Exhibit 3.1
EXECUTION COPY
THIRTY-FOURTH
AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
VORNADO REALTY L.P.
Dated as of May 2, 2006
THIS THIRTY-FOURTH AMENDMENT TO THE SECOND AMENDED AND
RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF VORNADO REALTY L.P. (this “
Amendment
”),
dated as of May 2, 2006, 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 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, the Twenty-Seventh Amendment to Second
Amended and Restated Agreement of Limited Partnership of Vornado Realty L.P.,
dated as of December 20, 2004, the Twenty-Eighth Amendment to Second
Amended and Restated Agreement of Limited Partnership of Vornado Realty L.P.,
dated as of December 30, 2004, the Twenty-Ninth Amendment to Second
Amended and Restated Agreement of Limited Partnership of Vornado Realty L.P.,
dated as of June 17, 2005, the Thirtieth Amendment to Second Amended and
Restated Agreement of Limited Partnership of Vornado Realty L.P., dated as of August 31,
2005, the Thirty-First Amendment to Second Amended and Restated Agreement of
Limited Partnership of Vornado Realty L.P., dated as of September 9, 2005,
the Thirty-Second Amendment to Second Amended and Restated Agreement of Limited
Partnership of Vornado Realty L.P., dated as of December 19, 2005, and the
Thirty-Third Amendment to Second Amended and Restated Agreement of Limited
Partnership of Vornado Realty L.P., dated as of April 25, 2006 (as so
amended, the “Agreement”).
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WHEREAS, the General Partner desires to establish and
set forth the terms of a new series of Partnership Interests designated as
Series D-15 Preferred Units (the “
Series D-15 Preferred Units
”)
to amend the Agreement to accomplish the same;
WHEREAS, as of the date hereof, the Partnership
entered into a Private Placement Purchase Agreement with GSEP 2006 Realty Corp.,
a Delaware corporation (the “
Initial Series D-15 Purchaser
”), and with
Goldman Sachs 2006 Exchange Place Fund, L.P., a Delaware limited partnership, pursuant
to which the Partnership agreed to issue to the Initial Series D-15 Purchaser
Series D-15 Preferred Units;
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-15 Preferred Units and set forth the terms thereof to reflect the
issuance of the above-referenced Series D-15 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 AI
,
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:
“AI.
Issuance
of Series D-15 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-15 Preferred
Units”. Series D-15 Preferred Units shall have the terms set forth in
Exhibit AI
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
3
of Paragraph 2 of
Exhibit AI
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:
AB.
Series D-15
Preferred Unit Exception
. Holders of Series D-15 Preferred Units shall
not be entitled to the Redemption Right provided for in Section 8.6.A of
this Agreement.”
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.
4
IN WITNESS WHEREOF, the General Partner has executed
this Amendment as of the date first written above.
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VORNADO REALTY
TRUST
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By
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/s/ Alan J. Rice
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Name:
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Alan J. Rice
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Title:
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Senior Vice
President
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Attachment 1
EXHIBIT AI
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-15 PREFERRED UNITS
1.
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 AI
:
“
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 July 1, 2006;
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-15 Preferred
Unit, which shall commence on the date on which such Series D-15 Preferred
Unit was issued by the Partnership and end on and include the day preceding the
first day of the next succeeding Distribution Period).
“
Dividend Payment Date
” shall mean a dividend
payment date with respect to the Series D-15 Preferred Shares.
“
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.
