Exhibit 10.1(e)
FOURTH AMENDMENT TO THE SECOND
AMENDED
AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP
OF
INNKEEPERS USA LIMITED
PARTNERSHIP
This Fourth Amendment (this
“Amendment”) to the Second Amended and Restated
Agreement of Limited Partnership of Innkeepers USA Limited
Partnership (the “Partnership”) dated November 1, 1996
(the “Partnership Agreement”) is entered into as of
January 20, 2004, by and among Innkeepers Financial Corporation, a
Virginia corporation (the “General Partner”), which is
the sole general partner of the Partnership, and Innkeepers USA
Trust, a Maryland real estate investment trust (the
“Trust”), which is the sole shareholder of the General
Partner. All capitalized terms used herein and not otherwise
defined shall have the meanings assigned to them in the Partnership
Agreement.
WHEREAS, the Trust, on even date
herewith, has issued 5,800,000 of its 8.0% Series C cumulative
preferred shares of beneficial interest, $.01 par value per share,
having a liquidation preference equivalent to $25.00 per share (the
“Series C Preferred Shares”), and has sold such Series
C Preferred Shares in an underwritten public offering (the
“Series C Offering”);
WHEREAS, the Trust desires to
contribute the net proceeds of the sale of the Series C Preferred
Shares through the General Partner to the Partnership in exchange
for the issuance to the General Partner of preferred partnership
interests in the Partnership as set forth herein;
WHEREAS, the General Partner is
authorized to cause the Partnership to issue interests in the
Partnership to the General Partner in exchange for such
contribution of such net proceeds made by the Trust through the
General Partner;
WHEREAS, the Partnership will use a
portion of the net proceeds to redeem from the General Partner
currently outstanding Series A Preferred Partnership Units in the
Partnership (as set forth herein);
WHEREAS, on December 15, 2003, the
holders of common limited partnership units and the Class B Limited
Partnership Units of the Partnership consented to the Series C
Offering and the issuance by the Partnership of corresponding
preferred partnership interests in the Partnership issued in
connection with the Series C Offering.
NOW, THEREFORE, in consideration of
the mutual covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree to amend the Partnership
Agreement as follows:
Section 1. Redemption of Series A
Preferred Partnership Units.
The Partnership hereby redeems the
Series A Preferred Units in the Partnership.
Section 2.
Contribution.
The Trust hereby contributes through
the General Partner to the Partnership the entire net proceeds
received by the Trust from the issuance of the Series C Preferred
Shares. The Trust shall be deemed to have made a Capital
Contribution to the Partnership in an amount equal to the gross
proceeds raised in connection with the issuance of such shares of
Series C Preferred Shares, which is $145,000,000, and the
Partnership shall be deemed simultaneously to have paid for the
costs and expenses relating to the offer, registration and sale of
the Series C Preferred Shares.
Section 3. Issuance of Series C
Preferred Units.
In consideration of the contribution
to the Partnership made by the Trust through the General Partner
pursuant to Section 2 hereof, the Partnership hereby issues to the
General Partner 5,800,000 Series C Preferred Partnership Units (as
defined below).
Section 4.
Definitions.
(a) Article I of the Partnership
Agreement is hereby amended by inserting in the appropriate
alphabetical locations the following definitions of Articles
Supplementary, Class B Preferred Partnership Unit, Class B
Preferred Percentage Interest, Series C Limited Partner, Series C
Preference Value per Unit, Series C Preferred Partnership Unit,
Series C Preferred Percentage Interest, Series C Preferred Return
and Series C Preferred Share, as follows:
“Articles
Supplementary” means the Articles Supplementary to the
Declaration of Trust setting forth the terms of the Series C
Preferred Shares.
“Class B Preferred
Partnership Unit” means a fractional, undivided share of the
ownership interests in the Partnership issued hereunder to the
Class B Limited Partners. The allocation of Class B Preferred
Partnership Units among the Partners shall be as set forth on
Exhibit A , as it may be amended from time to time. Upon any
redemption, issuance or transfer of Class B Preferred Partnership
Units, the General Partner shall prepare a revised schedule in the
form of Exhibit A reflecting the names of the then-current
Partners, their Common, Class B Preferred, or Series C Preferred
Percentage Interests, and the number of Common Partnership Units or
Preferred Partnership Units owned by each Partner.
“Class B Preferred
Percentage Interest” means the percentage ownership interest in the
Class B Preferred Partnership Units of each Partner that holds
Class B Preferred Partnership Units, as determined by dividing the
number of Class B Preferred Partnership Units held by such Partner
by the total number of Class B Preferred Partnership Units then
outstanding.
“Series C Limited
Partner” means any
Person named as a Series C Limited Partner on Exhibit A ,
and any Person who becomes a Substitute or Additional Series C
Limited Partner, in such Person’s capacity as a Series C
Limited Partner in the Partnership.
