UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 23, 2020
BRAEMAR HOTELS & RESORTS INC.
(Exact name of registrant as specified in its charter)
| Maryland | 001-35972 | 46-2488594 |
|
(State or other jurisdiction of
incorporation or organization) |
(Commission file number) |
(I.R.S. Employer Identification
Number) |
|
14185 Dallas Parkway, Suite 1100, Dallas, Texas |
75254 |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (972) 490-9600
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2 (b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4 (c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|
Common Stock |
BHR | New York Stock Exchange |
| Preferred Stock, Series B | BHR-PB | New York Stock Exchange |
| Preferred Stock, Series D | BHR-PD | New York Stock Exchange |
| ITEM 1.01. | ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. |
On January 24, 2020, Braemar Hotels & Resorts Inc. (the “Company”), through its subsidiaries, Braemar OP General Partner LLC and Braemar OP Limited Partner LLC, executed Amendment No. 4 to the Third Amended and Restated Agreement of Limited Partnership (the “Partnership Agreement Amendment”) of Braemar Hospitality Limited Partnership (the “Operating Partnership”), in connection with the Company’s public offering of its Series E Redeemable Preferred Stock, par value $0.01 per share (the “Series E Preferred Stock”), and Series M Redeemable Preferred Stock, par value $0.01 per share (the “Series M Preferred Stock,” and together with the Series E Preferred Stock, the “Preferred Stock”)). The Partnership Agreement Amendment designated and authorized the issuance to Braemar OP Limited Partner LLC by the Operating Partnership of: (i) up to 28,000,000 Series E Redeemable Preferred Units of the Operating Partnership having substantially the same designations, preferences and other rights as the economic rights of the Series E Preferred Stock and (ii) up to 28,000,000 Series M Redeemable Preferred Units of the Operating Partnership having substantially the same designations, preferences and other rights as the economic rights of the Series M Preferred Stock.
The description of the Partnership Agreement Amendment in this report does not purport to be complete and is qualified in its entirety by reference to the full text of the Partnership Agreement Amendment, which is filed as Exhibit 10.1 hereto and is incorporated by reference herein.
| ITEM 3.03. | MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS. |
On January 23, 2020, the Company filed: (i) Articles Supplementary to the Company’s Articles of Amendment and Restatement with the State Department of Assessments and Taxation of the State of Maryland (“SDAT”) classifying and designating 28,000,000 shares of the Company’s authorized capital stock as shares of the Series E Preferred Stock (the “Series E Articles Supplementary”) and (ii) Articles Supplementary to the Company’s Articles of Amendment and Restatement with the SDAT classifying and designating 28,000,000 shares of the Company’s authorized capital stock as shares of the Series M Preferred Stock (the “Series M Articles Supplementary,” and together with the Series E Articles Supplementary, the “Articles Supplementary”).
As set forth in the Articles Supplementary, the Series E Preferred Stock and the Series M Preferred Stock rank: (i) senior to all classes or series of the Company’s common stock and future junior securities; (ii) on a parity with each other and each other series of the Company’s outstanding preferred stock, including the 5.50% Series B Cumulative Convertible Preferred Stock, par value $0.01 per share, the 8.25% Series D Cumulative Preferred Stock, par value $0.01 per share, and with any future parity securities, and (iii) junior to any future senior securities and to all of the Company’s existing and future indebtedness, with respect to the payment of dividends and rights upon liquidation, dissolution or winding up of the Company’s affairs.
Each share of Preferred Stock will have a “Stated Value” of $25.00. Upon any voluntary or involuntary liquidation, dissolution or winding up of the Company’s affairs, the holders of the Preferred Stock will have the right to receive the Stated Value, plus an amount equal to any accrued but unpaid dividends (whether or not declared) to, but not including, the date of payment, before any distribution or payment is made to the holders of the Company’s common stock or any other class or series of capital stock ranking junior to the Preferred Stock. The rights of the holders of the Preferred Stock to receive the Stated Value will be subject to the rights of holders of the Company’s debt, holders of any equity securities ranking senior in liquidation preference to the Preferred Stock (none of which are currently outstanding) and the proportionate rights of holders of each other series or class of the Company’s equity securities ranked on a parity with the Preferred Stock.
Holders of Series E Preferred Stock are entitled to receive, when and as authorized by the Company’s Board of Directors (the “Board”) and declared by the Company out of legally available funds, cumulative cash dividends on each share of Series E Preferred Stock at an annual rate of 6.5% of the Stated Value (equivalent to an annual dividend rate of $1.625 per share). Holders of the Series M Preferred Stock are entitled to receive, when and as authorized by the Board and declared by the Company out of legally available funds, cumulative cash dividends on each share of Series M Preferred Stock at an annual rate of 7.0% of the Stated Value (equivalent to an annual dividend rate of $1.75 per share). Beginning one year from the “date of original issuance” of each share of Series M Preferred Stock, and on each one-year anniversary thereafter for such Series M Preferred Stock, the dividend rate will increase by 0.10% per annum for such share; provided, however, that the dividend rate for any share of Series M Preferred Stock shall not exceed 7.5% per annum. The Company expects to authorize and declare dividends on the shares of Preferred Stock on a monthly basis, payable on the 15th day of each month (or if such payment date is not a business day, on the next succeeding business day). The timing and amount of such dividends will be determined by the Board, in its sole discretion, and may vary from time to time.