“
Series D-15 Effective Date
” shall be the
sooner of: (w) May 2, 2016,
(x) the first Unit Business Day following any period in which the
Partnership has failed to make full distributions in respect of the Series D-15
Preferred Units for six (6) Distribution Periods, whether or not
consecutive, (y) the first Unit Business Day following the receipt by the
holder of the Series D-15 Preferred Units of (A) notice from the
General Partner that the General Partner or the Partnership has taken the
position that the Partnership is or likely is a publicly-traded partnership
within the meaning of Section 7704 of the Code or any successor provision
thereof (a “
PTP
”) or (B) an opinion rendered by independent counsel
familiar with such matters addressed to the holder of Series D-15
Preferred Units that the Partnership is or likely is a PTP, and (z) the
first Unit Business Day following the date on which GSEP 2006 Realty Corp., or
its assignee (the “
Initial Series D-15 Purchaser
”) as approved by
the General Partner in accordance with the terms and conditions of the
Agreement and the Limited Partner Acceptance of Partnership Agreement executed
and delivered by GSEP 2006 Realty Corp., including any amendment thereto,
determines, based on results or projected results, that there exists (in the
Initial Series D-15 Purchaser’s reasonable judgment) an imminent and
substantial risk that the Series D-15 Preferred Units held by the Initial Series D-15
Purchaser represent or will represent 19.5% or more of the total profits or
capital interests in the Partnership for a taxable year (determined in
accordance with Treasury Regulations Section 1.731-2(e)(4)).
“
Series D-15 Notice of Redemption
” shall
have the meaning set forth in Section 2.E(i)(a) hereof.
“
Series D-15 Preferred Shares
” means the
shares of beneficial interest of the General Partner Entity designated as Series D-15
6.875% Cumulative Redeemable Preferred Shares of beneficial interest (liquidation
preference $25.00 per share), no par value, having the rights and preferences
and other terms set forth in
Schedule 1
to this
Exhibit AI
.
“
Series D-15 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 AI
.
“
Series D-15 Redeeming Partner
” shall have
the meaning set forth in Section 2.E(i)(a) hereof.
“
Series D-15 Redemption Right
” shall have
the meaning set forth in Section 2.E(i)(a) hereof.
“
Series D-15 Specified Redemption Date
”
shall mean the sixty-first calendar day after receipt by the General Partner of
a Series D-15 Notice of Redemption
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in respect of the Series D-15 Units;
provided
,
however
, that
the Series D-15 Specified Redemption Date shall mean the tenth Unit
Business Day after receipt by the General Partner of a Series D-15 Notice
of Redemption delivered in respect of a redemption described in Treas. Reg.
1.7704-1(e).
“
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-15 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-15 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.
2.
Terms of the Series D-15
Preferred Units
.
A.
Number
. As of
the close of business on the date of the amendment pursuant to which this
Exhibit AI
was adopted, the total number of Series D-15 Preferred Units issued and
outstanding will be 1,400,000. The Partnership may issue additional Series D-15
Preferred Units from time to time in accordance with the terms of the Agreement
and, in connection with any such additional issuance,
Exhibit A
to
the Agreement shall be revised to reflect the total number of Series D-15
Preferred Units then issued and outstanding.
B.
Distributions
.
(i) The holders of the then outstanding Series D-15 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 $1.71875 per Series D-15
Preferred Unit (the “
Annual Distribution Rate
”). Such distributions with
respect to each Series D-15 Preferred Unit shall be cumulative from the
date of issuance of such Series D-15 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 after May 2, 2006. Distributions are cumulative from the most
recent Distribution Payment Date to which distributions have been paid;
provided
that the amount per Series D-15 Preferred Unit
to be paid in respect of the initial Distribution Period, or any other period
shorter or longer than a full Distribution Period,
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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-15 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-15 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-15
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-15 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-15 Preferred Units that may be in arrears.
(iii)
So long as any Series D-15
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-15
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-15
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-15
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-15 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 (a) the full cumulative distributions on all outstanding Series D-15
Preferred Units and
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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-15
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-15 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-15 Preferred Units shall be entitled to receive an
amount equal to the holder’s Capital Account in respect of those Series D-15
Preferred Units; but the holders of Series D-15 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-15
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-15
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-15
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-15
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-15 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-15
Preferred Units shall not be entitled to share therein.
D.
