Exhibit 3.1
TWENTY-EIGHTH
AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
VORNADO REALTY L.P.
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Dated as of December 30, 2004
----------------------------------------------
THIS TWENTY-EIGHTH AMENDMENT TO THE SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF VORNADO
REALTY L.P. (this "Amendment"),
dated as of December 30, 2004, is hereby
adopted by Vornado Realty Trust, a
Maryland real estate investment trust
(defined in the Agreement, hereinafter
defined, as the "General Partner"), as the
general partner of Vornado Realty
L.P., a Delaware limited partnership (the
"Partnership"). For ease of reference,
capitalized terms used herein and not
otherwise defined have the meanings
assigned to them in the Second Amended and
Restated Agreement of Limited
Partnership of Vornado Realty L.P. dated as
of October 20, 1997, as amended by
the Amendment to Second Amended and
Restated Agreement of Limited Partnership of
Vornado Realty L.P., dated as of December
16, 1997, and further amended by the
Second Amendment to Second Amended and
Restated Agreement of Limited Partnership
of Vornado Realty L.P., dated as of April
1, 1998, the Third Amendment to Second
Amended and Restated Agreement of Limited
Partnership of Vornado Realty L.P.,
dated as of November 12, 1998, the Fourth
Amendment to Second Amended and
Restated Agreement of Limited Partnership
of Vornado Realty L.P., dated as of
November 30, 1998, the Fifth Amendment to
Second Amended and Restated Agreement
of Limited Partnership of Vornado Realty
L.P., dated as of March 3, 1999, the
Sixth Amendment to Second Amended and
Restated Agreement of Limited Partnership
of Vornado Realty L.P., dated as of March
17, 1999, the Seventh Amendment to
Second Amended and Restated Agreement of
Limited Partnership of Vornado Realty
L.P., dated as of May 20, 1999, the Eighth
Amendment to Second Amended and
Restated Agreement of Limited Partnership
of Vornado Realty L.P., dated as of
May 27, 1999, the Ninth Amendment to Second
Amended and Restated Agreement of
Limited Partnership of Vornado Realty L.P.,
dated
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as of September 3, 1999, the Tenth
Amendment to Second Amended and Restated
Agreement of Limited Partnership of Vornado
Realty L.P., dated as of September
3, 1999, the Eleventh Amendment to Second
Amended and Restated Agreement of
Limited Partnership of Vornado Realty L.P.,
dated as of November 24, 1999, the
Twelfth Amendment to Second Amended and
Restated Agreement of Limited
Partnership of Vornado Realty L.P., dated
as of May 1, 2000, the Thirteenth
Amendment to Second Amended and Restated
Agreement of Limited Partnership of
Vornado Realty L.P., dated as of May 25,
2000, the Fourteenth Amendment to
Second Amended and Restated Agreement of
Limited Partnership of Vornado Realty
L.P., dated as of December 8, 2000, the
Fifteenth Amendment to Second Amended
and Restated Agreement of Limited
Partnership of Vornado Realty L.P., dated as
of December 15, 2000, the Sixteenth
Amendment to Second Amended and Restated
Agreement of Limited Partnership of Vornado
Realty L.P., dated as of July 25,
2001, the Seventeenth Amendment to Second
Amended and Restated Agreement of
Limited Partnership of Vornado Realty L.P.,
dated as of September 21, 2001, the
Eighteenth Amendment to Second Amended and
Restated Agreement of Limited
Partnership of Vornado Realty L.P., dated
as of January 1, 2002, the Nineteenth
Amendment to Second Amended and Restated
Agreement of Limited Partnership of
Vornado Realty L.P., dated as of July 1,
2002, the Twentieth Amendment to Second
Amended and Restated Agreement of Limited
Partnership of Vornado Realty L.P.,
dated as of April 9, 2003, the Twenty-First
Amendment to Second Amended and
Restated Agreement of Limited Partnership
of Vornado Realty L.P., dated as of
July 31, 2003, the Twenty-Second Amendment
to Second Amended and Restated
Agreement of Limited Partnership of Vornado
Realty L.P., dated as of November
17, 2003, the Twenty-Third Amendment to
Second Amended and Restated Agreement of
Limited Partnership of Vornado Realty L.P.,
dated as of May 27, 2004, the
Twenty-Fourth Amendment to Second Amended
and Restated Agreement of Limited
Partnership of Vornado Realty L.P., dated
as of August 17, 2004, the
Twenty-Fifth Amendment to Second Amended
and Restated Agreement of Limited
Partnership of Vornado Realty L.P., dated
as of November 17, 2004, the
Twenty-Sixth Amendment to Second Amended
and Restated Agreement of Limited
Partnership of Vornado Realty L.P., dated
as of December 17, 2004 and the
Twenty-Seventh Amendment to Second Amended
and Restated Agreement of Limited
Partnership of Vornado Realty L.P., dated
as of December 20, 2004 (as so
amended, the "Agreement").