Subject to certain exceptions and limitations, a holder of the Preferred Stock will have the right to require the Company to redeem any or all of such holder’s shares of Preferred Stock at a redemption price equal to 100% of the Stated Value, less the applicable redemption fee, if any, plus an amount equal to any accrued but unpaid dividends (whether or not authorized or declared) to, but not including, the date fixed for redemption. For so long as the Company’s common stock is listed on a national securities exchange, if a holder of Preferred Stock causes the Company to redeem such shares of Preferred Stock, the Company has the right, in its sole discretion, to pay the redemption price in cash or in equal value of shares of common stock or any combination thereof, based on the closing price per share of common stock for the single trading day prior to the date of redemption.
After three years from the “date of original issuance” of the shares of Preferred Stock to be redeemed, the Company will have the right (but not the obligation) to redeem such shares of Preferred Stock, in whole or in part, at a redemption price equal to 100% of the Stated Value, plus an amount equal to any accrued but unpaid dividends (whether or not authorized or declared) to, but not including, the date fixed for redemption. For so long as the Company’s common stock is listed on a national securities exchange, if the Company chooses to redeem any shares of Preferred Stock, the Company has the right, in its sole discretion, to pay the redemption price in cash or in equal value of shares of common stock or any combination thereof, based on the closing price per share of common stock for the single trading day prior to the date of redemption.
Upon the occurrence of a Change of Control (as defined below), the Company will have the right (but not the obligation) to redeem the outstanding shares of Preferred Stock, in whole or in part, within 120 days after the first date on which such Change of Control occurred, in cash at a redemption price equal to 100% of the Stated Value, plus an amount equal to any accrued but unpaid dividends (whether or not authorized or declared) to, but not including, the date fixed for redemption. If, prior to the Change of Control Conversion Date (as defined below), the Company has provided or provides notice of redemption with respect to the Preferred Stock (whether pursuant to the Company’s optional redemption right or the Company’s special optional redemption right), the holders of Preferred Stock will not have the conversion right described below.
A “Change of Control” is when the following have occurred and are continuing:
| · | the acquisition by any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of shares of the Company entitling that person to exercise more than 50% of the total voting power of all shares of the Company entitled to vote generally in elections of directors (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); and |
| · | following the closing of any transaction referred to in the bullet point above, neither the Company nor the acquiring or surviving entity has a class of common securities (or American Depositary Receipts representing such securities) listed on the New York Stock Exchange (“NYSE”), the NYSE American (“NYSE American”) or the NASDAQ Stock Market (“NASDAQ”) or listed or quoted on an exchange or quotation system that is a successor to the NYSE, the NYSE American or NASDAQ. |
Upon the occurrence of a Change of Control, each holder of Preferred Stock will have the right, at such holder’s option, unless, prior to the Change of Control Conversion Date, the Company has provided or provides notice of the Company’s election to redeem the Preferred Stock, to convert some or all of the Preferred Stock held by such holder on the Change of Control Conversion Date into a number of shares of the Company’s common stock. The number of shares of common stock to be issued per share of Preferred Stock to be converted will equal to the lesser of:
| · | the quotient obtained by dividing (i) the sum of the Stated Value plus an amount equal to any accrued and unpaid dividends (whether or not authorized or declared) to, but not including, the Change of Control Conversion Date (unless the Change of Control Conversion Date is after a dividend record date for the Preferred Stock and prior to the corresponding Preferred Stock dividend payment date, in which case no additional amount for such accrued and unpaid dividend will be included in this sum) by (ii) the Common Stock Price (as defined below); and |
| · | 5.69476 (the “Share Cap”), subject to certain adjustments; |
subject, in each case, to provisions for the receipt of alternative consideration.
If, prior to the Change of Control Conversion Date, the Company has provided or provides notice of its election to redeem the Preferred Stock, whether pursuant to the Company’s optional redemption right or the Company’s special optional redemption right, the holders of Preferred Stock will not have any right to convert the Preferred Stock in connection with the Change of Control Conversion Right (as defined below), and any shares of Preferred Stock subsequently selected for redemption that have been tendered for conversion will be redeemed on the related date of redemption instead of converted on the Change of Control Conversion Date.
The “Change of Control Conversion Right” is the right of each holder of Preferred Stock to convert some or all of the Preferred Stock held by such holder upon the occurrence of a Change of Control.
The “Change of Control Conversion Date” is the date the Preferred Stock is to be converted, which will be a business day that is no fewer than 20 days nor more than 35 days after the date on which the Company provides the notice described above to the holders of Preferred Stock.
The “Common Stock Price” means: (i) the amount of cash consideration per share of common stock, if the consideration to be received in the Change of Control by the holders of common stock is solely cash; or (ii) the average of the closing prices for common stock on the NYSE for the 10 consecutive trading days immediately preceding, but not including, the effective date of the Change of Control or, if the common stock is no longer listed or quoted on an exchange, the fair market value of the common stock, if the consideration to be received in the Change of Control by the holders of common stock is other than solely cash.
Subject to the provisions of the Company’s charter regarding the restrictions on transfer and ownership of stock, each outstanding share of the Preferred Stock entitles the holder to one vote on all matters submitted to a vote of the holders of the Company’s common stock, including the election of directors. In addition, holders of the Preferred Stock will have additional special voting rights if the Company fails to pay dividends on the Preferred Stock for 18 or more monthly periods (whether or not consecutive) and under certain other circumstances.
