Exhibit 10.1
PS BUSINESS PARKS, L.P.
AMENDMENT TO AGREEMENT OF LIMITED
PARTNERSHIP RELATING TO
7.20% SERIES M CUMULATIVE REDEEMABLE
PREFERRED UNITS
This Amendment to
the Agreement of Limited Partnership of PS Business Parks, L.P., a
California limited partnership (the
“Partnership” ), dated as of May 2, 2005
(this “Amendment” ), amends the Agreement of
Limited Partnership of the Partnership, dated as of March 17,
1998, as amended, by and among PS Business Parks, Inc. (the
“General Partner” ) and each of the limited
partners described on Exhibit A to that partnership agreement
(the “Partnership Agreement” ). Section
references are (unless otherwise specified) references to sections
in this Amendment.
WHEREAS, the
General Partner agreed to issue 3,000,000 Depositary Shares each
representing 1/1000th of a share of the General Partner’s
preferred stock designated as the “7.20% Cumulative Preferred
Stock, Series M” (the “Depositary Shares" )
for a price of $25.00 per Depositary Share;
WHEREAS,
Section 4.1(b)(2) of the Partnership Agreement requires the
General Partner to contribute to the Partnership the funds raised
through the issuance of additional shares of the General Partner in
return for additional Partnership Units, and provides that the
General Partner’s capital contribution shall be deemed to
equal the amount of the gross proceeds of that share issuance
(i.e., the net proceeds actually contributed, plus any
underwriter’s discount or other expenses incurred, with any
such discount or expense deemed to have been incurred on behalf of
the Partnership);
WHEREAS,
Section 4.2(a) of the Partnership Agreement provides generally
for the creation and issuance of Partnership Units with such
designations, preferences and relative, participating, optional or
other special rights, powers and duties, including rights, powers
and duties senior to other Partnership Interests, all as shall be
determined by the General Partner, without the consent of the
Limited Partners, and Section 4.2(b) of the Partnership
Agreement specifically contemplates the issuance of Units to the
General Partner having designations, preferences and other rights,
all such that the economic interests are substantially similar to
the designations, preferences and other rights of shares issued by
the General Partner, such as the Depositary Shares;
WHEREAS, the
General Partner desires to cause the Partnership to issue
additional Units of a new class and series, with the designations,
preferences and relative, participating, optional or other special
rights, powers and duties set forth herein; and
WHEREAS, the
General Partner desires by this Amendment to so amend the
Partnership Agreement as of the date first set forth above to
provide for the designation and issuance of such new class and
series of Units.
NOW, THEREFORE,
the Partnership Agreement is hereby amended by establishing and
fixing the rights, limitations and preferences of a new class and
series of Units as follows:
Definitions
. Capitalized terms not otherwise defined herein shall have
their respective meanings set forth in the Partnership Agreement.
Capitalized terms that are used in this Amendment shall have the
meanings set forth below:
(a)
“Liquidation Preference” means, with respect to
the Series M Preferred Units (as defined below), $25.00 per
Series M Preferred Unit, plus the amount of any accumulated
and unpaid Priority Return (as defined below) with respect to such
Series M Preferred Unit, whether or not declared, minus any
distributions in excess of the Priority Return that has accrued
with respect to such Series M Preferred Units, to the date of
payment.
(b)
“Parity Preferred Units” means any class or
series of Partnership Interests (as such term is defined in the
Partnership Agreement) of the Partnership now or hereafter
authorized, issued or outstanding and
expressly designated by the
Partnership to rank on a parity with the Series M Preferred
Units with respect to distributions and rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the
Partnership, including the 9 1/2% Series D Cumulative
Redeemable Preferred Units (the “Series D Preferred
Units” ), the 9 1/4% Series E Cumulative Redeemable
Preferred Units (the “Series E Preferred
Units” ), the 8 3/4% Series F Cumulative Redeemable
Preferred Units (the “Series F Preferred
Units” ), the 7.95% Series G Cumulative Redeemable
Preferred Units (the “Series G Preferred
Units” ), the 7.000% Series H Cumulative Redeemable
Preferred Units (the “Series H Preferred
Units” ), the 6.875% Series I Cumulative Redeemable
Preferred Units (the “Series I Preferred
Units” ), the 7.50% Series J Cumulative Redeemable
Preferred Units (the “Series J Preferred
Units” ), the 7.950% Series K Cumulative Redeemable
Preferred Units (the “Series K Preferred
Units” ), the 7.60% Series L Cumulative Redeemable
Preferred Units (the “Series L Preferred
Units” ), and the 8 7/8% Series Y Cumulative
Redeemable Preferred Units (the “Series Y Preferred
Units” ). Notwithstanding the differing allocation rights
set forth in Section 4 below that apply to the Series D,
F, H, I, K, L and M Preferred Units (as compared to the
Series E, G, J and Y Preferred Units), for purposes of this
Amendment those Series D, F, H, I, K, L and M Preferred Units
and any future series of preferred units that rank in parity with
those series also shall be considered Parity Preferred Units to the
Series E, G, J and Y Preferred Units.