WHEREAS, the General Partner desires to establish and set forth
the
terms of a new series of Partnership
Interests designated as Series D-13
Preferred Units (the "Series D-13 Preferred
Units") and to amend the Agreement
to accomplish the same;
WHEREAS, as of the date hereof, the Partnership and the General
Partner
entered into a Private Placement Purchase
Agreement with East Side Subsidiary
LLC, a Delaware limited liability company
(the "Initial Series D-13 Purchaser"),
and Morris Bailey, in his capacity as
Manager of the Initial Series D-13
Purchaser, pursuant to which the
Partnership agreed to issue to the Initial
Series D-13 Purchaser Series D-13 Preferred
Units;
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WHEREAS, the General Partner has determined that it is in the
best
interest of the Partnership to amend the
Agreement to establish the Series D-13
Preferred Units and set forth the terms
thereof to reflect the issuance of the
above-referenced Series D-13 Preferred
Units;
WHEREAS, Section 14.1.B of the Agreement grants the General
Partner
power and authority to amend the Agreement
without the consent of any of the
Partnership's limited partners if the
amendment does not adversely affect or
eliminate any right granted to a limited
partner pursuant to any of the
provisions of the Agreement specified in
Section 14.1.C or Section 14.1.D of the
Agreement as requiring a particular minimum
vote;
WHEREAS, the General Partner has determined that the amendment
effected
hereby does not adversely affect or
eliminate any of the limited partner rights
specified in Section 14.1.C or Section
14.1.D of the Agreement; and
NOW, THEREFORE, the General Partner hereby amends the Agreement
as
follows:
1. Exhibit AD, attached hereto as Attachment 1, is hereby
incorporated
by reference into the Agreement and made a
part thereof.
2. Section 4.2 of the Agreement is hereby supplemented by adding
the
following paragraph to the end thereof:
"AD. Issuance of Series D-13 Preferred Units. From and after
the date hereof the Partnership shall be authorized to issue
Partnership Units of a new series, which Partnership Units are
hereby designated as
"Series D-13 Preferred Units". Series
D-13 Preferred Units shall have the terms set forth in Exhibit
AD attached hereto and made part hereof."
3. In making distributions pursuant to Section 5.1(B) of the
Agreement,
the General Partner of the Partnership
shall take into account the provisions of
Paragraph 2 of Exhibit AD to the Agreement,
including, but not limited to,
Paragraph 2.G(ii) thereof.
4. The Agreement is hereby supplemented by adding the following
paragraph at the end of Section 8.6
thereof:
Y. Series D-13 Preferred Unit Exception. Holders of Series
D-13 Preferred Units shall not be entitled to the Redemption
Right provided for in Section 8.6.A of this Agreement."
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5. Exhibit A of the Agreement is hereby deleted and is replaced in
its
entirety by new Exhibit A attached hereto
as Attachment 2.
6. Except as expressly amended hereby, the Agreement shall remain
in
full force and effect.
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IN WITNESS WHEREOF, the General Partner has executed this Amendment
as
of the date first written above.
VORNADO REALTY TRUST
By /s/ Joseph Macnow
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Name:
Joseph Macnow
Title: Executive Vice President
-
Finance and Administration
and Chief Financial Officer
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Attachment 1
EXHIBIT AD
DESIGNATION OF THE PREFERENCES, CONVERSION
AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS,
LIMITATIONS AS TO DISTRIBUTIONS, QUALIFICATIONS AND TERMS
AND CONDITIONS OF REDEMPTION
OF THE
SERIES D-13 PREFERRED UNITS
7.