The description of the Preferred Stock in this report does not purport to be complete and is qualified in its entirety by reference to the full text of the Series E Articles Supplementary and the Series M Articles Supplementary, which are filed as Exhibits 3.2 and 3.3 hereto, respectively, and are incorporated herein by reference.
| ITEM 5.03. | AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR. |
On January 23, 2020, the Company filed Articles of Amendment with the SDAT to the Company’s Articles of Amendment and Restatement to: (i) increase the number of authorized shares of common stock, par value $0.01 per share, of the Company from 200,000,000 to 250,000,000 and (ii) increase the number of authorized shares of preferred stock, par value $0.01 per share, of the Company from 50,000,000 to 80,000,000. The Articles of Amendment were effective upon filing.
On January 23, 2020, the Company filed the Series E Articles Supplementary with the SDAT designating the rights, preferences and privileges of the Series E Preferred Stock. The Series E Articles Supplementary were effective upon filing. The information about the Series E Articles Supplementary under Item 3.03 of this report, including the summary description of the rights, preferences and privileges of the Series E Preferred Stock, is incorporated herein by reference.
On January 23, 2020, the Company filed the Series M Articles Supplementary with the SDAT designating the rights, preferences and privileges of the Series M Preferred Stock. The Series M Articles Supplementary were effective upon filing. The information about the Series M Articles Supplementary under Item 3.03 of this report, including the summary description of the rights, preferences and privileges of the Series E Preferred Stock, is incorporated herein by reference.
The descriptions of the Articles of Amendment and the Articles Supplementary in this report do not purport to be complete and are qualified in their entirety by reference to the full text of the Articles of Amendment, the Series E Articles Supplementary and the Series M Articles Supplementary, which are filed as Exhibits 3.1, 3.2 and 3.3 hereto, respectively, and are incorporated by reference herein.
| ITEM 8.01. | OTHER EVENTS. |
In connection with the offering of the Preferred Stock, the Company expects to enter into a Dealer Manager Agreement (the “Dealer Manager Agreement”) with Ashford Securities LLC (the “Dealer Manager”), an affiliate of Ashford Hospitality Advisors LLC, the Company’s advisor, whereby the Dealer Manager will serve as the Company’s exclusive dealer manager in connection with the Company’s primary offering of up to 20,000,000 shares of the Series E Preferred Stock or Series M Preferred Stock on a “reasonable best efforts” basis. In addition to the primary offering, the Company is also offering up to 8,000,000 shares of Series E Preferred Stock or Series M Preferred Stock pursuant to a dividend reinvestment plan (the “DRP”) at $25.00 per share. The Company reserves the right to reallocate the shares of Preferred Stock being offered between the primary offering and the DRP.
The Company previously filed a registration statement on Form S-3 (File No. 333-234663), including a preliminary prospectus, as the same may be amended and/or supplemented (the “Registration Statement”), with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended, relating to the offering and sale of the Preferred Stock. The Registration Statement has not been declared effective by the SEC and no sales of the Preferred Stock may be made under the Registration Statement until that time. This report does not constitute an offer to sell the Preferred Stock and is not soliciting an offer to buy the Preferred Stock in any state or jurisdiction in which such an offer or solicitation would be unlawful.
| ITEM 9.01. | FINANCIAL STATEMENTS AND EXHIBITS. |
(d) Exhibit
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: January 24, 2020 | BRAEMAR HOTELS & RESORTS INC. | |
| By: | /s/ Robert G. Haiman | |
| Robert G. Haiman | ||
| Executive Vice President, General Counsel & Secretary | ||
Exhibit 10.1
AMENDMENT NO. 4
TO THE THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRAEMAR HOSPITALITY LIMITED PARTNERSHIP
January 24, 2020
This Amendment No. 4 to the Third Amended and Restated Agreement of Limited Partnership of Braemar Hospitality Limited Partnership (this “Amendment”) is made as of January 24, 2020, by Braemar OP General Partner LLC, a Delaware limited liability company, as general partner (the “General Partner”) of Braemar Hospitality Limited Partnership, a Delaware limited partnership (the “Partnership”), pursuant to the authority granted to the General Partner in Section 11.1(b) of the Third Amended and Restated Agreement of Limited Partnership of Braemar Hospitality Limited Partnership, dated March 7, 2017, as amended by Amendment No. 1 thereto dated as of April 23, 2018, Amendment No. 2 thereto dated as of November 20, 2018 and Amendment No. 3 thereto dated as of December 3, 2019 (the “Partnership Agreement”), for the purpose of issuing additional Partnership Units in the form of Preferred Partnership Units. Capitalized terms used and not defined herein shall have the meanings set forth in the Partnership Agreement.
WHEREAS, the Board of Directors (the “Board”) of Braemar Hotels & Resorts Inc. (the “Company”) adopted resolutions on November 5, 2019 and January 22, 2020 classifying and designating (i) 28,000,000 shares of Preferred Stock (as defined in the Articles of Amendment and Restatement of the Company (as amended and supplemented to date and as may be amended and supplemented from time to time, the “Charter”)) as Series E Preferred Stock (as defined below) and (ii) 28,000,000 shares of Preferred Stock as Series M Preferred Stock (as defined below);
WHEREAS, the Board filed Articles Supplementary to the Charter with the State Department of Assessments and Taxation of Maryland on January 23, 2020, establishing the Series E Preferred Stock, each with such preferences, rights, powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption as described in the Series E Articles Supplementary (as defined below);
WHEREAS, the Board filed Articles Supplementary to the Charter with the State Department of Assessments and Taxation of Maryland on January 23, 2020, establishing the Series M Preferred Stock, with such preferences, rights, powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption as described in the Series M Articles Supplementary (as defined below);
WHEREAS, Section 11.1(b) of the Partnership Agreement permits the General Partner to amend the Partnership Agreement without the approval of any other Partner if such amendment is to create, issue or reflect the creation or issuance of additional Partnership Interests;
WHEREAS, the General Partner has determined that, in connection with the issuance of the Series E Preferred Stock and the Series M Preferred Stock, it is necessary and desirable to amend the Partnership Agreement to create additional Partnership Units in the form of Preferred Partnership Units having designations, preferences and other rights which are substantially the same as the economic rights of the Series E Preferred Stock and the Series M Preferred Stock; and
WHEREAS, the General Partner desires to so amend the Partnership Agreement as of the date first set forth above.
