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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
<PAGE>
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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<PAGE>
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 pursua
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