for the conversion of Series D Preferred Stock
into Common Stock.
(b) In the event of a conversion of any Series D Partnership
Preferred Units, the Partnership shall make a cash payment for fractional
Partnership Common Units to the holder thereof equal to the cash payment
for fractional shares required to be made by the General Partner to the
holder of the shares of Series D Preferred Stock the conversion of which
required the conversion of such Series D Partnership Preferred Units.
Holders of Series D Partnership Preferred Units at the close of business on
a distribution payment record date shall be entitled to receive the
distribution payable on such units on the corresponding Distribution
Payment Date notwithstanding the conversion thereof following such
distribution payment record date and prior to such Distribution Payment
Date. Except as provided above, the Partnership shall make no payment or
allowance for unpaid distributions on converted units or for distributions
on the Partnership Common Units issued upon such conversion. Each
conversion of Series D Partnership Preferred Units into Partnership Common
Units shall be deemed to have been effected at the same time and date that
the corresponding conversion of Series D Preferred Stock into Common Stock
is deemed to have been effected.
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(c) No fractional Partnership Common Units shall be issued upon
conversion of Series D Partnership Preferred Units. Instead of any
fractional Partnership Common Units that would otherwise be deliverable
upon the conversion of Series D Partnership Preferred Units, the
Partnership shall pay to the holder of such converted units an amount in
cash equal to the cash payable to a holder of an equivalent number of
converted shares of Series D Preferred Stock in lieu of fractional shares
of Common Stock.
(d) The Partnership will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of (i) the issue or
delivery of Partnership Common Units or other securities or property on
conversion or redemption of Series D Partnership Preferred Units pursuant
hereto, and (ii) the issue or delivery of Common Stock or other securities
or property on conversion or redemption of Series D Preferred Stock
pursuant to the terms hereof.
9. RANKING.
The Series D Partnership Preferred Units shall, with respect to the payment
of distributions and rights upon liquidation, dissolution or winding up of
the Partnership, rank: (a) senior to all classes or series of Partnership
Common Units, and to all equity securities issued by the Partnership the
terms of which specifically provide that such equity securities rank junior
to such Series D Partnership Preferred Units (such equity securities are
herein referred to as "Junior Partnership Units"); (b) on a parity with the
Partnership's Series B Partnership Preferred Units and Series C Partnership
Preferred Units, and all other equity securities issued by the Partnership
the terms of which specifically provide that such equity securities rank on
a parity with the Series D Partnership Preferred Units (such equity
securities are herein referred to as "Parity Stock"); and (c) junior to the
Partnership's Series A Partnership Preferred Units, and to all equity
securities issued by the Partnership the terms of which specifically
provide that such equity securities rank senior to the Series D Partnership
Preferred Units (such equity securities are herein referred to as "Senior
Partnership Units"). The term "equity securities" shall not include
convertible debt securities.
10. SPECIAL ALLOCATIONS.
(a) Gross income and, if necessary, gain shall be allocated to
the holders of Series D Partnership Preferred Units for any Fiscal Year
(and, if necessary, subsequent Fiscal Years) to the extent that the holders
of Series D Partnership Preferred Units receive a distribution on any
Series D Partnership Preferred Units (other than an amount included in any
redemption pursuant to Section 5 hereof) with respect to such Fiscal Year.
(b) If any Series D Partnership Preferred Units are redeemed
pursuant to Section 5 hereof, for the Fiscal Year that includes such
redemption (and, if necessary, for subsequent Fiscal Years) (a) gross
income and gain (in such relative proportions as the General Partner in its
reasonable discretion shall determine) shall be allocated to the holders of
Series D Partnership Preferred Units to the extent that the redemption
amounts paid or payable with respect to the Series D Partnership Preferred
Units so redeemed exceeds the aggregate Capital Contributions (net of
liabilities assumed or taken subject to by the Partnership) per Series D
Partnership Preferred Unit allocable to the Series D Partnership Preferred
Units so redeemed and (b) deductions and losses (in such relative
proportions as the General Partner in its reasonable discretion shall
determine) shall be allocated to the holders of Series D Partnership
Preferred Units to the extent that the aggregate Capital Contributions (net
of liabilities assumed or taken subject to by the Partnership) per Series D
Partnership Preferred Unit allocable to the Series D Partnership Preferred
Units so redeemed exceeds the redemption amount paid or payable with
respect to the Series D Partnership Preferred Units so redeemed.
11. RESTRICTIONS ON OWNERSHIP.
The Series D Partnership Preferred Units shall be owned and held
solely by the General Partner or the QRS.