NOW, THEREFORE, in consideration of the foregoing 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. Article I is amended to add the following defined terms in their respective alphabetical order within Article I:
“Series E Articles Supplementary” shall mean the Articles Supplementary Establishing and Fixing the Rights and Preferences of a Series of Preferred Stock, designating the rights and preferences of the Series E Redeemable Preferred Stock, filed as part of the Company’s charter with the State Department of Assessments and Taxation of Maryland, on January 23, 2020.
“Series E Preferred Partnership Interests” shall mean a partnership interest in the Partnership evidenced by the Series E Preferred Partnership Units, having a preference in payment of distributions or on liquidation as set forth in Exhibit I to this Agreement.
“Series E Preferred Partnership Units” shall mean the series of Preferred Partnership Units established pursuant to this Agreement, representing a fractional, undivided share of the Series E Preferred Partnership Interests of all Partners issued under this Agreement.
“Series E Preferred Stock” shall mean the Series E Redeemable Preferred Stock of the Company, with such preferences, rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption as described in the Series E Articles Supplementary.
“Series M Articles Supplementary” shall mean the Articles Supplementary Establishing and Fixing the Rights and Preferences of a Series of Preferred Stock, designating the rights and preferences of the Series M Redeemable Preferred Stock, filed as part of the Company’s charter with the State Department of Assessments and Taxation of Maryland, on January 23, 2020.
“Series M Preferred Partnership Interests” shall mean a partnership interest in the Partnership evidenced by the Series M Preferred Partnership Units, having a preference in payment of distributions or on liquidation as set forth in Exhibit J to this Agreement.
“Series M Preferred Partnership Units” shall mean the series of Preferred Partnership Units established pursuant to this Agreement, representing a fractional, undivided share of the Series M Preferred Partnership Interests of all Partners issued under this Agreement.
“Series M Preferred Stock” shall mean the Series M Redeemable Preferred Stock of the Company, with such preferences, rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption as described in the Series M Articles Supplementary.
2. In accordance with Section 4.3 of the Partnership Agreement, set forth in Exhibit I hereto are the terms and conditions of the Series E Preferred Partnership Units which are hereby established and issued to Braemar OP Limited Partner, LLC in consideration of its contribution to the Partnership of the proceeds from the issuance and sale of the Series E Preferred Stock by the Company. The Partnership Agreement is hereby amended to incorporate such Exhibit I as Exhibit I thereto.
3. In accordance with Section 4.3 of the Partnership Agreement, set forth in Exhibit J hereto are the terms and conditions of the Series M Preferred Partnership Units which are hereby established and issued to Braemar OP Limited Partner, LLC in consideration of its contribution to the Partnership of the proceeds from the issuance and sale of the Series M Preferred Stock by the Company. The Partnership Agreement is hereby amended to incorporate such Exhibit J as Exhibit J thereto.
4. 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 confirms.
5. This Amendment shall be construed and enforced in accordance with and governed by the laws of the State of Delaware, without regard to conflicts of law.
6. If any provision of this Amendment is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set forth above.
|
Braemar OP General Partner LLC,
a Delaware limited liability company, as General Partner of Braemar Hospitality Limited Partnership |
|||
| By: | /s/ Robert G. Haiman | ||
| Name: | Robert G. Haiman | ||
| Title: | Executive Vice President, General Counsel and Secretary | ||
[Amendment No. 4 to Third Amended and Restated LP Agreement of Braemar Hospitality Limited Partnership]
EXHIBIT I
DESIGNATION OF TERMS AND CONDITIONS OF SERIES E PREFERRED PARTNERSHIP UNITS
(a) Designation and Number. A series of Preferred Partnership Units, designated as Series E Preferred Partnership Units, is hereby established. The number of authorized Series E Preferred Partnership Units shall be 28,000,000.
(b) Rank. The Series E Preferred Partnership Units, with respect to rights to distributions and payments to Partners and the distribution of assets upon the liquidation, dissolution or winding up of the Partnership, rank (a) prior or senior to the Common Partnership Units and all Partnership Units issued by the Partnership (“Junior Units”) the terms of which specifically provide that such Partnership Units rank junior to the Series E Preferred Partnership Units; (b) on a parity with the Series B Preferred Partnership Units, the Series D Preferred Partnership Units, the Series M Preferred Partnership Units and all other Partnership Units issued in the future by the Partnership (“Parity Units”) the terms of which specifically provide that such Partnership Units rank on a parity with the Series E Preferred Partnership Units; (c) junior to all Partnership Units issued by the Partnership the terms of which specifically provide that such Partnership Units rank senior to the Series E Preferred Partnership Units; and (d) junior to all of the Partnership’s existing and future indebtedness.
(c) Distributions.