The Partnership’s
Right to Redeem the Series D-15 Preferred Units
. (i) Except in
connection with the redemption of the Series D-15 Preferred Shares by the
General Partner as permitted by Article VI of the Declaration of Trust or
as set forth in Section 2.E below, the Series D-15 Preferred Units
shall not be redeemable prior to May 2, 2011. On and after May 2, 2011,
the General Partner may, at its option, cause
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the Partnership to redeem the Series D-15 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 the holder’s Capital
Account for the Series D-15 Preferred Units being redeemed as of the
relevant redemption date taking into account any distributions accumulated with
respect to any partial Distribution Period preceding the relevant redemption
date and 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 (
e.g.
,
treating all accumulated distributions then being made as made pursuant to Section 5.1B.
for purposes of determining allocations under Section 6.1) for the Series D-15
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-15 Preferred Units being
redeemed.
(ii)
Such
Series D-15 Preferred Units as are not held by the General Partner may be
redeemed by the Partnership on or after May 2, 2011, in whole or in part,
at any time or from time to time, upon not less than 61 calendar days’ written
notice provided, that such notice may be waived by the Partnership. If
fewer than all of the outstanding Series D-15 Preferred Units that are not
held by the General Partner are to be redeemed, the Series D-15 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 61 calendar 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-15 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-15 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-15 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-15 Preferred Units to be
redeemed and, if fewer than all of the outstanding Series D-15 Preferred
Units are to be redeemed, the number of Series D-15 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-15
Preferred Units not held by the General Partner that the total number of Series D-15
Preferred Units held by such holder represents and determined as nearly as
practicable without creating fractional interests) of the aggregate number of Series D-15
Preferred Units to be redeemed, (d) the place or places where such Series D-15
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-15 Preferred Units. If the
Partnership gives a notice of redemption in respect of Series D-15
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-15
Preferred Units being redeemed funds sufficient to pay the applicable amount
payable
6
with respect to such Series D-15 Preferred Units and will give
irrevocable instructions and authority to pay such amount to the holders of the
Series D-15 Preferred Units upon surrender of the Series D-15
Preferred Units by such holders at the place designated in the notice of
redemption.
(iii)
Such Series D-15
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-15 Preferred Units;
provided
that the General Partner shall redeem an equivalent number of Series D-15
Preferred Shares. Such redemption of Series D-15 Preferred Units shall
occur substantially concurrently with the redemption by the General Partner of
such Series D-15 Preferred Shares (such date is herein referred to
collectively with the Third Party Redemption Date as the “
Redemption Date
”).
(iv)
Upon
any redemption of Series D-15 Preferred Units, 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-15 Preferred Units called for redemption,
unless the Partnership defaults in payment therefor. If any date fixed for
redemption of Series D-15 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-15 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-15 Preferred Units called for
redemption under this Section 2.D.
(v)
If
full cumulative distributions on the Series D-15 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 right set forth in Section 2.E
below or except in connection with a purchase, redemption or other acquisition
of Series D-15 Preferred Shares or shares of beneficial interest ranking
on a parity with such Series D-15 Preferred Shares as permitted under Article VI
of the Declaration of Trust 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-15
Preferred Units may not be redeemed in part and the Partnership may not
purchase, redeem or otherwise
7
acquire Series D-15 Preferred Units or any Parity Units other than
in exchange for Junior Units.
(vi)
Except
as provided in Section 2.E below, as promptly as practicable after the
surrender of any such Series D-15 Preferred Units so redeemed, such Series D-15
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-15 Preferred Units represented by any physical certificate
are redeemed, then the Partnership shall issue new certificates representing
the unredeemed Series D-15 Preferred Units without cost to the holder
thereof.
E.
Series D-15
Preferred Unit Holder Redemption Right
.
(i)
General
.