Definitions.
In addition to those terms defined in the Agreement, the
following
definitions shall be for all purposes,
unless otherwise clearly indicated to the
contrary, applied to the terms used in the
Agreement and this Exhibit AD:
"Acquisition Agreement" shall have the meaning set forth in
Section
2.E(i)(d)(III) hereof.
"Annual Distribution Rate" shall have the meaning set forth in
Section
2.B(i) hereof.
"Common Shares" shall mean the common shares of beneficial interest
of
the General Partner, par value $.04 per
share.
"Distribution Payment Date" shall mean the first calendar day
of
January, April, July and October, in each
year, commencing on April 1, 2005;
provided, however, that if any Distribution
Payment Date falls on any day other
than a Unit Business Day, the distribution
payment due on such Distribution
Payment Date shall be paid on the first
Unit Business Day immediately following
such Distribution Payment Date.
"Distribution Periods" shall mean quarterly distribution
periods
commencing on January 1, April 1, July 1
and October 1 of each year and ending
on and including the day preceding the
first day of the next succeeding
Distribution Period (other than the initial
Distribution Period with respect to
each Series D-13 Preferred Unit, which
shall commence on the date on which such
Series D-13 Preferred Unit was issued by
the Partnership and end on and include
the day preceding the first day of the next
succeeding Distribution Period).
"Junior Units" shall have the meaning set forth in Paragraph
2.G(i)(c)
below.
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"Liquidation Preference" shall have the meaning set forth in
Section
2.C(i) hereof.
"New LLC" shall have the meaning set forth in Section
2.E(i)(d)(III)
hereof.
"Non-Recourse Debt" means indebtedness incurred by New LLC solely
to
acquire Redemption Property and that is
recourse solely to the Redemption
Property and by its terms is expressly
non-recourse to any of New LLC, the
Partnership or any affiliate of the
Partnership or any of their respective
properties or assets (other than the
Redemption Property).
"Redemption Date" shall have the meaning set forth in Section
2.D(iii)
hereof.
"Redemption Price" shall have the meaning set forth in Section
2.D(i)
hereof.
"Redemption Property" shall have the meaning set forth in
Section
2.E(i)(d)(I) hereof.
"Series D-13 Effective Date" shall be the sooner of: (y) December
30,
2006 or (z) the first Unit Business Day
following any period in which the
Partnership has failed to make full
distributions in respect of the Series D-13
Preferred Units for six (6) Distribution
Periods, whether or not consecutive.
"Series D-13 Notice of Redemption" shall have the meaning set forth
in
Section 2.E(i)(a) hereof.
"Series D-13 Preferred Unit" means a Partnership Unit issued by
the
Partnership having the preferences,
conversion and other rights, voting powers,
restrictions, limitations as to
distributions, qualifications and terms and
conditions of redemption as are set forth
in this Exhibit AD.
"Series D-13 Redeeming Partner" shall have the meaning set forth
in
Section 2.E(i)(a) hereof.
"Series D-13 Redemption Amount" shall have the meaning set forth
in
Section 2.E(i)(a) hereof.
"Series D-13 Redemption Right" shall have the meaning set forth
in
Section 2.E(i)(a) hereof.
"Series D-13 Specified Redemption Date" shall mean the sixtieth
Unit
Business Day after receipt by the General
Partner of a Series D-13 Notice of
Redemption in respect of the Series D-13
Units; provided, however, that if the
holder has not
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requested Redemption Property pursuant to
Section 2.E(d) hereof, the Series D-13
Specified Redemption Date shall mean the
tenth Unit Business Day after receipt
by the General Partner of a Series D-13
Notice of Redemption delivered in
respect of a redemption referred to in
Treas. Reg. 1.7704-1(e)(1)(vi).
"set apart for payment" shall be deemed to include, without any
action
other than the following, the recording by
the Partnership or the General
Partner on behalf of the Partnership in its
accounting ledgers of any accounting
or bookkeeping entry which indicates,
pursuant to a declaration of a
distribution by the General Partner, the
allocation of funds to be so paid on
any series or class of Partnership Units;
provided, however, that if any funds
for any class or series of Junior Units (as
defined below) or any class or
series of Partnership Units ranking on a
parity with the Series D-13 Preferred
Units as to the payment of distributions
are placed in a separate account of the
Partnership or delivered to a disbursing,
paying or other similar agent, then
"set apart for payment" with respect to the
Series D-13 Preferred Units shall
mean placing such funds in a separate
account or delivering such funds to a
disbursing, paying or other similar
agent.