(i) Pursuant to Section 8.1 of the Partnership Agreement but subject to the rights of holders of any Preferred Partnership Units ranking senior to the Series E Preferred Partnership Units as to the payment of distributions, Braemar OP Limited Partner LLC, in its capacity as the holder of the then outstanding Series E Preferred Partnership Units, shall be entitled to receive, when and as authorized by the General Partner, from the Cash Flow, cumulative monthly preferential cash distributions in an amount per Series E Preferred Partnership Unit equal to 6.5% per annum of the stated value of $25.00 per Series E Preferred Partnership Unit (the “Stated Value”) (equivalent to an annual distribution rate of $1.625 per Series E Preferred Partnership Unit). Distributions shall be payable monthly on the 15th day of each month (or, if such payment date is not a Business Day, the next succeeding Business Day, with the same force and effect as if paid on such distribution payment date, and no interest or additional distributions or other sums shall accrue on the amount so payable from such distribution payment date to such next succeeding Business Day). Distributions of Preferred Return shall be payable in arrears to holders of record as they appear on the records of the Partnership at the close of business on the last Business Day of each month immediately preceding the applicable distribution payment date, which dates shall be the Partnership Record Dates for the Series E Preferred Partnership Units. Any distribution of Preferred Return payable on the Series E Preferred Partnership Units for any distribution period (as defined below) will be computed on the basis of twelve 30-day months and a 360-day year. Except for distributions in liquidation or redemption as provided in Sections D and E, respectively, holders of Series E Preferred Partnership Units will not be entitled to receive any distributions in excess of full cumulative Preferred Returns accrued on the Series E Preferred Partnership Units at the distribution rate specified in this paragraph. No interest will be paid in respect of any distribution payment or payments on the Series E Preferred Partnership Units that may be in arrears.
(ii) Distributions of Preferred Return on each Series E Preferred Partnership Unit shall be cumulative from (and including) the first day of the distribution period during which such Series E Preferred Partnership Unit was originally issued, whether or not in any distribution period or periods (x) such distributions shall be authorized by the General Partner, (y) there shall be funds legally available for the payment of such distributions or (z) any agreement prohibits the Partnership’s payment of such distributions. As used herein, “distribution period” shall mean the respective periods commencing on, and including, the first day of each month of each year and ending on, and including, the day preceding the first day of the next succeeding distribution period (other than the distribution period during which any Series E Preferred Partnership Units shall be redeemed or otherwise acquired by the Partnership, which shall end on, and include, the day preceding the redemption or acquisition date with respect to the Series E Preferred Partnership Units being redeemed or acquired).
I-1
(iii) When distributions of Preferred Return are not paid in full upon the Series E Preferred Partnership Units or any other series of Parity Units, or a sum sufficient for such payment is not set apart, all distributions of Preferred Return authorized by the General Partner upon the Series E Preferred Partnership Units and any other series of Parity Units shall be authorized by the General Partner ratably in proportion to the respective amounts of such distributions accumulated, accrued and unpaid on the Series E Preferred Partnership Units and accumulated, accrued and unpaid on such Parity Units. Except as set forth in the preceding sentence, unless distributions on the Series E Preferred Partnership Units equal to the full amount of accumulated, accrued and unpaid distributions of Preferred Return have been or contemporaneously are authorized by the General Partner and paid, or authorized by the General Partner and a sum sufficient for the payment thereof set apart for such payment for all past distribution periods, no distributions (other than distributions paid in Junior Units or options, warrants or rights to subscribe for or purchase Junior Units) shall be authorized by the General Partner or paid or set aside for payment by the Partnership with respect to any class or series of Parity Units. Unless distributions of Preferred Return on the Series E Preferred Partnership Units equal to the full amount of accumulated, accrued and unpaid distributions have been or contemporaneously are authorized by the General Partner and paid, or authorized by the General Partner and a sum sufficient for the payment thereof set apart for such payment for all past distribution periods, no distributions (other than distributions paid in Junior Units or options, warrants or rights to subscribe for or purchase Junior Units) shall be authorized by the General Partner or paid or set apart for payment by the Partnership with respect to any Junior Units, nor shall any Junior Units or Parity Units be redeemed, purchased or otherwise acquired for any consideration, or any monies be paid to or made available for a sinking fund for the redemption of any Junior Units or Parity Units (except by conversion or exchange for Junior Units, or options, warrants or rights to subscribe for or purchase Junior Units), nor shall any other cash or property be paid or distributed to or for the benefit of holders of Junior Units or Parity Units. Notwithstanding the foregoing, the General Partner shall not be prohibited from (i) authorizing or paying or setting apart for payment any Preferred Return or distribution on any Junior Units or Parity Units or (ii) redeeming, purchasing or otherwise acquiring any Junior Units or Parity Units, in each case, if such authorization, payment, redemption, purchase or other acquisition is necessary to maintain the Company’s qualification as a REIT.
(iv) No distribution of Preferred Return on the Series E Preferred Partnership Units shall be authorized by the General Partner or paid or set apart for payment at such time as the terms and provisions of any agreement of the Partnership, including any agreement of the Partnership relating to the Partnership’s 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 if such authorization, payment or setting apart for payment shall be restricted or prohibited by law.
(v) In determining whether a distribution (other than upon voluntary or involuntary liquidation, dissolution or winding up of the Partnership) of Preferred Return or in redemption or otherwise, is permitted, amounts that would be needed, if the Partnership were to be dissolved at the time of the distribution, to satisfy the liquidation preference of the Series E Preferred Partnership Units (as provided in Section D below) will not be added to the Partnership’s total liabilities.
(d) Liquidation Preference.
