Exhibit 10.1
Sixth Amendment to the
Amended and Restated
Agreement
of Limited Partnership
of
LaSalle Hotel Operating Partnership,
L.P.
This Amendment is made as of
, 2006 by and among LaSalle Hotel
Properties, a Maryland real estate investment trust, as the general
partner (the “Trust” or the “General
Partner”) of LaSalle Hotel Operating Partnership, L.P., a
Delaware limited partnership (the “Partnership”), and
as attorney-in-fact for the Persons named on Exhibit A to the
Amended and Restated Agreement of Limited Partnership of LaSalle
Hotel Operating Partnership, L.P., dated as of April 29, 1998,
as amended by the First Amendment to the Amended and Restated
Agreement of Limited Partnership, dated as of March 6, 2002,
the Second Amendment to the Amended and Restated Agreement of
Limited Partnership, dated as of September 30, 2003, the Third
Amendment to the Amended and Restated Agreement of Limited
Partnership, dated as of August 31, 2005, the Fourth Amendment
to the Amended and Restated Agreement of Limited Partnership, dated
as of August 22, 2005, and the Fifth Amendment to the Amended
and Restated Agreement of Limited Partnership, dated as of
February 8, 2006 (collectively, as amended, the
“Partnership Agreement”), and JR Wall Street, LLC, a
Delaware limited liability company (“JRW”) for the
purpose of amending the Partnership Agreement. Capitalized terms
used herein and not defined shall have the meanings given to them
in the Partnership Agreement.
WHEREAS, Section 4.2A. of the
Partnership Agreement authorizes the General Partner to cause the
Partnership to issue additional Partnership Units in one or more
classes or series, with such designations, preferences and
relative, participating, optional or other special rights, powers
and duties as shall be determined, subject to applicable Delaware
law, by the General Partner; and
WHEREAS, pursuant to the authority
granted to the General Partner pursuant to Sections 4.2A. and
14.1B. of the Partnership Agreement, the General Partner desires to
amend the Partnership Agreement (i) to establish a new class
of Partnership Units, the Series F Preferred Units (as hereinafter
defined), and to set forth the designations, rights, powers,
preferences and duties of such Series F Preferred Units,
(ii) to issue the Series F Preferred Units to JRW and admit
JRW as an Additional Limited Partner, and (iii) to make
certain other changes to the Partnership Agreement.
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the
General Partner hereby amends the Partnership Agreement as
follows:
1. Article 1 of the Partnership
Agreement is hereby amended by adding the following
definitions:
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“Applicable Floating
Rate” means an
interest rate per annum equal to (i) 150 basis points plus
(ii) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) for deposits in United States dollars for a
30-day period that appears on the Telerate Page 3750 (or any
successor page as determined by the General Partner) as of 11:00
a.m. (London time) on the date as of which the Applicable Floating
Rate must be determined, provided that, if such rate is not
available for any reason, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%), determined by the General
Partner in good faith, at which deposits in United States dollars
are offered by leading banks to other leading banks and accepted by
such other leading banks in the London interbank eurodollar market
at approximately 12:00 Noon (London time) on the date as of
which the Applicable Floating Rate must be determined. The
Applicable Floating Rate shall be reset prospectively each calendar
month, on the first Business Day in such calendar month that is not
a day on which banking institutions are generally authorized or
obligated by law or executive order to close in the City of London,
England. The initial Applicable Floating Rate, effective from the
date the initial Series F Preferred Units are first issued until
reset on
, 2006 for the ensuing month, shall be
percent (
%).
“Series F Cash Amount”
means an amount of cash equal to TWENTY-FIVE DOLLARS ($25), plus
accrued and unpaid distributions.
“Series F Shares Amount”
means a number of Shares obtained by dividing (i) the
aggregate liquidation preference of the Series F Preferred Units,
plus accrued and unpaid dividends thereon, offered for redemption
by a Series F Redeeming Partner by (ii) (x) if the
outstanding Shares are Publicly Traded, the average of the daily
market price for the ten consecutive trading days immediately
preceding the Valuation Date (the market price for each such
trading day shall be the closing price, regular way, on such day,
or if no such sale takes place on such day, the average of the
closing bid and asked prices on such day), or (y) if
the outstanding Shares are not Publicly Traded, a value as of the
Valuation Date determined by the General Partner acting in good
faith.
“Series F Preferred
Units” means the series of Partnership Units representing
units of Limited Partnership Interest designated as the Floating
Rate Series F Cumulative Redeemable Preferred Units (Liquidation
Preference $25 per unit), with the preferences, liquidation and
other rights, voting powers, restrictions, limitations as to
distributions, qualifications and terms and conditions of
redemption of units as described herein.
