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EXHIBIT 10.2
FIFTH AMENDMENT TO
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
COLONIAL REALTY LIMITED PARTNERSHIP
THIS FIFTH AMENDMENT TO THIRD AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF COLONIAL REALTY
LIMITED PARTNERSHIP (this "Fifth
Amendment" to the "Partnership Agreement"),
dated as of June __, 2001, 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 Underwriting
Agreement dated as of June 4, 2001, and a
Terms Agreement dated as of June 4,
2001, pursuant to which Colonial Properties
has agreed to issue up to 2,300,000
9.25% Series C Cumulative Redeemable
Preferred Shares of Beneficial Interest,
par value $0.01 per share (the "Series C
Preferred Shares"), of Colonial
Properties;
WHEREAS, General Partner will make will make a capital
contribution to the Partnership of the
proceeds from the issuance of the Series
C Preferred Shares in exchange for up to
2,300,000 Series C Preferred Units (as
defined below); and
WHEREAS, in connection with the issuance of the Series C
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
(i) to establish a new class of
Units, to be entitled Series C Cumulative
Redeemable Preferred Units (the
"Series C Preferred Units"), and to set
forth the designations, rights, powers,
preferences and duties of such Series C
Preferred Units, which are substantially
the same as those of the Series C Preferred
Shares, and (ii) to make certain
other changes to the Partnership
Agreement.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the
receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby
amends the Partnership Agreement, as
follows:
1.
Section 4.2 of the Partnership Agreement is hereby
amended by adding after Section 4.2.F the
following section:
G.
Series C 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 C
Cumulative Redeemable Preferred Units" (the "Series C
Preferred Units"). Series C Preferred Units shall have the
designations, preferences, rights, powers and duties as set
forth in Exhibit J hereto.
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2.
Exhibits to Partnership Agreement.
The Partnership Agreement is hereby amended by attaching
thereto as Exhibit J the Exhibit J attached
hereto.
3.
Certain Capitalized Terms. All capitalized terms used
in this Fifth 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.
IN WITNESS WHEREOF, the undersigned has executed this Fifth
Amendment as of the date first set forth
above.
COLONIAL PROPERTIES TRUST,
as General Partner
of Colonial Realty Limited Partnership
And on behalf of existing Limited Partners
By: /s/ Howard B.
Nelson, Jr.
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Name: Howard B. Nelson, Jr.
Title: Chief Financial Officer and Secretary
2
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EXHIBIT J
DESIGNATION OF THE PREFERENCES, RIGHTS, VOTING POWERS,
RESTRICTIONS, QUALIFICATIONS AND LIMITATIONS
OF THE
SERIES C PREFERRED UNITS
The Series C Preferred Units shall have the following
designations,
preferences, rights, powers and duties:
(1) Certain
Defined Terms. The following capitalized
terms used in this Exhibit I shall have the respective meanings
set
forth below:
"Distribution Period" means quarterly periods commencing on or
about the first day of June, April, July and October of each year
and
ending on and including the day preceding the first day of the
next
succeeding Distribution Period (other than the initial
Distribution
Period, which shall commence on June 19, 2001 and end on September
30,
2001, and other than the Distribution Period during which any
Series C
Preferred Units shall be redeemed pursuant to Section 4, which
shall
end on and include the date of such redemption).
"Fully Junior Units" shall mean the Common Units and any other
class or series of Partnership Units now or hereafter issued
and
outstanding over which the Series C 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 and any other class
or series of Partnership Units now or hereafter issued and
outstanding
over which the Series C 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 C Preferred Units, shall be entitled
to
receive out of funds legally available therefor, distributions
payable
in cash at the rate of $2.1325 per Series C Preferred Unit per
year,
payable in equal amounts of $.533125 per unit quarterly in cash on
the
last day of each March, June, September, and December or, if not
a
Business Day, the next succeeding Business Day beginning on
September
30, 2001 (each such day being hereafter called a "Quarterly
Distribution Date"). Quarterly distributions on each Series C
Preferred
Unit shall begin to accrue and shall be fully cumulative from June
19,
2001, whether or not (i) quarterly distributions on such Series
C
Preferred Unit are earned or declared or (ii) on any Quarterly
Distribution Date there shall be funds legally available for
the
payment of quarterly distributions. Quarterly distributions paid on
the
Series C Preferred Units in an amount less than the total amount
of
such quarterly distributions at the time accrued and payable on
such
Partnership Units shall be allocated pro rata on a per unit basis
among
all such Series C Preferred Units. Accrued and unpaid distributions
for
any past Distribution Periods may be declared and paid at any time
and
for such interim periods, without reference to any regular
Quarterly
Distribution Date, to the General Partner, on such date as may be
fixed
by the General Partner for payment of the corresponding dividend on
the
Series C Preferred Shares. Any distribution made on the Series
C
Preferred Units shall first be credited against the earliest
accrued
but unpaid distribution due with respect to Series C Preferred
Units
which remains payable.
(B) The amount
of any quarterly distributions accrued on
any Series C Preferred Units at any Quarterly Distribution Date
shall
be the amount of any unpaid quarterl