(i) Upon any voluntary or involuntary liquidation, dissolution or winding up of the Partnership, before any distribution or payment shall be made to or set apart for the holders of any Junior Units, Braemar OP Limited Partner LLC, in its capacity as holder of the Series E Preferred Partnership Units, shall be entitled to receive a liquidation preference distribution equal to the Stated Value per Series E Preferred Partnership Unit, plus an amount equal to all accumulated, accrued and unpaid Preferred Return to, but not including, the date of final distribution, but Braemar OP Limited Partner LLC shall not be entitled to any further payment with respect thereto. If upon any liquidation, dissolution or winding up of the Partnership, its assets, or proceeds thereof, distributable among Braemar OP Limited Partner LLC, in its capacity as the holder of the Series E Preferred Partnership Units, shall be insufficient to pay in full the above described preferential distribution and liquidating distributions on any other series of Parity Units, then such assets, or the proceeds thereof, shall be distributed among Braemar OP Limited Partner LLC, in its capacity as the holder of the Series E Preferred Partnership Units, and the holders of any such other Parity Units ratably in the same proportion as the respective amounts that would be payable on such Series E Preferred Partnership Units and any such other Parity Units if all amounts payable thereon were paid in full.
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(ii) Upon any liquidation, dissolution or winding up of the affairs of the Partnership, after payment of the full amount of liquidating distributions have been made to Breamar OP Limited Partner LLC, in its capacity as the holder of the Series E Preferred Partnership Units, holders of the Series E Preferred Partnership Units shall have no right or claim to any of the remaining assets of the Partnership.
(iii) None of a consolidation or merger of the Partnership with or into any other corporation, trust or other entity, a consolidation or merger of any other corporation, trust or other entity with or into the Partnership, a statutory unit exchange by the Partnership or a sale, lease, transfer or conveyance of any or all of the Partnership’s assets or business shall be deemed to constitute a liquidation, dissolution or winding up of the affairs of the Partnership.
(e) Redemption. In connection with the cash redemption by the Company of any shares of Series E Preferred Stock in accordance with the provisions of the Series E Articles Supplementary, the Partnership shall provide cash to Braemar OP Limited Partner LLC for such purpose which shall be equal to the applicable redemption price (as set forth in the Series E Articles Supplementary), plus all distributions of Preferred Return accumulated and unpaid to, but not including, the applicable redemption date (as set forth in the Series E Articles Supplementary), and one Series E Preferred Partnership Unit shall be concurrently redeemed with respect to each share of Series E Preferred Stock so redeemed by the Company. In connection with the redemption by the Company of any shares of Series E Preferred Stock for shares of REIT Common Shares in accordance with the provisions of the Series E Articles Supplementary, the Partnership shall convert Series E Preferred Partnership Units into Common Partnership Units and issue such Common Partnership Units to Braemar OP Limited Partner LLC. The number of Common Partnership Units into which the Series E Preferred Partnership Units are convertible shall be equal to the number of REIT Common Shares into which the Series E Preferred Stock is then being redeemed, as set forth in the Series E Articles Supplementary. From and after the applicable redemption date, the Series E Preferred Partnership Units so redeemed shall no longer be outstanding and all rights hereunder, to distributions or otherwise, with respect to such Series E Preferred Partnership Units shall cease.
(f) Voting Rights. Except as required by applicable law, the holder of the Series E Preferred Partnership Units, as such, shall have no voting rights.
(g) Conversion. In connection with the conversion by the Company of any shares of Series E Preferred Stock into shares of REIT Common Shares in accordance with the provisions of the Series E Articles Supplementary, the Partnership shall convert Series E Preferred Partnership Units into Common Partnership Units and issue such Common Partnership Units to Braemar OP Limited Partner LLC. The number of Common Partnership Units into which the Series E Preferred Partnership Units are convertible shall be equal to the number of REIT Common Shares into which the Series E Preferred Stock is then being converted, as set forth in the Series E Articles Supplementary. From and after the applicable Change of Control Conversion Date (as such term is defined in the Series E Articles Supplementary), the Series E Preferred Partnership Units so converted shall no longer be outstanding and all rights hereunder, to distributions or otherwise, with respect to such Series E Preferred Partnership Units shall cease.
(h) Restriction on Ownership. The Series E Preferred Partnership Units shall be owned and held solely by Braemar OP Limited Partner LLC.
(i) Allocations. Allocations of the Partnership’s items of income, gain, loss and deduction allocable with respect to Series E Preferred Partnership Units shall be allocated pro rata among holders of Series E Preferred Partnership Units in accordance with Article V of the Partnership Agreement.
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EXHIBIT J
DESIGNATION OF TERMS AND CONDITIONS OF SERIES M PREFERRED PARTNERSHIP UNITS
(a) Designation and Number. A series of Preferred Partnership Units, designated as Series M Preferred Partnership Units, is hereby established. The number of authorized Series M Preferred Partnership Units shall be 28,000,000.
(b) Rank. The Series M Preferred Partnership Units, with respect to rights to distributions and payments to Partners and the distribution of assets upon the liquidation, dissolution or winding up of the Partnership, rank (a) prior or senior to the Common Partnership Units and all Partnership Units issued by the Partnership (“Junior Units”) the terms of which specifically provide that such Partnership Units rank junior to the Series M Preferred Partnership Units; (b) on a parity with the Series B Preferred Partnership Units, the Series D Preferred Partnership Units, the Series E Preferred Partnership Units and all other Partnership Units issued in the future by the Partnership (“Parity Units”) the terms of which specifically provide that such Partnership Units rank on a parity with the Series M Preferred Partnership Units; (c) junior to all Partnership Units issued by the Partnership the terms of which specifically provide that such Partnership Units rank senior to the Series M Preferred Partnership Units; and (d) junior to all of the Partnership’s existing and future indebtedness.