“Series C Preference Value
per Unit” means,
with respect to each outstanding Series C Preferred Partnership
Unit, the liquidation preference value of $25.00.
“Series C Preferred
Partnership Unit” means a share of the ownership interests in the
Partnership designated as Series C Preferred Partnership Units and
issued to the General Partner in exchange for the net proceeds of
the issuance by the Trust of its Series C Preferred Shares, which
Series C Preferred Partnership Units shall have the designations,
preferences, privileges, limitations and
relative rights set forth in Section 4.02(f)
hereof. The allocation of Series C Preferred Partnership Units
shall be as set forth on Exhibit A , as may be amended from
time to time. Upon any redemption, issuance or transfer of Series C
Preferred Partnership Units, the General Partner shall prepare a
revised schedule in the form of Exhibit A reflecting the
names of the then-current Partners, their Common, Class B
Preferred, or Series C Preferred Percentage Interests, and the
number of Common or Preferred Partnership Units owned by each
Partner.
“Series C Preferred
Percentage Interest” means the percentage ownership interest in the
Series C Preferred Partnership Units of each Partner that holds
Series C Preferred Partnership Units, as determined by dividing the
number of Series C Preferred Partnership Units held by such Partner
by the total number of Series C Preferred Partnership Units then
outstanding.
“Series C Preferred
Return” means, on
each Partnership Record Date following the date of this Agreement,
an annualized amount equal to $2.00 per Series C Preferred
Partnership Unit. The Series C Preferred Return shall be cumulative
and shall be prorated for any partial calendar year.
“Series C Preferred
Share” means one
8.0% Series C Cumulative Preferred Share of beneficial interest of
the Company.
(b) Each of the definitions Class B
Preference Value per Unit, Common Partnership Units, Limited
Partner and Preferred Partnership Unit set forth in Article I of
the Partnership Agreement is hereby deleted in its entirety and the
following new definition is inserted in its place:
“Class B Preference Value
per Unit” means,
with respect to each Class B Preferred Partnership Unit held by
each Class B Limited Partner, the liquidation preference value of
$11.00 per Class B Preferred Partnership Unit.
“Common Partnership
Unit” means a
fractional, undivided share of the ownership interests in the
Partnership issued hereunder to the General Partner and the Class A
Limited Partners. The allocation of Common Partnership Units among
the General Partner and the Class A Limited Partners shall be as
set forth on Exhibit A , as may be amended from time to
time. Upon any redemption, issuance or transfer of Common
Partnership Units, the General Partner shall prepare a revised
schedule in the form of Exhibit A reflecting the names of
the then-current Partners, their Common, Class B Preferred, or
Series C Preferred Percentage Interests, and the number of Common
Partnership Units or Preferred Partnership Units owned by each
Partner.
“Limited
Partner” means any
Person named as a Class A Limited Partner, a Class B Limited
Partner or Series C Limited Partner on Exhibit A , and any
Person who becomes a Substitute or Additional Limited Partner, in
such Person’s capacity as a Limited Partner in the
Partnership.
“Preferred Partnership
Unit” means a Class
B Preferred Partnership Unit, a Series C Preferred Partnership
Unit, or any other unit of preferred partnership interest in the
Partnership.
Section 5. Issuance of Superior
and Pari Passu Partnership Units .
Article IV, Section 4.02(c) of the
Partnership Agreement is hereby deleted in its entirety and the
following new Section 4.02(c) is inserted in its place:
“(c) Issuance of Superior
and Pari Passu Partnership Units . The Partnership may issue at
any time Partnership Units that have income, distribution, and
liquidation rights subordinate to the income, distribution, and
liquidation rights of the Class B Preferred Partnership Units.
