exv4w5



 





EXHIBIT 4.5




SECOND AMENDMENT TO

SECOND AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP OF

CAPITAL AUTOMOTIVE L.P.




     This Second Amendment to the Second Amended and Restated Agreement of
Limited Partnership of Capital Automotive L.P. (“Second Amendment”) is entered
into this 11th day of December, 2003, by Capital Automotive REIT, a Maryland
real estate investment trust (the “General
Partner”), as general partner of
Capital Automotive L.P. (the “Partnership”).



     WHEREAS, the Second Amended and Restated Agreement of Limited Partnership
of the Partnership was executed on February 2, 1999, and a First Amendment
thereto was executed on July 19, 2001 (as amended, the
“Agreement”);



     WHEREAS, on December 11, 2003, the General Partner issued 3,950,000 shares
of 71⁄2% Series A Cumulative Redeemable Preferred Shares (the “Series A
Preferred Shares,” each a “Series A Preferred
Share”) at a gross offering price
of $25.00 per Series A Preferred Share and, in connection therewith, the
General Partner, pursuant to Section 4.02(a) of the Agreement, is contributing
the proceeds of such issuance to the Partnership and causing the Partnership to
issue to the General Partner preferred equity ownership interests in the
Partnership (“Series A Preferred Partnership Units”); and



     WHEREAS, the General Partner desires to amend the Agreement in order to
reflect the aforementioned issuance of the Series A Preferred Partnership
Units.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the undersigned
party, intending legally to be bound, hereby agrees as follows:



     1. The Agreement is hereby amended by the addition of a new exhibit,
entitled
EXHIBIT D, in the form attached hereto, which sets forth the
designations, allocations,
preferences and other special rights, powers and duties of the Series
A Preferred Partnership
Units and which is hereby attached to and made a part of the
Agreement.



     2. Pursuant to Section 4.02(a) of the Agreement, effective as of December
11, 2003,
the issuance date of the Series A Preferred Shares by the General Partner,
the Partnership hereby
issues 3,950,000 Series A Preferred Partnership Units to the General
Partner as provided in
EXHIBIT D. The Series A Preferred Partnership Units have been created and
are being issued in
conjunction with the General Partner’s issuance of the Series A Preferred
Shares, and as such,
the Series A Preferred Partnership 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 Series A Preferred Shares, and the
terms of this Amendment,
including without limitation the attached EXHIBIT D, shall be interpreted
in a fashion consistent
with this intent. In return for the issuance to the General Partner of the
Series A Preferred
Partnership Units, the General Partner has contributed to the Partnership
the funds raised through
its issuance of the Series A Preferred 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).




     3. In order to reflect the issuance of the Series A Preferred
Partnership Units, Schedule A to the Agreement is hereby amended by adding to
the end of such Schedule A the following table:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Series A	 	 	 	 
	 	 	Preferred	 	Capital	 	Issuance
	Name
	 	Partnership Units
	 	Contribution
	 	Date

	Capital Automotive
REIT
	 	 	3,950,000	 	 	$	98,750,000	 	 	 	12/11/2003	 







     4. The foregoing recitals are incorporated in and are part of
this Second
Amendment.



     5. Except as specifically defined herein, all capitalized terms shall have
the respective meanings provided in the Agreement. This Second Amendment has
been authorized
by the General Partner pursuant to Article 11 of the Agreement and does
not require execution
by the Limited Partners. Except as herein amended, the Agreement is hereby
ratified, confirmed,
and reaffirmed for all purposes and in all respects.



[SIGNATURE PAGE FOLLOWS]




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     IN WITNESS WHEREOF, the General Partner has executed this Second Amendment
as of the day and year first above written.


	 	 	 	 	 
	 	GENERAL PARTNER



CAPITAL AUTOMOTIVE REIT,
 a
Maryland real estate investment 

trust

 	 
	 	By:  	/s/ Thomas D. Eckert
 	 
	 	 	Thomas D. Eckert 	 
	 	 	President and

Chief Executive Officer 	 




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EXHIBIT D




DESIGNATION OF THE

SERIES A PREFERRED PARTNERSHIP UNITS

OF CAPITAL AUTOMOTIVE L.P.





     1. Number of Units and Designation.



     A class of ownership interests in the Partnership entitled “Series A
Preferred Partnership Units” is hereby designated and the number of Series A
Preferred Partnership Units constituting such class shall be 4,025,000.



     2. Definitions.



     For purposes of the Series A Preferred Partnership Units, the following
terms shall have the meanings indicated in this Section 2, and capitalized
terms used and not otherwise defined herein shall have the meanings assigned
thereto in the Agreement:



     “Distribution Payment Date” means any date on which cash dividends are
paid on all outstanding shares of the Series A Preferred Shares.



     “Liquidation Preference” has the meaning set forth in Section 4 of this
EXHIBIT D.



     “Series A Preferred Partnership Units” means the preferred equity
ownership interests in the Partnership issued to the General Partner by the
Partnership in connection with the issuance by the General Partner of the
Series A Preferred Shares, having the designations, preferences and rights set
forth in this EXHIBIT D.