2. In accordance with
Section 4.2A of the Partnership Agreement, set forth below are
the terms and conditions of the Series F Preferred
Units.
A. Designation and Number. A
series of Partnership Units, designated as the Floating Rate Series
F Cumulative Redeemable Preferred Units, is hereby established. The
maximum number of Series F Preferred Units shall be
.
B. Rank. The Series F
Preferred Units will, with respect to distribution rights and
rights upon liquidation, dissolution or winding up of the
Partnership, rank (i) senior to the Class A Units, Class
B Units and to all Partnership Interests the terms of which
specifically provide that such Partnership Interests shall rank
junior to such Series F Preferred Units; (ii) on a parity with
all Partnership Interests issued by the Partnership, including
the
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10.25% Series A Cumulative Redeemable Preferred
Units, 8.375% Series B Cumulative Redeemable Preferred Units, 7.25%
Series C Cumulative Redeemable Preferred Units, 7.5% Series D
Cumulative Redeemable Preferred Units and the 8% Series E
Cumulative Redeemable Preferred Units, other than those Partnership
Interests referred to in clauses (i) and (iii); and
(iii) junior to all Partnership Interests issued by the
Partnership the terms of which specifically provide that such
Partnership Interests shall rank senior to the Series F Preferred
Units.
C. Distributions .
(i) Pursuant to Section 5.1 of
the Partnership Agreement, holders of Series F 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 Applicable
Floating Rate per annum (calculated based on the number of days in
the applicable calendar month) of the TWENTY-FIVE DOLLARS ($25) per
share liquidation preference of the Series F Preferred Units.
Distributions on the Series F Preferred Units shall accumulate on a
daily basis and be cumulative from (but excluding) the original
date of issuance and be payable quarterly in arrears on the
fifteenth day of January, April, July and October of each year,
beginning on
, 2006 (each such day being hereinafter called a “Series F
Preferred Unit Distribution Payment Date;” provided that if
any Series F Preferred Unit Distribution Payment Date is not a
Business Day, then the distribution which would otherwise have been
payable on such Series F Preferred Unit Distribution Payment Date
shall be paid on the next succeeding Business Day with the same
force and effect as if paid on such Series F Preferred Unit
Distribution Payment Date, and no interest or additional
distributions or other sums shall accrue on the amount so payable
from such Series F Preferred Unit Distribution Payment Date to such
next succeeding Business Day. Any distribution (including the
initial distribution) payable on the Series F Preferred Units for
any partial distribution period shall be prorated and computed on
the basis of a 360-day year consisting of twelve 30-day months.
Distributions shall be payable to holders of record as they appear
in the records of the Partnership at the close of business on the
applicable record date, which shall be the first day of the
calendar month in which the applicable Series F Preferred Unit
Distribution Payment Date falls or such other date designated by
the General Partner for the payment of distributions that is not
more than 90 nor less than 10 days prior to such Series F Preferred
Unit Distribution Payment Date (each, a “Series F Preferred
Unit Distribution Record Date”).
(ii) No distribution on the Series F
Preferred Units shall be authorized by the General Partner or paid
or set apart for payment by the Partnership at such time as the
terms and provisions of any agreement of the Partnership, including
any agreement relating to its indebtedness, prohibits such
authorization, payment or setting apart for payment or provides
that such authorization, payment or setting apart for payment would
constitute a breach thereof, or a default thereunder, or if such
authorization or payment shall be restricted or prohibited by
law.
(iii) Notwithstanding anything to
the contrary contained herein, distributions with respect to the
Series F Preferred Units shall accumulate whether or not the
restrictions referred to in Subsection 2.C.(ii) exist, whether or
not the Partnership has earnings, whether or not there is
sufficient Available Cash for the payment thereof and whether or
not such
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distributions are authorized. Accumulated but
unpaid distributions on the Series F Preferred Units will
accumulate as of the Series F Preferred Unit Distribution Payment
Date on which they first become payable or on the date of
redemption as the case may be. Accumulated and unpaid distributions
will not bear interest.