"Third Party Redemption Date" shall have the meaning set forth
in
Section 2.D(ii) hereof.
"Unit
Business Day" shall mean any day other than a Saturday, Sunday
or
a day on which state or federally chartered
banking institutions in New York,
New York are not required to be open.
8.
Terms of the Series D-13 Preferred Units.
A. Number. As of the close of business on the date of the
amendment
pursuant to which this Exhibit AD was
adopted, the total number of Series D-13
Preferred Units issued and outstanding will
be 1,867,311. The Partnership may
issue additional Series D-13 Preferred
Units from time to time in accordance
with the terms of the Agreement and, in
connection with any such additional
issuance, the General Partner shall revise
Exhibit A to the Agreement to reflect
the total number of Series D-13 Preferred
Units then issued and outstanding.
B. Distributions. (i) The holders of the then outstanding Series
D-13
Preferred Units shall be entitled to
receive, when, as and if declared by the
General Partner, distributions payable in
cash at the rate per annum of $0.75
per Series D-13 Preferred Unit (the "Annual
Distribution Rate"). Such
distributions with respect to each Series
D-13 Preferred Unit shall be
cumulative from the date of issuance of
such Series D-13 Preferred Unit and
shall be payable quarterly, when, as and if
authorized and declared by the
General Partner, in arrears on Distribution
Payment Dates, commencing on the
first Distribution Payment Date.
Distributions are cumulative from the most
recent Distribution Payment Date to which
distributions have been paid; provided
that the amount per Series D-13 Preferred
Unit to be paid in respect of the
initial Distribution
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Period, or any other period shorter or
longer than a full Distribution Period,
shall be determined in accordance with
paragraph (ii) below. Accumulated and
unpaid distributions for any past
Distribution Periods may be declared and paid
at any time, without reference to any
regular Distribution Payment Date.
(ii) The amount of distribution per Series D-13 Preferred Unit
accruing
in each full Distribution Period shall be
computed by dividing the Annual
Distribution Rate by four. The amount of
distributions payable for the initial
Distribution Period, or any other period
shorter or longer than a full
Distribution Period, on the Series D-13
Preferred Units shall be computed on the
basis of twelve 30-day months and a 360-day
year. The holders of the then
outstanding Series D-13 Preferred Units
shall not be entitled to any
distributions, whether payable in cash,
property or securities, in excess of
cumulative distributions, as herein
provided, on the Series D-13 Preferred
Units. No interest, or sum of money in lieu
of interest, shall be payable in
respect of any distribution payment or
payments on the Series D-13 Preferred
Units that may be in arrears.
(iii) So long as any Series D-13 Preferred Units are outstanding,
no
distributions, except as described in the
immediately following sentence, shall
be declared or paid or set apart for
payment on any series or class or classes
of Parity Units (as defined below) for any
period unless full cumulative
distributions have been or
contemporaneously are declared and paid or declared
and a sum sufficient for the payment
thereof set apart for such payment on the
Series D-13 Preferred Units for all
Distribution Periods terminating on or prior
to the distribution payment date on such
class or series of Parity Units, except
in the case of distributions on the Series
B-2 Restricted Preferred Units to the
extent not paid due to a lack of funds in
the Nongovernmental Account. When
distributions are not paid in full or a sum
sufficient for such payment is not
set apart, as aforesaid, all distributions
declared upon Series D-13 Preferred
Units and all distributions declared upon
any other series or class or classes
of Parity Units shall be declared ratably
in proportion to the respective
amounts of distributions accumulated and
unpaid on the Series D-13 Preferred
Units and such Parity Units, except in the
case of distributions on the Series
B-2 Restricted Preferred Units to the
extent not paid due to a lack of funds in
the Nongovernmental Account.