     “Series A
Preferred Shares” means the 71⁄2% Series A Cumulative Redeemable
Preferred Shares issued by the General Partner.



     3. Distributions.



     Notwithstanding anything to the contrary contained in Section 5.02 of the
Agreement, on each Distribution Payment Date, the General Partner shall cause
the Partnership to make a cash distribution to the General Partner with respect
to the Series A Preferred Partnership Units in an amount equal to the amount
that is required to be distributed by the General Partner on that date to the
holders of Series A Preferred Shares. The Series A Preferred Partnership Units
shall not be entitled to any distributions, whether payable in cash, property
or stock, except as provided herein.



     4. Liquidation Preference.



     In the event of any liquidation, dissolution or winding up of the
Partnership, whether voluntary or involuntary, before any payment or
distribution of the Partnership (whether capital, surplus or otherwise) shall
be made under Section 5.06(a) to any classes of ownership interest in the
Partnership that are junior in priority to the Series A Preferred Partnership
Units, the holders of the Series A Preferred Partnership Units shall be
entitled to a preference (the “Liquidation



 









 




Preference”) equal to the sum of (i) $25.00 per Series A Preferred Partnership
Unit, plus (ii) an amount per Series A Preferred Partnership Unit equal to any
accrued and unpaid dividends on one Series A Preferred Share to the date those
dividends are paid to each Series A Preferred Share. Until the Liquidation
Preference with respect to the Series A Preferred Partnership Units has been
paid in full, no payment shall be made under Section 5.06(a) with respect to
any classes of ownership interest in the Partnership that are junior in
priority to the Series A Preferred Partnership Units. If, upon any liquidation,
dissolution or winding up of the Partnership, the assets of the Partnership, or
proceeds thereof, distributable with respect to the Series A Preferred
Partnership Units shall be insufficient to pay in full the Liquidation
Preference and the corresponding amounts payable on any ownership interests in
the Partnership that are on a parity with the Series A Preferred Partnership
Units as to liquidation rights, then such assets, or the proceeds thereof,
shall be distributed among the holders of Series A Preferred Partnership Units
and any such ownership interests in the Partnership on the same parity as to
liquidation rights as the Series A Preferred Partnership Units, ratably in
proportion to the full, respective, preferential liquidating distributions to
which they would otherwise be entitled. After payment in full of the
Liquidation Preference, the holders of Series A Preferred Partnership Units
shall have no right or claim to any of the remaining assets of the Partnership.
For the purposes of this Section 4, (i) a consolidation or merger of the
Partnership with one or more partnerships, or (ii) a sale or transfer of all or
substantially all of the Partnership’s assets shall not be deemed to be a
liquidation, dissolution or winding up, voluntary or involuntary, of the
Partnership.




     5. Redemption.



     Series A Preferred Partnership Units shall be redeemable by the
Partnership as follows:



          (a) At any time that the General Partner exercises its right to redeem all
or any of the Series A Preferred Shares, the General Partner shall cause the
Partnership to concurrently
redeem an equal number of Series A Preferred Partnership Units, at a
redemption price per Series
A Preferred Partnership Unit payable in cash and equal to the same price
paid by the General
Partner to redeem each Series A Preferred Share (i.e., a redemption price
of $25.00 per Series A
Preferred Share, plus any accrued and unpaid dividends thereon). No
interest shall accrue for the
benefit of the Series A Preferred Partnership Units to be redeemed on any
cash set apart by the
Partnership.



          (b) If the Partnership shall redeem Series A Preferred Partnership Units
pursuant to paragraph (a) of this Section 5, from and after the redemption
date (unless the
Partnership shall fail to make available the amount of cash necessary to
effect such redemption),
(i) except for payment of the redemption price, the Partnership shall not
make any further
distributions on the Series A Preferred Partnership Units so called for
redemption, (ii) said Series
A Preferred Partnership Units shall no longer be deemed to be outstanding,
and (iii) all rights of
the holders thereof as holders of Series A Preferred Partnership Units of
the Partnership shall
cease except the rights to receive the cash payable upon such redemption,
without interest
thereon.



          (c) If fewer than all the outstanding Series A Preferred Partnership Units
are
to be redeemed, the Series A Preferred Partnership Units to be redeemed
shall be determined pro
rata, by lot or in such other manner determined by the General Partner in
its discretion. Upon



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any such redemption, the General Partner shall amend Schedule A to
the Agreement as appropriate to reflect such redemption.




     6. Status of Reacquired Units.



     All Series A Preferred Partnership Units which shall have been issued and
reacquired in any manner by the Partnership shall be deemed cancelled.