(c)
“Priority Return” means an amount equal to 7.20%
per annum, of the Liquidation Preference per Series M
Preferred Unit, commencing on the date of issuance of such
Series M Preferred Unit, determined on the basis of a 360-day
year (and twelve 30-day months), cumulative to the extent not
distributed on any Series M Preferred Unit Distribution
Payment Date (as defined below).
Creation
of Series M Preferred Units . (a) Designation and
Number. Pursuant to Section 4.2(a) of the Partnership
Agreement, a series of Partnership Units (as such term is defined
in the Partnership Agreement) in the Partnership designated as the
“7.20% Series M Cumulative Redeemable Preferred
Units” (the “Series M Preferred Units”
) is hereby established effective as of May 2, 2005. The
number of Series M Preferred Units shall be 3,000,000. The
Holders of Series M Preferred Units shall not have any
Percentage Interest (as such term is defined in the Partnership
Agreement) in the Partnership.
(b)
Capital Contribution . In return for the issuance to the
General Partner of the Series M Preferred Units set forth on
Exhibit C to this Amendment, the General Partner has
contributed to the Partnership the funds raised through the General
Partner’s issuance of the Depositary Shares (the General
Partner’s capital contribution shall be deemed to equal the
amount of the gross proceeds of that share issuance, i.e. ,
the net proceeds actually contributed, plus any underwriter’s
discount or other expenses incurred, with any such discount or
expense deemed to have been incurred by the General Partner on
behalf of the Partnership).
(c)
Construction . The Series M Preferred Units have been
created and are being issued in conjunction with the General
Partner’s issuance of the Depositary Shares relating to the
General Partner’s 7.20% Cumulative Preferred Stock,
Series M, and as such, the Series M Preferred Units are
intended to have designations, preferences and other rights, all
such that the economic interests are substantially similar to the
designations, preferences and other rights of the Depositary
Shares, and the terms of this Amendment shall be interpreted in a
fashion consistent with this intent.
Distributions
. (a) Payment of Distributions . Subject to the rights of
holders of Parity Preferred Units as to the payment of
distributions, pursuant to Section 5.1 of the Partnership
Agreement, holders of Series M Preferred Units shall be
entitled to receive, when, as and if declared by the Partnership
acting through the General Partner, the Priority Return. Such
distributions shall be cumulative, shall accrue from the original
date of issuance of the Series M Preferred Units and,
notwithstanding Section 5.1 of the Partnership Agreement, will
be payable (i) quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year commencing on
June 30, 2005 and (ii) in the event of a redemption of
Series M Preferred Units (each a “Series M
Preferred Unit Distribution Payment Date” ). If any date
on which distributions are to be made on the Series M
Preferred Units is not a Business Day (as defined below), then
payment of the distribution to be made on such date will be made on
the Business Day immediately preceding such date with the same
force and effect as if made on such date. Distributions on the
Series M Preferred Units will be made to the holders of record
of the Series M Preferred Units on the relevant record dates
to be fixed by the Partnership acting through the General Partner,
which record dates shall in no event exceed
fifteen (15) Business
Days prior to the relevant Series M Preferred Unit
Distribution Payment Date. Business Day shall be any day other than
a Saturday, Sunday or day on which banking institutions in the
State of New York or the State of California are authorized or
obligated by law to close, or a day which is or is declared a
national or a New York or California state holiday.
(b)
Prohibition on Distribution . No distributions on
Series M Preferred Units shall be authorized by the General
Partner or paid or set apart for payment by the Partnership at any
such time as the terms and provisions of any agreement of the
Partnership or the General Partner, including any agreement
relating to their 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 to the
extent that such authorization or payment shall be restricted or
prohibited by law.
(c)
Distributions Cumulative . Distributions on the
Series M Preferred Units will accrue whether or not the terms
and provisions of any agreement of the Partnership, including any
agreement relating to its indebtedness, at any time prohibit the
current payment of distributions, whether or not the Partnership
has earnings, whether or not there are funds legally available for
the payment of such distributions and whether or not such
distributions are authorized. Accrued but unpaid distributions on
the Series M Preferred Units will accumulate as of the
Series M Preferred Unit Distribution Payment Date on which
they first become payable. Distributions on account of arrears for
any past distribution periods may be declared and paid at any time,
without reference to a regular Series M Preferred Unit
Distribution Payment Date, to holders of record of the
Series M Preferred Units on the record date fixed by the
Partnership acting through the General Partner which date shall not
exceed fifteen (15) Business Days prior to the payment date.
Accumulated and unpaid distributions will not bear
interest.
(d)
Priority as to Distributions . Subject to the provisions of
Article 13 of the Partnership Agreement:
(i) So
long as any Series M Preferred Units are outstanding, no
distribution of cash or other property shall be authorized,
declared, paid or set apart for payment on or with respect to any
class or series of Partnership Interests ranking junior as to the
payment of distributions or rights upon a voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership to the
Series M Preferred Units (collectively, “Junior
Units” ), nor shall any cash or other property be set
aside for or applied to the purchase, redemption or other
acquisition for consideration of any Series M Preferred Units,
any Parity Preferred Units or any Junior Units, unless, in each
case, all distributions accumulated on all Series M Preferred
Units and all classes and series of outstanding Parity Preferred
Units have been paid in full. The foregoing sentence shall not
prohibit (x) distributions payable
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