(iv) So long as any Series D-13 Preferred Units are outstanding,
no
distributions (other than distributions
paid solely in Junior Units or options,
warrants or rights to subscribe for or
purchase Junior Units) shall be declared
or paid or set apart for payment or other
distribution declared or made upon
Junior Units, nor shall any Junior Units be
redeemed, purchased or otherwise
acquired (other than a redemption, purchase
or other acquisition of Junior Units
made in respect of a redemption, purchase
or other acquisition of Common Shares
made for purposes of and in compliance with
requirements of an employee
incentive or benefit plan of the General
Partner or any subsidiary, or as
permitted under Article VI of the
Declaration of Trust of the General Partner),
for any consideration (or any moneys to be
paid to or made available for a
sinking fund for the redemption of any such
Junior Units) by the General
Partner, directly or indirectly (except by
conversion into or exchange for
Junior Units), unless in each case
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(a) the full cumulative distributions on
all outstanding Series D-13 Preferred
Units and any other Parity Units of the
Partnership shall have been paid or set
apart for payment for all past Distribution
Periods with respect to the Series
D-13 Preferred Units and all past
distribution periods with respect to such
Parity Units, except to the extent that
distributions on the Series B-2
Restricted Preferred Units are not then
able to be paid owing to a lack of funds
in the Nongovernmental Account, and (b)
sufficient funds shall have been paid or
set apart for the payment of the
distribution for the current Distribution
Period with respect to the Series D-13
Preferred Units and any Parity Units,
except to the extent that distributions on
the Series B-2 Restricted Preferred
Units are not then able to be paid owing to
a lack of funds in the
Nongovernmental Account.
C. Liquidation Preference. (i) In the event of any liquidation,
dissolution or winding up of the
Partnership or the General Partner, whether
voluntary or involuntary, before any
payment or distribution of the assets of
the Partnership shall be made to or set
apart for the holders of Junior Units,
holders of the Series D-13 Preferred Units
shall be entitled to receive an
amount equal to the holder's Capital
Account in respect of those Series D-13
Preferred Units as of the date of such
liquidation, dissolution or winding up
after the Carrying Values of all
Partnership assets are adjusted pursuant to
Section 1.D of Exhibit B to the Agreement
and the holder's Capital Account is
adjusted accordingly (the "Liquidation
Preference"); but the holders of Series
D-13 Preferred Units shall not be entitled
to any further payment. If, upon any
such liquidation, dissolution or winding up
of the Partnership or the General
Partner, the assets of the Partnership, or
proceeds thereof, distributable to
the holders of Series D-13 Preferred Units,
shall be insufficient to pay in full
the preferential amount aforesaid and
liquidating payments on any other Parity
Units, then such assets, or the proceeds
thereof, shall be distributed among the
holders of the Series D-13 Preferred Units
and the holders of any such other
Parity Units ratably in accordance with the
respective amounts that would be
payable on such Series D-13 Preferred Units
and any such other Parity Units if
all amounts payable thereon were paid in
full. For the purposes of this Section
2.C, (i) a consolidation or merger of the
Partnership or the General Partner
with one or more entities, (ii) a statutory
share exchange by the Partnership or
the General Partner and (iii) a sale or
transfer of all or substantially all of
the Partnership's or the General Partner's
assets, shall not be deemed to be a
liquidation, dissolution or winding up,
voluntary or involuntary, of the
Partnership or General Partner.
(ii)
Subject to the rights of the holders of Partnership Units of
any
series or class or classes of shares
ranking on a parity with or prior to the
Series D-13 Preferred Units upon any
liquidation, dissolution or winding up of
the General Partner or the Partnership,
after payment shall have been made in
full to the holders of the Series D-13
Preferred Units, as provided in this
Section, any series or class or classes of
Junior Units shall, subject to any
respective terms and provisions applying
thereto, be entitled to receive any and
all assets remaining to be paid or
distributed, and the holder of the Series
D-13 Preferred Units shall not be entitled
to share therein.
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D. The Partnership's Right to Redeem the Series D-13 Preferred
Units.
