Exhibit 10.2
NINTH AMENDMENT TO
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
COLONIAL REALTY LIMITED PARTNERSHIP
THIS NINTH AMENDMENT TO THIRD AMENDED
AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF COLONIAL REALTY
LIMITED PARTNERSHIP (this “Ninth Amendment” to the
“Partnership Agreement”), dated as of April 1,
2005, is entered into by Colonial Properties Trust, as general
partner (the “General Partner”) of Colonial Realty
Limited Partnership (the “Partnership”), for itself and
on behalf of the limited partners of the Partnership (the
“Limited Partners”).
WHEREAS, Section 4.2.A 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 by the General Partner in its
sole and absolute discretion, subject to the condition that no such
additional Partnership Units shall be issued to the General Partner
unless (i) the additional Partnership Units are issued in
connection with an issuance of shares by the General Partner, which
shares have designations, preferences and other rights,
substantially similar to the designations, preferences and other
rights of the additional Partnership Units issued to the General
Partner and (ii) the General Partner makes a capital
contribution of an amount equal to the net proceeds raised in
connection with the issuance of such shares;
WHEREAS, General Partner has entered
into an Agreement and Plan of Merger, dated as of October 25, 2004
(as amended, the “Merger Agreement”), among the General
Partner, CLNL Acquisition Sub LLC and Cornerstone Realty Income
Trust, Inc., pursuant to which the General Partner has issued REIT
Shares and 7.62% Series E Cumulative Redeemable Preferred
Shares of Beneficial Interest, par value $0.01 per share (the
“Series E Preferred Shares”), of the General
Partner;
WHEREAS, General Partner is
concurrently making a capital contribution to the Partnership of
the assets acquired through the Merger Agreement in exchange for a
number of Class A Units and Series E Preferred Units (as
defined below) equal to the number of REIT Shares and Series E
Preferred Shares issued pursuant to the Merger Agreement;
WHEREAS, in connection with the
issuance of the Series E Preferred Shares and pursuant to the
authority granted to the General Partner pursuant to
Section 4.2.A of the Partnership Agreement, the General
Partner desires to amend the Partnership Agreement to establish a
new class of Units, to be entitled Series E Cumulative
Redeemable Preferred Units (the “Series E Preferred
Units”), and to set forth the designations, rights, powers,
preferences and duties of such Series E Preferred Units, which
are substantially the same as those of the Series E Preferred
Shares; and
WHEREAS, the General Partner desires
to further amend the Partnership Agreement to provide for the
issuance of Class A Units and Series E Preferred Units in
connection with such capital contribution to the Partnership of the
assets acquired through the Merger Agreement, which capital
contribution is being made
concurrently herewith pursuant to a Contribution Agreement, dated
as of the date hereof, between the General Partner and the
Partnership (the “Contribution 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.
Series E Preferred Units . Section 4.2 of the
Partnership Agreement is hereby amended by adding after
Section 4.2.H the following section:
I. Series E Preferred
Units . Under the authority granted to it by Section 4.2.A
hereof, the General Partner hereby establishes and designates as
Preferred Units an additional class of Partnership Units entitled
“Series E Cumulative Redeemable Preferred Units”
(the “Series E Preferred Units”). Series E
Preferred Units shall have the designations, preferences, rights,
powers and duties as set forth in Exhibit L hereto.
2.
Exhibits to Partnership Agreement . The Partnership
Agreement is hereby amended by attaching thereto as
Exhibit L the Exhibit L attached
hereto.
3.
Issuance of Class A Units and Series E Preferred
Units . Exhibit A to the Partnership Agreement is
hereby amended to reflect the issuance to the General Partner
pursuant to the transactions contemplated by the Contribution
Agreement of (a) a number of Class A Units equal to the
number of REIT Shares issued pursuant to the Merger Agreement and
(b) a number of Series E Preferred Units equal to the
number of Series E Preferred Shares issued pursuant to the
Merger Agreement.
4.
Certain Capitalized Terms . All capitalized terms used in
this Ninth Amendment and not otherwise defined shall have the
meanings assigned in the Partnership Agreement. Except as modified
herein, all terms and conditions of the Partnership Agreement shall
remain in full force and effect, which terms and conditions the
General Partner hereby ratifies and affirms.
[Signature appears on
following page]
2
IN WITNESS WHEREOF, the undersigned
has executed this Ninth Amendment as of the date first set forth
above.
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COLONIAL PROPERTIES TRUST,
as General Partner of
Colonial Realty Limited Partnership
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By: |
/s/ Thomas H. Lowder |
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Name: |
Thomas H. Lowder |
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Title: |
President and CEO |
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EXHIBIT
L
DESIGNATION OF THE
PREFERENCES, RIGHTS, VOTING POWERS,
RESTRICTIONS, QUALIFICATIONS AND LIMITATIONS
OF THE
SERIES E PREFERRED UNITS
The Series E Preferred Units
shall have the following designations, preferences, rights, powers
and duties:
(1)
Certain Defined Terms . The following capitalized terms used
in this Exhibit L shall have the respective meanings
set forth below:
“Distribution Period”
means quarterly periods commencing on the first day of January,
April, July and October of each year and ending on and including
the next succeeding Quarterly Distribution Date (as defined below)
(other than the initial Distribution Period, which shall commence
on February 4, 2005, and other than the Distribution Period
during which any Series E Preferred Units shall be redeemed
pursuant to Section 4, which shall end on and include the date
of such redemption).
“Fully Junior Units”
shall mean the Common Units, the Series 1998 Preferred Units
and any other class or series of Partnership Units now or hereafter
issued and outstanding over which the Series E Preferred Units
have a preference or priority in both (i) the payment of
distributions and (ii) the distribution of assets on any
liquidation, dissolution or winding up of the Partnership.
“Junior Units” shall mean
the Common Units, the Series 1998 Preferred Units and any
other class or series of Partnership Units now or hereafter issued
and outstanding over which the Series E Preferred Units have a
preference or priority in the payment of distributions or in the
distribution of assets on any liquidation, dissolution or winding
up of the Partnership.
“Parity Units” has the
meaning ascribed thereto in Section 6(B).
(2)
Distributions .
(A) The
General Partner, in its capacity as the holder of the then
outstanding Series E Preferred Units, shall be entitled to
receive out of funds legally available therefor, distributions
payable on the last day (or, if not a Business Day, the next
succeeding Business Day) of each March, June, September and
December beginning on June 30, 2005 (each such day being
hereafter called a “Quarterly Distribution Date”), in
an amount per Se
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