12. VOTE REQUIRED FOR AMENDMENT, MERGER, CONSOLIDATION, ETC.
So long as any Series D Partnership Preferred Units are outstanding,
in addition to any other vote or consent required by law or by the
Agreement, the approval of at least 66-2/3% of the holders of the Series D
Partnership Preferred Units, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall
be necessary for effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions
of the Agreement, or this EXHIBIT F thereto, that materially and
adversely affects any of the powers, rights, preferences or privileges
of the holders of the Series D Partnership Preferred Units; PROVIDED,
HOWEVER, that the amendment of the provisions of the Agreement, so as
to authorize or create or to increase the authorized amount of any
Junior Partnership Units, or other Units that are not senior in any
respect to the Series D Partnership Preferred Units or any Parity
Partnership Units, shall not be deemed to materially adversely affect
the powers, rights, preferences or privileges of the holders of Series
D Partnership Preferred Units; or
(b) An exchange that affects the Series D Partnership Preferred
Units, a consolidation with or merger of the Partnership into another
entity, or a consolidation with or merger of another entity into the
Partnership, unless in each such case each Series D Partnership
Preferred Unit (i) shall remain outstanding without a material and
adverse change to its terms and rights or (ii) shall be converted into
or exchanged for convertible preferred securities of the surviving
entity having preferences, conversion or other rights, powers,
restrictions, limitations as to distributions, qualifications and
terms or conditions of redemption thereof identical to that of a
Series D Partnership Preferred Unit (except for changes that do not
materially and adversely affect the holders of the Series D
Partnership Preferred Units); or
(c) The authorization, reclassification or creation of, or the
increase in the authorized amount of, any Units of any series, or any
security convertible into Units of any series, ranking prior to the
Series D Partnership Preferred Units in the distribution of assets on
any liquidation, dissolution or winding up of the Partnership or in
the payment of distributions; or
(d) Any increase in the authorized amount of Series D Partnership
Preferred Units or decrease in the authorized amount of Series D
Partnership Preferred Units below the number of Series D Partnership
Preferred Units then issued and outstanding;
PROVIDED, HOWEVER, that no such vote of the holders of Series D Partnership
Preferred Units shall be required if, at or prior to the time when such
amendment, alteration or repeal is to take effect, or when the issuance of
any such prior Units or convertible security is to be made, as the case may
be, provision is made for the redemption or repurchase of all Series D
Partnership Preferred Units at the time outstanding to the extent such
redemption or repurchase is authorized by Section 5 or 6 hereof.
For purposes of the foregoing provisions of this Section 12, each
Series D Partnership Preferred Unit shall have one (1) vote, except that
when any other series of preferred units shall have the right to vote with
the Series D Partnership Preferred Units as a single class on any matter,
then the Series D Partnership Preferred Units and such other series shall
have with respect to such matters one (1) vote per $100.00 of stated
Liquidation Preference . Except as otherwise required by applicable law or
as set forth herein, the Series D Partnership Preferred Units shall not
have any relative, participating, optional or other special voting rights
and powers other than as set forth herein, and the consent of the holders
thereof shall not be required for the taking of any Partnership action.
13. GENERAL
(a) The ownership of Series D Partnership Preferred Units may
(but need not, in the sole and absolute discretion of the General Partner)
be evidenced by one or more certificates. The General Partner shall amend
Exhibit A to the Agreement from time to time to the extent necessary to
reflect accurately the issuance of, and subsequent conversion, redemption,
or any other event having an effect on the ownership of Series D
Partnership Preferred Units.
(b) The rights of the General Partner and the QRS, in their
capacity as holders of the Series D Partnership Preferred Units, are in
addition to and not in limitation of any other rights or authority of the
General Partner or the QRS, respectively, in any other capacity under the
Agreement or applicable law. In addition, nothing contained herein shall be
deemed to limit or otherwise restrict the authority of the General Partner
or the QRS under the Agreement, other than in their capacity as holders of
the Series D Partnership Preferred Units.
14. ECONOMIC EQUIVALENCY.
Notwithstanding any other provision of this EXHIBIT F, the shares
of Series D Preferred Stock and the Series D Partnership Preferred Units
are intended to be substantially equivalent in distributions and other
payments, liquidation rights, redemption rights, repurchase rights,
conversion rights and voting rights. In the event that any provision of
this EXHIBIT F would result in a different distribution or other payments
or rights being made or provided to the holder of a Series D Partnership
Preferred Units than to a holder of a share of Series D Preferred Stock,
this EXHIBIT F shall be deemed automatically amended to conform to the
terms of the Series D Articles Supplementary with respect to such
distribution or other payment.