(i) Except as set forth in Section 2.E
below, the Series D-13 Preferred Units
shall not be redeemable prior to December
30, 2011. Subject to the provisions of
Section 2.E below, on and after December
30, 2011, the General Partner may, at
its option, cause the Partnership to redeem
the Series D-13 Preferred Units in
whole or in part, as set forth herein,
subject to the provisions described
below, at a redemption price, payable in
cash, in an amount equal to $25 per
unit for the Series D-13 Preferred Units
being redeemed (the "Redemption
Price"). Upon any such redemption, the
Partnership shall also pay any
accumulated and unpaid distributions owing
in respect of the Series D-13
Preferred Units being redeemed.
(ii) If
fewer than all of the outstanding Series D-13 Preferred Units
that are not held by the General Partner
are to be redeemed, the Series D-13
Preferred Units to be redeemed from each
holder (other than the General Partner)
shall be selected pro rata (as nearly as
practicable without creating fractional
units). Any notice of redemption delivered
pursuant to this Section 2.D(ii) will
be (x) faxed and (y) mailed by the
Partnership, by certified mail, postage
prepaid, not less than 30 nor more than 60
days prior to the date upon which
such redemption is to occur (the "Third
Party Redemption Date"), addressed to
each holder of record of the Series D-13
Preferred Units at their respective
addresses as they appear on the records of
the Partnership. No failure to give
or defect in such notice shall affect the
validity of the proceedings for the
redemption of any Series D-13 Preferred
Units. In addition to any information
required by law, each such notice shall
state: (a) the Third Party Redemption
Date, (b) the amount payable per Series
D-13 Preferred Unit upon redemption,
including the Redemption Price and any
amount payable pursuant to Section
2.D(iv) hereof, (c) the aggregate number of
Series D-13 Preferred Units to be
redeemed and, if fewer than all of the
outstanding Series D-13 Preferred Units
are to be redeemed, the number of Series
D-13 Preferred Units to be redeemed
held by such holder, which number shall
equal such holder's pro rata share
(based on the percentage of the aggregate
number of outstanding Series D-13
Preferred Units not held by the General
Partner that the total number of Series
D-13 Preferred Units held by such holder
represents and determined as nearly as
practicable without creating fractional
interests) of the aggregate number of
Series D-13 Preferred Units to be redeemed,
(d) the place or places where such
Series D-13 Preferred Units are to be
surrendered for payment of the amount
payable upon redemption and (e) that
payment of such amount will be made upon
presentation and surrender of such Series
D-13 Preferred Units. If the
Partnership gives a notice of redemption in
respect of Series D-13 Preferred
Units pursuant to this Section 2.D(ii),
then, by 12:00 noon, New York City time,
on the Third Party Redemption Date, the
Partnership will deposit irrevocably in
trust for the benefit of the holders of
Series D-13 Preferred Units being
redeemed funds sufficient to pay the
applicable amount payable with respect to
such Series D-13 Preferred Units and will
give irrevocable instructions and
authority to pay such amount to the holders
of the Series D-13 Preferred Units
upon surrender of the Series D-13 Preferred
Units by such holders at the place
designated in the notice of redemption.
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(iii) Such Series D-13
Preferred Units as may be held by the General
Partner may be redeemed, in whole or in
part, at the option of the General
Partner, at any time, upon payment by the
Partnership to the General Partner of
the Redemption Price and any amount payable
pursuant to Section 2.D (iv) hereof
with respect to such Series D-13 Preferred
Units (such date is herein referred
to collectively with the Third Party
Redemption Date as the "Redemption Date").
(iv) Upon any redemption of Series D-13 Preferred Units pursuant
to
this Section 2.D, the Partnership shall pay
any accumulated and unpaid
distributions for any Distribution Period,
or any other period shorter than a
full Distribution Period, ending on or
prior to the Redemption Date. On and
after the Redemption Date, distributions
will cease to accumulate on the Series
D-13 Preferred Units called for redemption,
unless the Partnership defaults in
payment therefor. If any date fixed for
redemption of Series D-13 Preferred
Units is not a Unit Business Day, then
payment of the Redemption Price payable
on such date will be made on the next
succeeding day that is a Unit Business Day
(and without any interest or other payment
in respect of any such delay) except
that, if such Unit Business Day falls in
the next calendar year, such payment
will be made on the immediately preceding
Unit Business Day, in each case with
the same force and effect as if made on
such date fixed for redemption. If
payment of the Redemption Price is
improperly withheld or refused and not paid
by the Partnership, distributions on such
Series D-13 Preferred Units will
continue to accumulate from the original
redemption date to the date of payment,
in which case the actual payment date will
be considered the date fixed for
redemption for purposes of calculating the
applicable Redemption Price. Except
as provided above, the Partnership shall
make no payment or allowance for unpaid
distributions, whether or not in arrears,
on Series D-13 Preferred Units called
for redemption under this Section 2.D.