(c) Distributions.
(i) Pursuant to Section 8.1 of the Partnership Agreement but subject to the rights of holders of any Preferred Partnership Units ranking senior to the Series M Preferred Partnership Units as to the payment of distributions, Braemar OP Limited Partner LLC, in its capacity as the holder of the then outstanding Series M Preferred Partnership Units, shall be entitled to receive, when and as authorized by the General Partner, from the Cash Flow, cumulative monthly preferential cash distributions in an amount per Series M Preferred Partnership Unit equal to 7.0% per annum of the stated value of $25.00 per Series M Preferred Partnership Unit (the “Stated Value”) (equivalent to an annual distribution rate of $1.75 per Series M Preferred Partnership Unit). Beginning one year from the date of original issuance of each Series M Preferred Partnership Unit, and on each one year anniversary thereafter for such Series M Preferred Partnership Unit, the dividend rate shall increase by 0.10% per annum for such Series M Preferred Partnership Unit; provided, however, that the dividend rate for any Series M Preferred Partnership Unit shall not exceed 7.5% per annum of the Stated Value. For purposes of this section (c)(i) only, the “date of the original issuance” of the Series M Preferred Partnership Unit shall mean the earliest date that any Series M Preferred Partnership Unit was issued during the calendar quarter in which the Series M Preferred Partnership Unit was issued. Distributions shall be payable monthly on the 15th day of each month (or, if such payment date is not a Business Day, the next succeeding Business Day, with the same force and effect as if paid on such distribution payment date, and no interest or additional distributions or other sums shall accrue on the amount so payable from such distribution payment date to such next succeeding Business Day). Distributions of Preferred Return shall be payable in arrears to holders of record as they appear on the records of the Partnership at the close of business on the last Business Day of each month immediately preceding the applicable distribution payment date, which dates shall be the Partnership Record Dates for the Series M Preferred Partnership Units. Any distribution of Preferred Return payable on the Series M Preferred Partnership Units for any distribution period (as defined below) will be computed on the basis of twelve 30-day months and a 360-day year. Except for distributions in liquidation or redemption as provided in Sections D and E, respectively, holders of Series M Preferred Partnership Units will not be entitled to receive any distributions in excess of full cumulative Preferred Returns accrued on the Series M Preferred Partnership Units at the distribution rate specified in this paragraph. No interest will be paid in respect of any distribution payment or payments on the Series M Preferred Partnership Units that may be in arrears.
(ii) Distributions of Preferred Return on each Series M Preferred Partnership Unit shall be cumulative from (and including) the first day of the distribution period during which such Series M Preferred Partnership Unit was originally issued, whether or not in any distribution period or periods (x) such distributions shall be authorized by the General Partner, (y) there shall be funds legally available for the payment of such distributions or (z) any agreement prohibits the Partnership’s payment of such distributions. As used herein, “distribution period” shall mean the respective periods commencing on, and including, the first day of each month of each year and ending on, and including, the day preceding the first day of the next succeeding distribution period (other than the distribution period during which any Series M Preferred Partnership Units shall be redeemed or otherwise acquired by the Partnership, which shall end on, and include, the day preceding the redemption or acquisition date with respect to the Series M Preferred Partnership Units being redeemed or acquired).
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(iii) When distributions of Preferred Return are not paid in full upon the Series M Preferred Partnership Units or any other series of Parity Units, or a sum sufficient for such payment is not set apart, all distributions of Preferred Return authorized by the General Partner upon the Series M Preferred Partnership Units and any other series of Parity Units shall be authorized by the General Partner ratably in proportion to the respective amounts of such distributions accumulated, accrued and unpaid on the Series M Preferred Partnership Units and accumulated, accrued and unpaid on such Parity Units. Except as set forth in the preceding sentence, unless distributions on the Series M Preferred Partnership Units equal to the full amount of accumulated, accrued and unpaid distributions of Preferred Return have been or contemporaneously are authorized by the General Partner and paid, or authorized by the General Partner and a sum sufficient for the payment thereof set apart for such payment for all past distribution periods, no distributions (other than distributions paid in Junior Units or options, warrants or rights to subscribe for or purchase Junior Units) shall be authorized by the General Partner or paid or set aside for payment by the Partnership with respect to any class or series of Parity Units. Unless distributions of Preferred Return on the Series M Preferred Partnership Units equal to the full amount of accumulated, accrued and unpaid distributions have been or contemporaneously are authorized by the General Partner and paid, or authorized by the General Partner and a sum sufficient for the payment thereof set apart for such payment for all past distribution periods, no distributions (other than distributions paid in Junior Units or options, warrants or rights to subscribe for or purchase Junior Units) shall be authorized by the General Partner or paid or set apart for payment by the Partnership with respect to any Junior Units, nor shall any Junior Units or Parity Units be redeemed, purchased or otherwise acquired for any consideration, or any monies be paid to or made available for a sinking fund for the redemption of any Junior Units or Parity Units (except by conversion or exchange for Junior Units, or options, warrants or rights to subscribe for or purchase Junior Units), nor shall any other cash or property be paid or distributed to or for the benefit of holders of Junior Units or Parity Units. Notwithstanding the foregoing, the General Partner shall not be prohibited from (i) authorizing or paying or setting apart for payment any Preferred Return or distribution on any Junior Units or Parity Units or (ii) redeeming, purchasing or otherwise acquiring any Junior Units or Parity Units, in each case, if such authorization, payment, redemption, purchase or other acquisition is necessary to maintain the Company’s qualification as a REIT.
