Description of Common Units Representing Limited Partnership Interests of Kilroy Realty, L.P
EX-4.VI2 3 exhibit4vi2.htm EXHIBIT 4.VI2 Exhibit
DESCRIPTION OF COMMON UNITS REPRESENTING LIMITED PARTNERSHIP INTERESTS OF KILROY REALTY, L.P.
The following is a summary of some of the terms and provisions of the common units representing limited partnership interests of Kilroy Realty, L.P. (“common units”). The following description does not purport to be complete and is subject to, and qualified in its entirety by reference to, the provisions of the Seventh Amended and Restated Agreement of Limited Partnership (the “partnership agreement”), a copy of which has been filed as an exhibit to the Annual Report on Form 10-K to which this “Description of Common Units Representing Limited Partnership Interests Of Kilroy Realty, L.P.” is an exhibit. As used in this “Description of Common Units Representing Limited Partnership Interests Of Kilroy Realty, L.P.,” references to the “operating partnership” refer to Kilroy Realty, L.P., references to the “Company,” “we,” “our” or “us” refer solely to Kilroy Realty Corporation and not to any of its subsidiaries, unless otherwise expressly stated or the context otherwise requires.
Common Limited Partnership Units
The partnership agreement provides that, subject to the distribution preferences of any preferred units that may be issued in the future, common units are entitled to receive quarterly distributions of available cash on a pro rata basis in accordance with their respective percentage interests. As of December 31, 2019, 2,023,287 issued and outstanding common units were held by the operating partnership’s common limited partners, which consisted of certain non-affiliated investors and certain directors and officers of the Company.
In addition to the rights and provisions described in more detail below, the common units:
have limited voting rights;
do not have any conversion rights;
do not have any sinking fund rights;
do not generally have any appraisal rights;
do not have any preemptive rights to subscribe for any of the operating partnership's securities; and
are subject to restrictions on ownership and transfer.
The Company, as general partner of the operating partnership, does not have a classified board of directors.
Common limited partners have the right to require the operating partnership to redeem part or all of their common units for cash based upon the fair market value of an equivalent number of shares of Company common stock at the time of the redemption. Alternatively, the Company may elect to acquire those common units tendered for redemption in exchange for shares of Company common stock. The Company’s acquisition will be on a one-for-one basis, subject to adjustment in the event of stock splits, stock dividends, issuance of some rights, some extraordinary distributions and similar events. However, even if the Company elects not to acquire tendered common units in exchange for shares of common stock, holders of common units that are corporations or limited liability companies may require that the Company issue common stock in exchange for their common units, subject to applicable ownership limits or any other limit as provided in the Company’s charter or as otherwise determined by the board of directors, as applicable. The Company presently anticipates that the Company will elect to issue shares of common stock in exchange for common units in connection with each redemption request, rather than having the operating partnership redeem the common units for cash. With each redemption or exchange, the Company increases its percentage ownership interest in the operating partnership. Common limited partners may exercise this redemption right from time to time, in whole or in part, except when, as a consequence of shares of common stock being issued, any person’s actual or constructive stock ownership would exceed the ownership limits, or any other limit as provided in the Company’s charter or as otherwise determined by the board of directors.
Common Limited Partner Approval Rights
The partnership agreement provides that if the limited partners own at least 5% of the common units representing common partnership interests in the operating partnership, including those common units held by the Company as general partner, the Company will not, on behalf of the operating partnership and without the prior consent of the holders of more than 50% of the common units representing limited partnership interests in the operating partnership, dissolve the operating partnership, unless the dissolution or sale is incident to a merger or a sale of substantially all of the Company’s assets.
Common and Preferred Limited Partnership Interests
The operating partnership may issue both preferred limited partnership interests and common limited partnership interests. As of December 31, 2019, the operating partnership did not have any preferred units issued and outstanding. In this discussion, we refer collectively to any preferred units the operating partnership may issue in the future as “preferred units” and to the preferred units and the common units as the “units.”