(v) If full cumulative distributions on the Series D-13 Preferred
Units
and any other series or class or classes of
Parity Units of the Partnership have
not been paid or declared and set apart for
payment, then except in fulfillment
of an exercise of the redemption rights set
forth in Paragraph 2.E below or, in
the case of Parity Units, the exercise of
any similar redemption, conversion or
other similar option granted concurrently
with the issuance of such Parity
Units, and except to the extent that such
distributions or amounts distributable
on the Series B-2 Restricted Preferred
Units may not be payable due to a lack of
funds in the Nongovernmental Account, the
Series D-13 Preferred Units may not be
redeemed in part and the Partnership may
not purchase, redeem or otherwise
acquire Series D-13 Preferred Units or any
Parity Units other than in exchange
for Junior Units.
Except as provided in Section 2.E below, as promptly as
practicable
after the surrender of any such Series D-13
Preferred Units so redeemed, such
Series D-13 Preferred Units shall be
exchanged for the amount of cash (without
interest thereon) payable therefore
pursuant to Section 2.D(i). If fewer than
all the Series D-13 Preferred Units
represented by any physical certificate are
redeemed, then the Partnership shall
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issue new certificates representing the
unredeemed Series D-13 Preferred Units
without cost to the holder thereof.
(vi) Any redemption in accordance with this Section 2.D shall
be
subject to the provisions of Section
2.E(i)(d) below to the extent applicable.
E. Series D-13 Preferred Unit Holder Redemption Right.
(i) General. (a) Subject to paragraphs (ii) and (iii) below, on
or
after the Series D-13 Effective Date, the
holder of the Series D-13 Preferred
Units shall have the right (the "Series
D-13 Redemption Right") to require the
Partnership to redeem the Series D-13
Preferred Units on any Series D-13
Specified Redemption Date, in cash, in an
amount equal to the holder's Capital
Account in respect of the Series D-13
Preferred Units being redeemed as of the
Series D-13 Specified Redemption Date after
the Carrying Values of all
Partnership assets are adjusted pursuant to
Section 1.D of Exhibit B to the
Agreement and the holder's Capital Account
is adjusted accordingly for the
Series D-13 Preferred Units being redeemed
(the "Series D-13 Redemption
Amount"). Any such Series D-13 Redemption
Right shall be exercised pursuant to
notice of redemption comparable to the
Notice of Redemption required under
Section 8.6 of the Agreement (a "Series
D-13 Notice of Redemption") delivered to
the Partnership (with a copy to the General
Partner) by the Limited Partner who
is exercising the Series D-13 Redemption
Right (the "Series D-13 Redeeming
Partner"). A holder of the Series D-13
Preferred Units may only exercise the
Series D-13 Redemption Right in respect of
all Series D-13 Preferred Units held
by such holder on the date of the
applicable Series D-13 Redemption Notice
unless the amount of Series D-13 Preferred
Units to be redeemed by such holder
equals or exceeds 800,000 Series D-13
Preferred Units. Any Series D-13
Redemption Right pursuant to which the
holder seeks to acquire Redemption
Property as contemplated in paragraph (d)
below must be in whole and not in
part. In addition, any redemption pursuant
to the Series D-13 Redemption Right
shall be subject to all of the provisions
of the Agreement governing redemptions
under Section 8.6 of the Agreement as if it
were a redemption under that
section, except as otherwise provided
herein.
(b) The Series D-13 Redeeming Partner shall have no right with
respect to any
Series D-13 Preferred Units so redeemed to receive any
distributions paid
after the Series D-13 Specified Redemption Date, unless
the record date
for the distribution preceded the Series D-13 Specified
Redemption Date.
If the record date for such distribution was a date prior
to the Series
D-13 Specified Redemption Date and the Distribution Payment
Date in respect
of such distribution was a date after the Series D-13
Specified
Redemption Date, such Series D-13 Redeeming Partner shall be
required, as a
condition of the redemption of such Series D-13 Preferred
Units, to pay
the amount of such distribution to the Partnership.