(iv) No distribution of Preferred Return on the Series M Preferred Partnership Units shall be authorized by the General Partner or paid or set apart for payment at such time as the terms and provisions of any agreement of the Partnership, including any agreement of the Partnership relating to the Partnership’s 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 if such authorization, payment or setting apart for payment shall be restricted or prohibited by law.
(v) In determining whether a distribution (other than upon voluntary or involuntary liquidation, dissolution or winding up of the Partnership) of Preferred Return or in redemption or otherwise, is permitted, amounts that would be needed, if the Partnership were to be dissolved at the time of the distribution, to satisfy the liquidation preference of the Series M Preferred Partnership Units (as provided in Section D below) will not be added to the Partnership’s total liabilities.
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(d) Liquidation Preference.
(i) Upon any voluntary or involuntary liquidation, dissolution or winding up of the Partnership, before any distribution or payment shall be made to or set apart for the holders of any Junior Units, Braemar OP Limited Partner LLC, in its capacity as holder of the Series M Preferred Partnership Units, shall be entitled to receive a liquidation preference distribution equal to the Stated Value per Series M Preferred Partnership Unit, plus an amount equal to all accumulated, accrued and unpaid Preferred Return to, but not including, the date of final distribution, but Braemar OP Limited Partner LLC shall not be entitled to any further payment with respect thereto. If upon any liquidation, dissolution or winding up of the Partnership, its assets, or proceeds thereof, distributable among Braemar OP Limited Partner LLC, in its capacity as the holder of the Series M Preferred Partnership Units, shall be insufficient to pay in full the above described preferential distribution and liquidating distributions on any other series of Parity Units, then such assets, or the proceeds thereof, shall be distributed among Braemar OP Limited Partner LLC, in its capacity as the holder of the Series M Preferred Partnership Units, and the holders of any such other Parity Units ratably in the same proportion as the respective amounts that would be payable on such Series M Preferred Partnership Units and any such other Parity Units if all amounts payable thereon were paid in full.
(ii) Upon any liquidation, dissolution or winding up of the affairs of the Partnership, after payment of the full amount of liquidating distributions have been made to Breamar OP Limited Partner LLC, in its capacity as the holder of the Series M Preferred Partnership Units, holders of the Series M Preferred Partnership Units shall have no right or claim to any of the remaining assets of the Partnership.
(iii) None of a consolidation or merger of the Partnership with or into any other corporation, trust or other entity, a consolidation or merger of any other corporation, trust or other entity with or into the Partnership, a statutory unit exchange by the Partnership or a sale, lease, transfer or conveyance of any or all of the Partnership’s assets or business shall be deemed to constitute a liquidation, dissolution or winding up of the affairs of the Partnership.
(e) Redemption. In connection with the cash redemption by the Company of any shares of Series M Preferred Stock in accordance with the provisions of the Series M Articles Supplementary, the Partnership shall provide cash to Braemar OP Limited Partner LLC for such purpose which shall be equal to the applicable redemption price (as set forth in the Series M Articles Supplementary), plus all distributions of Preferred Return accumulated and unpaid to, but not including, the applicable redemption date (as set forth in the Series M Articles Supplementary), and one Series M Preferred Partnership Unit shall be concurrently redeemed with respect to each share of Series M Preferred Stock so redeemed by the Company. In connection with the redemption by the Company of any shares of Series M Preferred Stock for shares of REIT Common Shares in accordance with the provisions of the Series M Articles Supplementary, the Partnership shall convert Series M Preferred Partnership Units into Common Partnership Units and issue such Common Partnership Units to Braemar OP Limited Partner LLC. The number of Common Partnership Units into which the Series M Preferred Partnership Units are convertible shall be equal to the number of REIT Common Shares into which the Series M Preferred Stock is then being redeemed, as set forth in the Series M Articles Supplementary. From and after the applicable redemption date, the Series M Preferred Partnership Units so redeemed shall no longer be outstanding and all rights hereunder, to distributions or otherwise, with respect to such Series M Preferred Partnership Units shall cease.
(f) Voting Rights. Except as required by applicable law, the holder of the Series M Preferred Partnership Units, as such, shall have no voting rights.
(g) Conversion. In connection with the conversion by the Company of any shares of Series M Preferred Stock into shares of REIT Common Shares in accordance with the provisions of the Series M Articles Supplementary, the Partnership shall convert Series M Preferred Partnership Units into Common Partnership Units and issue such Common Partnership Units to Braemar OP Limited Partner LLC. The number of Common Partnership Units into which the Series M Preferred Partnership Units are convertible shall be equal to the number of REIT Common Shares into which the Series M Preferred Stock is then being converted, as set forth in the Series M Articles Supplementary. From and after the applicable Change of Control Conversion Date (as such term is defined in the Series M Articles Supplementary), the Series M Preferred Partnership Units so converted shall no longer be outstanding and all rights hereunder, to distributions or otherwise, with respect to such Series M Preferred Partnership Units shall cease.
(h) Restriction on Ownership. The Series M Preferred Partnership Units shall be owned and held solely by Braemar OP Limited Partner LLC.
(i) Allocations. Allocations of the Partnership’s items of income, gain, loss and deduction allocable with respect to Series M Preferred Partnership Units shall be allocated pro rata among holders of Series M Preferred Partnership Units in accordance with Article V of the Partnership Agreement.
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