Transferability of Partnership Interests
Generally, the Company may not voluntarily withdraw from or transfer or assign its interest in the operating partnership without the consent of the holders of at least 60% of the common units including the Company’s interest. The limited partners may, without the consent of the general partner, transfer, assign, sell, encumber or otherwise dispose of their units in the operating partnership to family members, affiliates (as defined under federal securities laws) and charitable organizations and as collateral in connection with certain lending transactions, and, with the consent of the general partner, may also transfer, assign or sell their units to accredited investors. In each case, the transferee must agree to assume the transferor’s obligations under the partnership agreement. This transfer is also subject to the Company’s right of first refusal to purchase the limited partner’s units for our benefit.
In addition, without the Company’s consent, limited partners may not transfer their units:
to any person who lacks the legal capacity to own the units;
in violation of applicable law;
where the transfer is for only a portion of the rights represented by the units, such as the partner’s capital account or right to distributions;
if we believe the transfer would cause the termination of the operating partnership or would cause it to no longer be classified as a partnership for federal or state income tax purposes;
if the transfer would cause the operating partnership to become a party-in-interest within the meaning of the Employee Retirement Income Security Act of 1974, or ERISA, or would cause its assets to constitute assets of an employee benefit plan under applicable regulations;
if the transfer would require registration under applicable federal or state securities laws;
if the transfer could cause the operating partnership to become a “publicly traded partnership” under applicable U.S. Treasury regulations;
if the transfer could cause the operating partnership to be regulated under the Investment Company Act of 1940 or ERISA; or
if the transfer would adversely affect the Company’s ability to maintain its qualification as a REIT.
The Company may not engage in any “termination transaction” without the approval of at least 60% of the common units in the operating partnership, including the Company’s general partnership interest in the operating partnership. Termination transactions consist of:
a consolidation or other combination with or into another entity;
a sale of all or substantially all of the Company's assets; or
a reclassification, recapitalization or change of the Company's outstanding equity interests.
In connection with a termination transaction, all common limited partners must either receive, or have the right to elect to receive, for each common unit an amount of cash, securities or other property equal to the product of:
the number of shares of Company common stock into which each common unit is then exchangeable; and
the greatest amount of cash, securities or other property paid to the holder of one share of Company common stock in consideration for one share of common stock pursuant to the termination transaction.
If, in connection with a termination transaction, a purchase, tender or exchange offer is made to holders of Company common stock, and the common stockholders accept the purchase, tender or exchange offer, each holder of common units must either receive, or must have the right to elect to receive, the greatest amount of cash, securities or other property which that holder would have received if immediately prior to the purchase, tender or exchange offer it had exercised its right to redeem common units, received shares of Company common stock in exchange for its common units, and accepted the purchase, tender or exchange offer.
The Company also may merge or otherwise combine its assets with another entity with the approval of at least 60% of the common units if:
substantially all of the assets directly or indirectly owned by the surviving entity (other than partnership units held by the Company) are owned directly or indirectly by the operating partnership or another limited partnership or limited liability company which is the surviving entity (any such surviving limited partnership or limited liability company is called the “surviving partnership”) of a merger, consolidation or combination of assets with the operating partnership;
the common limited partners own a percentage interest of the surviving partnership based on the relative fair market value of the net assets of the operating partnership and the other net assets of the surviving partnership immediately prior to the consummation of this transaction;
the rights, preferences and privileges of the common limited partners in the surviving partnership are at least as favorable as those in effect immediately prior to the consummation of the transaction and as those applicable to any other limited partners or non-managing members of the surviving partnership; and
the common limited partners have the right to exchange their interests in the surviving partnership for either:
the consideration available to the common limited partners pursuant to the preceding paragraph; or
if the ultimate controlling person of the surviving partnership has publicly traded common equity securities, shares of those common equity securities, at an exchange ratio based on the relative fair market value of those securities and the Company’s common stock.