(iv) If any Series F Preferred Units
are outstanding, no distributions of cash or other property will be
authorized or paid or set apart for payment on any Partnership
Interests of the Partnership of any other class or series ranking,
as to distributions, on a parity with or junior to the Series F
Preferred Units unless full cumulative distributions have been or
contemporaneously are authorized and paid or authorized and a sum
sufficient for the payment thereof set apart for such payment on
the Series F Preferred Units for all past distribution periods and
the then current distribution period. When distributions are not
paid in full (or a sum sufficient for such full payment is not so
set apart) upon the Series F Preferred Units and all other
Partnership Interests ranking on a parity, as to distributions,
with the Series F Preferred Units, all distributions authorized,
paid or set apart for payment upon the Series F Preferred Units and
all other units ranking on a parity, as to distributions, with the
Series F Preferred Units shall be authorized and paid pro rata or
authorized and set apart for payment pro rata so that the amount of
distributions authorized per Series F Preferred Unit and each such
other Partnership Interest shall in all cases bear to each other
the same ratio that accumulated distributions per Series F
Preferred Unit and other Partnership Interest (which shall not
include any accumulation in respect of unpaid distributions for
prior distribution periods if such Partnership Interests do not
have a cumulative distribution) bear to each other. No interest, or
sum of money in lieu of interest, shall be payable in respect of
any distribution payment or payments on Series F Preferred Units
which may be in arrears.
(v) Except as provided in subsection
2.C.(iv), unless full cumulative distributions on the Series F
Preferred Units have been or contemporaneously are authorized and
paid or authorized and a sum sufficient for the payment thereof is
set apart for payment for all past distribution periods and the
then current distribution period, no distributions (other than in
Partnership Interests ranking junior to the Series F Preferred
Units as to distributions and upon liquidation) shall be authorized
or paid or set aside for payment nor shall any other distribution
be authorized or made upon the Class A Units, Class B Units,
or any other Partnership Interests ranking junior to or on a parity
with the Series F Preferred Units as to distributions or upon
liquidation, nor shall any Class A Units, Class B Units, or
any other Partnership Interests ranking junior to or on a parity
with the Series F Preferred Units as to distributions or upon
liquidation be redeemed, purchased or otherwise acquired directly
or indirectly for any consideration (or any monies be paid to or
made available for a sinking fund for the redemption of any such
Partnership Interests) by the Partnership (except (a) by
conversion into or exchange for other Partnership Interests ranking
junior to the Series F Preferred Units as to distributions and upon
liquidation, dissolution or winding up of the affairs of the
Partnership, or (b) by redemption, purchase or acquisition of
Partnership Interests under incentive, benefit or unit purchase
plans of the Partnership for Employees of the General Partner, the
Partnership, Subsidiaries of the Partnership or any Affiliate of
any of them, or (c) by redemption of Partnership Units
corresponding to any Series C Preferred Shares or shares ranking on
parity or junior to the Series C Preferred Shares as to
distributions and upon liquidation to be purchased by the General
Partner pursuant to Article VII of the Declaration of Trust to
preserve the General Partner’s status as a real estate
investment trust, provided that such redemption shall be upon the
same terms as the corresponding purchase pursuant to
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Article VII of the Declaration of Trust, or
(d) by redemption of Series C Preferred Units for Series C
Preferred Shares having an aggregate liquidation preference equal
to such Series C Preferred Units or redemption of any other
Partnership Interests ranking on a parity with the Series F
Preferred Units as to distributions or upon liquidation for a
number of preferred shares of beneficial interest (or other
comparable equity interest) in the General Partner having an
aggregate liquidation preference equal to the aggregate liquidation
preference of such parity Partnership Interests and other terms
substantially equivalent to the economic terms of such parity
Partnership Interests).
(vi) Holders of Series F Preferred
Units shall not be entitled to any distribution, whether payable in
cash, property or Partnership Interests, in excess of full
cumulative distributions on the Series F Preferred Units as
described above. Any distribution payment made on the Series F
Preferred Units shall first be credited against the earliest
accumulated but unpaid distribution due with respect to such units
which remains payable.
D. Allocation of Net Income and
Net Losses . Notwithstanding anything contained in the
Partnership Agreement to the contrary, so long as any Series F
Preferred Units are outstanding, for each fiscal year, prior to any
allocations of Net Income under the Partnership Agreement, the
holders of Series F Preferred Units shall be allocated an amount of
Net Income equal to the excess of: (i) the sum of (x) the
aggregate amount of cash (or the fair market value of property)
actually distributed to the holders of Series F Preferred Units
during such fiscal year and all prior fiscal years other than
distributions constituting a return of any prior capital
contributions to a holder under paragraphs E and F hereof, plus
(y) the amount of accrued but unpaid distributions owed to
such holders of Series F Preferred Units as of the end of such
fiscal year, over (ii) the aggregate of all prior
allocations of Net Income to such holder under this paragraph D. In
the event there are insufficient Net Income to allocate the full
amount of Net Income required to be allocated to the holders of
Series F Preferred Units under this paragrap