(c) Subject to the limits in Section 2.I below in respect of
the
right to request
Redemption Property pursuant to paragraph (d) below, the
Assignee of
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any Limited
Partner may exercise the rights of such Limited Partner
pursuant to this
Section 2.E, and such Limited Partner shall be deemed to
have assigned
such rights to such Assignee and shall be bound by the
exercise of such
rights by such Limited Partner's Assignee.
(d) (I) At the time the Partner holding Series D-13 Preferred
Units provides
written notice to the Partnership of its election to request
the Partnership
to redeem all, but not less than all, of its Series D-13
Preferred Units
in accordance with Section 2.E(i)(a), the Series D-13
Redeeming
Partner may request that the Partnership satisfy all of such
redemption
request with property ("Redemption Property") designated by the
holder, in lieu
of cash, so long as the holder includes such request in the
holder's Series
D-13 Redemption Notice and the request otherwise complies
with the
remainder of this paragraph (d). Similarly, upon receiving
notice
of an election
by the Partnership to redeem all or a portion of the Series
D-13 Preferred
Units pursuant to Section 2.D(i) above, the receiving
Partner
(references to the Series D-13 Redeeming Partner shall include,
for
purposes of this
paragraph (d), such receiving Partner) may request that
the Partnership
satisfy all of the redemption with Redemption Property in
lieu of cash by
providing written notice of its request to the Partnership
that complies
with the remainder of this paragraph (d) not later than five
(5) Business
Days after receipt by the Partner of the notice of redemption
contemplated in
Section 2.D(ii) above. In the case of an election by the
Series D-13
Redeeming Partner pursuant to Section 2.E(i)(a), the Series
D-13 Redeeming
Partner shall consult with the Partnership on the details of
any proposed
redemption for a reasonable time in advance of making the
formal written
request, and any such formal request for Redemption Property
in lieu of cash
shall be accompanied by an explanation, in reasonable
detail, of the
specific terms of the proposed redemption including, among
other things,
the identity of the specific Redemption Property to be
delivered, the
terms, including timing, upon which such property can be
acquired and the
means by which the holder will ensure that the Partnership
can obtain and
deliver the proposed Redemption Property to the holder free
and clear of
debt, other than Non-Recourse Debt, and free and clear of
other
liabilities or encumbrances, without any liability to the
Partnership
or any of its
affiliates (other than the purchase price therefore, which
amount shall not
exceed the Series D-13 Redemption Amount of the Series
D-13 Preferred
Units to be redeemed) and otherwise in a manner consistent
with the
remainder of this Section. In the event that at any time there
is
more than one
holder of Series D-13 Preferred Units, a request to be
redeemed for
Redemption Property must be made by all holders of Series D-13
Preferred
Units.
(II) If the Series D-13 Redeeming Partner delivers a request
for
Redemption Property in lieu of cash as contemplated above, the
Partnership shall consider the request in good faith, and if the
nature
and character of the proposed Redemption Property (including,
without
limitation, the effect that ownership of the property would have on
the
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Partnership and/or any of its direct or indirect partners), the
terms
upon which it is available to the Partnership and can be delivered
on
to the holder and the other terms and circumstances of the
proposed
alternate redemption are acceptable to the Partnership, in its
sole
discretion, then, as a prerequisite to the Partnership's obligation
to
provide the alternate consideration, the Partnership and the
holder
shall negotiate and enter into an agreement (a "Redemption
Agreement")
on terms consistent with this Section and otherwise acceptable to
the
Partnership in its discretion memorializing the parties'
respective
obligations. If the proposed Redemption Property or the terms or
other
circumstances of the proposed alternate redemption are not
acceptable
to the Partnership in its sole discretion, the Partnership shall
notify
the holder of
its determination and, following such notice, the
Partnership will be entitled to proceed with the redemption in
question
in accordance with the other provisions of the Partnership
Agreement
and this Exhibit and as if the Series D-13 Redeeming Partner had
not
requested Redemption Property; provided, however, that if the
Series
D-13 Redeeming Partner initiated the redemption pursuant to
this
