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EXHIBIT 10.3
SIXTH AMENDMENT TO
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
COLONIAL REALTY LIMITED PARTNERSHIP
THIS SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF COLONIAL REALTY
LIMITED PARTNERSHIP (this "Sixth
Amendment" to the "Partnership Agreement"),
dated as of April 30, 2003, 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 April 3, 2003, and a
Terms Agreement dated as of April 3,
2003, pursuant to which Colonial Properties
has agreed to issue up to 500,000
Series D Cumulative Redeemable Preferred
Shares of Beneficial Interest, par
value $0.01 per share (the "Series D
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
D Preferred Shares in exchange for up to
500,000 Series D Preferred Units (as
defined below); and
WHEREAS, in connection with the issuance of the Series D
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 D Cumulative Redeemable
Preferred Units (the "Series D
Preferred Units"), and to set forth the
designations, rights, powers,
preferences and duties of such Series D
Preferred Units, which are substantially
the same as those of the Series D Preferred
Shares.
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.G the
following section:
H.
Series D 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 D
Cumulative Redeemable Preferred Units" (the "Series D
Preferred Units"). Series D Preferred Units shall have the
designations, preferences, rights, powers and duties as set
forth in Exhibit K hereto.
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2.
Exhibits to Partnership Agreement.
The
Partnership Agreement is hereby amended by attaching
thereto as Exhibit K the Exhibit K attached
hereto.
3.
Certain Capitalized Terms. All capitalized terms used
in this Sixth 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 Sixth
Amendment as of the date first set forth
above.
COLONIAL PROPERTIES TRUST,
as General Partner of
Colonial Realty Limited Partnership
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 K
DESIGNATION OF THE PREFERENCES, RIGHTS,
VOTING POWERS, RESTRICTIONS,
QUALIFICATIONS AND LIMITATIONS
OF THE
SERIES D PREFERRED UNITS
The Series D Preferred Units shall have the following
designations, preferences, rights, powers
and duties:
(1) Certain
Defined Terms. The following
capitalized terms used in this Exhibit K shall have the
respective
meanings set
forth below:
"Distribution Period" means quarterly periods commencing on or
about the first day of February, May, August and November 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 April 30, 2003 and end on July
31,
2003, and other than the Distribution Period during which any
Series D
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 D 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 D 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 D Preferred Units, shall be entitled
to
receive out of funds legally available therefor, distributions
payable
in cash at the rate of $20.3125 per Series D Preferred Unit per
year,
payable in equal amounts of $5.078125 per unit quarterly in cash on
the
last day of each January, April, July and October or, if not a
Business
Day, the next succeeding Business Day beginning on July 31, 2003
(each
such day being hereafter called a "Quarterly Distribution
Date").
Quarterly distributions on each Series D Preferred Unit shall begin
to
accrue and
shall be fully cumulative from April 30, 2003. Quarterly
distributions paid on the Series D 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 D 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