The board of directors of the Company, in the Company’s capacity as general partner, will reasonably determine relative fair market values and rights, preferences and privileges of the limited partners as of the time of the termination transaction. These values may not be less favorable to the limited partners than the relative values reflected in the terms of the termination transaction.
The Company must use commercially reasonable efforts to structure termination transactions to avoid causing the common limited partners to recognize gain for federal income tax purposes by virtue of the occurrence of or their participation in the termination transaction. In addition, the operating partnership must use commercially reasonable efforts to cooperate with the common limited partners to minimize any taxes payable in connection with any repayment, refinancing, replacement or restructuring of indebtedness, or any sale, exchange or other disposition of its assets.
Issuance of Additional Units Representing Partnership Interests
As sole general partner of the operating partnership, the Company has the ability to cause the operating partnership to issue additional units representing general and limited partnership interests. These units may include units representing preferred limited partnership interests.
Capital Contributions by the Company to the Operating Partnership
The Company may borrow additional funds in excess of the funds available from borrowings or capital contributions from a financial institution or other lender or through public or private debt offerings. The Company may then lend these funds to the operating partnership on the same terms and conditions that applied to the Company. In some cases, the Company may instead contribute these funds as an additional capital contribution to the operating partnership and increase its interest in the operating partnership and decrease the interests of the limited partners.
Tax Matters that Affect the Operating Partnership
The Company has the authority under the partnership agreement to make tax elections under the Code on the operating partnership’s behalf.
Allocations of Net Income and Net Losses to Partners
The net income of the operating partnership will generally be allocated:
first, to the extent holders of units have been allocated net losses, net income shall be allocated to such holders to offset these losses, in an order of priority which is the reverse of the priority of the allocation of these losses;
next, pro rata among holders of any preferred units ranking on a parity as to distributions in an amount equal to a specified return on the stated value of such other series of preferred units as set forth in the terms of such preferred units, which are referred to as the “preferred returns”; and
the remaining net income, if any, will be allocated to the Company and to the common limited partners in accordance with their respective percentage interests.
Net losses of the operating partnership will generally be allocated:
first, to the Company and the common limited partners in accordance with their respective percentage interests, but only to the extent the allocation does not cause a partner to have a negative adjusted capital account (ignoring any limited partner capital contribution obligations);
next, pro rata among the holders of any preferred units that the operating partnership may issue in the future, but only to the extent that the allocation does not cause a partner to have a negative adjusted capital account (ignoring any limited partner capital contribution obligations);
next, to partners pro rata in proportion to their positive adjusted capital accounts, until such capital accounts are reduced to zero; and
the remainder, if any, will be allocated to the Company.
Notwithstanding the foregoing, the partnership agreement generally provides that the operating partnership’s adjusted net income (as defined in the partnership agreement) will first be allocated to the holders of any preferred units that the operating partnership may issue in the future to the extent of their preferred returns, with the remaining items of net income or net loss allocated according to the provisions described above. The allocations described above are subject to compliance with the provisions of Sections 704(b) and 704(c) of the Code and the associated Treasury regulations.
Operations and Management of the Operating Partnership
The operating partnership must be operated in a manner that will enable the Company to maintain its qualification as a REIT and avoid any federal income tax liability. The partnership agreement provides that the Company will determine from time to time, but not less frequently than quarterly, the net operating cash revenues of
the operating partnership, as well as net sales and refinancing proceeds, pro rata in accordance with the partners respective percentage interests, subject to the distribution preferences with respect to any preferred units that the operating partnership may issue in the future. The partnership agreement further provides that the operating partnership will assume and pay when due, or reimburse the Company for payment of, all expenses that the Company incurs relating to the ownership and operation of, or for the benefit of, the operating partnership and all costs and expenses relating to the Company’s operations.
Term of the Partnership Agreement
The operating partnership will continue in full force and effect until December 31, 2095, or until sooner dissolved in accordance with the terms of the partnership agreement.