     7. Ranking.



     The Series A Preferred Partnership Units shall be deemed to rank:



          (a) senior to all existing Partnership Interests;



          (b) senior to any class or series of ownership interests in the
Partnership, if
such class or series is hereafter issued in connection with the future
authorization or designation
by the General Partner of equity securities, the terms of which
specifically provide that such
equity securities rank junior to the Series A Preferred Shares as to the
payment of distributions or
as to distributions of assets upon liquidation, dissolution or winding up;



          (c) on a parity with any class or series of ownership interests in the
Partnership, if such class or series is hereafter issued in connection with the
future authorization or designation by the General Partner of equity
securities, the terms of which specifically provide that such equity securities
rank on a parity with the Series A Preferred Shares as to the payment of
distributions or as to distributions of assets upon liquidation, dissolution or
winding up; and



          (d) junior to any class or series of ownership interests in the
Partnership, if
such class or series is hereafter issued in connection with the future
authorization or designation
by the General Partner of equity securities, the terms of which
specifically provide that such
class or series ranks senior to the Series A Preferred Shares as to the
payment of distributions or
as to distributions of assets upon liquidation, dissolution or winding up.



     The term “ownership interests in the Partnership” does not include
convertible debt securities issued in the future by the Partnership, all series
of which shall rank senior to the Series A Preferred Partnership Units prior to
the conversion of such debt securities. All Series A Preferred Partnership
Units shall rank equally with one another and shall be identical in all
respects.



     8. Special Allocations.



     Notwithstanding Section 5.01(a) of the Agreement (but subject to Sections
5.01(b) and (c) of the Agreement), gross income of the Partnership shall be
allocated first to the General Partner for each fiscal year until the
cumulative amount allocated under this Section 8 to the General Partner for the
current year and all prior years is equal to the cumulative amount for the
current year and all prior years of the sum of (A) the distributions made to
the General Partner under Section 3 of this EXHIBIT D, (B) the portion of the
distributions made to the General Partner under Section 5 of this EXHIBIT D (if
any) that exceeds $25.00 per Series A Preferred Partnership Unit, and (C) for
the year in which a distribution is to be made to the General Partner



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under Section 4 of this EXHIBIT D, the portion of the Liquidation Preference
payable to the General Partner under Section 4 (if any) that exceeds $25.00 per
Series A Preferred Partnership Unit. Any remaining Profit or Loss shall be
allocated as set forth in Section 5.01 (a) of the Agreement.




     9. Restrictions on Ownership.



     The Series A Preferred Partnership Units shall be owned and held solely by
the General Partner.



     10. Conversion.



     The Series A Preferred Partnership Units shall not be convertible into or
exchangeable for any other property or securities of the Partnership or any
other entity.



     11. General.



          (a) The General Partner shall have a zero percent Partnership Interest
with
respect to the Series A Partnership Units and shall have no voting rights
with respect to the
Series A Preferred Partnership Units other than the right to vote on an
amendment to the
Agreement if it would alter the distribution, redemption or liquidation
rights of the Series A
Preferred Partnership Units or any other rights or preferences of the
Series A Preferred
Partnership Units as set forth in this EXHIBIT D.



          (b) The Series A Preferred Partnership Units shall not be entitled to the
benefits of any retirement or sinking fund.



          (c) The Series A Preferred Partnership Units shall not have any
preferences or
relative, participating, optional or other special rights, or voting
powers, restrictions, limitations
as to distributions, qualifications or terms or conditions of redemption
other than as expressly set
forth in this EXHIBIT D.



          (d) No holder of Series A Preferred Partnership Units shall have any
preemptive or preferential right to subscribe for, or to purchase, any
additional ownership
interests in the Partnership of any class or series, or any other security
of the Partnership which
the Partnership may issue or sell.



          (e) The ownership of Series A Preferred Partnership Units may (but need
not, in the sole and absolute discretion of the General Partner) be evidenced
by one or more
certificates. The General Partner shall amend Schedule A to the Agreement
from time to time to
the extent necessary to reflect accurately the issuance of, and subsequent
redemption, or any
other event having an effect on the ownership of, Series A Preferred
Partnership Units.



          (f) The rights of the General Partner, in its capacity as holder of the
Series A
Preferred Partnership Units, are in addition to and not in limitation of
any other rights or
authority of the General Partner in any other capacity under the Agreement
or applicable law. In
addition, nothing contained herein shall be deemed to limit or otherwise
restrict the authority of



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the General Partner under the Agreement, other than solely in its capacity as
holder of the Series A Preferred Partnership Units.




          (g) If any preferences or other rights, restrictions, distributions,
qualifications, allocations or terms or conditions of redemption of the Series
A Preferred Partnership Units set forth in this EXHIBIT D are invalid, unlawful
or incapable of being enforced by reason of any rule of law or public policy,
all other preferences or other rights, restrictions, distributions,
qualifications, allocations or terms or conditions of redemption of the Series
A Preferred Partnership Units set forth in this EXHIBIT D which can be given
effect without the invalid, unlawful or unenforceable provision thereof shall
remain in full force and effect and no preferences or other rights,
restrictions, distributions, qualifications, allocations or terms or conditions
of redemption of the Series A Preferred Partnership Units herein set forth
shall be deemed dependent on any other provision thereof unless so expressed
therein.



          (h) The headings of the various subdivisions of this EXHIBIT D
are for convenience only and shall not affect the interpretation of any of
the provisions hereof.




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