However, as long as the Class B Preferred Partnership Units remain
outstanding (the “Limitation
Period”), the Partnership may
issue Partnership Units with income, distribution, or liquidation
rights that are superior to (“Superior Partnership
Units”) or the same as (“Pari Passu Partnership
Units”) the income, distribution, or liquidation rights of
the Class B Preferred Partnership Units if, and only if,
immediately after such issuance (i) the value of all of the
Superior Partnership Units that would be outstanding immediately
after such issuance would not exceed an amount equal to 18.7% of
the aggregate value of the total outstanding partnership interests
in the Partnership immediately after such issuance (“Total
Equity”), and (ii) the value of all of the Pari Passu
Partnership Units and the Superior Partnership Units, taken
together, that would be outstanding immediately after such issuance
would not exceed an amount equal to (A) 22% of the Total Equity,
plus (B) the value of the Class B Preferred Partnership Units
issued to the partnerships controlled by Jack P. DeBoer that owned
the Class B Hotels, minus (C) the value of such remaining
outstanding Class B Preferred Partnership Units. For purposes of
this Section 4.02(c), Total Equity shall include (i) all Preferred
Partnership Units, (ii) all Common Partnership Units held by the
General Partner, the Company and the Class A Limited Partners and
(iii) all Superior Partnership Units and Pari Passu Partnership
Units held by (or to be issued to) the General Partner, the Company
or others. For purposes of this Section 4.02(c), (A) the deemed
value of any Preferred Partnership Units, Superior Partnership
Units and Pari Passu Partnership Units outstanding and to be
outstanding shall be the aggregate liquidation preference value of
such Partnership Units, and (B) the deemed value of any Common
Partnership Units shall be the number of such Partnership Units
outstanding multiplied by the reported closing share price of one
Common Share on the business day prior to the issuance of
Partnership Units on the New York Stock Exchange or the exchange on
which the Common Shares are then primarily traded. The restrictions
in this paragraph shall terminate when the Class B Preferred
Partnership Units are no longer outstanding. During the Limitation
Period, the Partnership may not issue Superior Partnership Units in
exchange for non-cash property. None of the limitations in this
paragraph shall prevent the Partnership from issuing Class B
Preferred Partnership Units in connection with the acquisition of
the seven Residence Inn hotels owned by partnerships controlled by
Jack P. DeBoer.
Section 6. Creation of Series C
Preferred Partnership Units .
Article IV, Section 4.02 of the
Partnership Agreement is hereby amended by adding Section 4.02(f)
as follows:
“(f) 8.0% Series C
Preferred Partnership Units .
(1) Designation and Number
. A series of Partnership Units, designated the “8.0%
Series C Preferred Partnership Units”, is hereby established.
The number of Series C Preferred Partnership Units shall be as set
forth on Exhibit A hereto.
(2) Rank . The Series
C Preferred Partnership Units will, with respect to distribution
rights and rights upon liquidation, dissolution or winding up of
the Partnership, rank (i) prior or senior to all classes or series
of Common Partnership Units of the Partnership, and to all
Partnership Units ranking junior to the Series C Preferred
Partnership Units with respect to distribution rights or rights
upon liquidation, dissolution or winding up of the Partnership;
(ii) on a parity with the Class B Preferred Partnership Units and
all Partnership Units issued by the Partnership the terms of which
specifically provide that
such Partnership Units rank on a
parity with the Series C Preferred Partnership Units with respect
to distribution rights or rights upon liquidation, dissolution or
winding up of the Partnership; and (iii) junior to all existing and
future indebtedness of the Partnership. The term “Partnership
Units” does not include convertible debt securities, which
will rank senior to the Series C Preferred Partnership Units prior
to conversion.
(3)
Distributions.
(a) Holders of the Series C
Preferred Partnership Units are entitled to receive cumulative cash
distributions in accordance with Section 5.02(a)(i)(B) hereof.
Notwithstanding the provisions of Section 5.02(a) hereof,
distributions on the Series C Preferred Partnership Units shall be
cumulative from the date of original issue and shall be payable
quarterly in arrears on or before the last Tuesday of January,
April, July and October of each year, or, if not a Business Day (as
defined below), the next succeeding business day (each, a
“Distribution Payment Date”) commencing April 27, 2004.
“Business Day” shall mean any day other than a
Saturday, Sunday or other day on which commercial banks in the City
of New York are authorized or required to close. The first
distribution will be payable for the period beginning January 20,
2004. Any distribution payable on the Series C Preferred
Partnership Units for any partial distribution period will be
computed on the basis of a 360-day year consisting of twelve 30 day
months. Distributions will be payable to holders of record as they
appear in the ownership records of the Partnership at the close of
business on the Partnership Record Date.
(b) The amount of any distributions
accrued on any Series C Preferred Partnership Units at any
Distribution Payment Date shall be the amount of any unpaid
distributions accumulated thereon, to and including such
Distribution Payment Date, whether or not earned or declared, and
the amount of distributions accrued on any Series C Preferred
Partnership Units at any date other than a Distribution Payment
Date shall be equal to the sum of the amount of any unpaid
distributions accumulated thereon, to and including the last
preceding Distribution Payment Date, whether or not earned or
declared, plus an amount calculated on the basis of the Series C
Preferred Return for the period after such last preceding
Distribution Payment Date to and including the date as of which the
calculation is made based on a 360-day year of twelve 30-day
months.
(c) Except as provided in subsection
(a) hereof, the holder of the Series C Preferred Partnership Units
will not be entitled to any distributions in excess of full
cumulative distributions as described above and shall not be
entitled to participate in the earnings or assets of the
Partnership, and no interest, or sum of money in lieu of interest,
shall be payable in respect of any distribution payment or payments
on the Series C Preferred Partnership Units which may be in
arrears.
(d) No distributions on Series C
Preferred Partnership Units shall be de