(a) Subject to paragraphs (ii) and (iii) below, on or after the
Series D-15 Effective Date, the holder of the Series D-15 Preferred
Units shall have the right (the “
Series D-15 Redemption Right
”) to
require the Partnership to redeem the Series D-15 Preferred Units on any Series D-15
Specified Redemption Date in cash in an amount equal to the holder’s Capital
Account for the Series D-15 Preferred Units being redeemed as of the
relevant redemption date taking into account any distributions accumulated with
respect to any partial Distribution Period preceding the relevant redemption
date and 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 (
e.g
.,
treating all accumulated distributions then being made as made pursuant to Section 5.1B.
for purposes of determining allocations under Section 6.1) for the Series D-15
Preferred Units being redeemed. Any such Series D-15 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-15
Notice of Redemption
”) delivered to the Partnership (with a copy to the
General Partner) by the Limited Partner who is exercising the Series D-15
Redemption Right (the “
Series D-15 Redeeming Partner
”). Except in
the event of the occurrence of the circumstance described in clause (z) of the
definition of “Series D-15 Effective Date”, a holder of the Series D-15
Preferred Units may only exercise the Series D-15 Redemption Right in
respect of all Series D-15 Preferred Units held by such holder on the date
of the applicable Series D-15 Redemption Notice. In addition, any redemption
pursuant to the Series D-15 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-15 Redeeming Partner shall have no right with respect to any Series D-15
Preferred Units so redeemed to receive any distributions paid after the Series D-15
Specified Redemption Date, unless the record date for the distribution preceded
the Series D-15 Specified Redemption Date. If the record date for such
distribution was a date prior to the Series D-15 Specified Redemption Date
and the Distribution Payment Date in respect of such distribution was a date
after the Series D-15 Specified Redemption Date, such Series D-15
Redeeming Partner shall be required, as a
8
condition of the redemption of such Series D-15 Preferred Units,
to pay the amount of such distribution to the Partnership (if such Series D-15
Preferred Units are redeemed for cash) or to the General Partner (if such Series D-15
Preferred Units are redeemed for Series D-15 Preferred Shares).
(c)
The
Assignee of 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. In connection with
any exercise of such rights by such Assignee on behalf of such Limited Partner,
the Redemption Price and any accumulated and unpaid distributions shall be paid
by the Partnership directly to such Assignee and not to such Limited Partner.
(ii)
General
Partner Assumption of Right
. (a) If the holder of the Series D-15
Preferred Units has delivered a Series D-15 Notice of Redemption, the
General Partner may, in its sole and absolute discretion (subject to any
limitations on ownership and transfer of Shares set forth in the Declaration of
Trust), elect to assume directly and satisfy the Series D-15 Redemption
Right (no earlier than the relevant Series D-15 Specified Redemption Date)
by paying to the Redeeming Partner either (x) an amount equal to the
holder’s Capital Account for the Series D-15 Preferred Units being
redeemed as of the relevant redemption date taking into account any
distributions accumulated with respect of any partial Distribution Period
preceding the relevant redemption date and 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
(e.g., treating all accumulated distributions then being made as made pursuant
to Section 5.1B. for purposes of determining allocations under Section 6.1)
for the Series D-15 Preferred Units being redeemed or (y) in the form of
Series D-15 Preferred Shares, as set forth in paragraph (b) below. Unless
the General Partner, in its sole and absolute discretion, shall exercise its
right to assume directly and satisfy the Series D-15 Redemption Right, the
General Partner shall not have any obligation to the Redeeming Partner or to
the Partnership with respect to the Redeeming Partner’s exercise of the Series D-15
Redemption Right. In the event the General Partner shall exercise its right to
satisfy the Series D-15 Redemption Right in the manner described in the
first sentence of this paragraph (ii) and shall fully perform its
obligations in connection therewith, the Partnership shall have no right or
obligation to pay any amount to the Redeeming Partner with respect to such
Redeeming Partner’s exercise of the Series D-15 Redemption Right, and each
of the Redeeming Partner, the Partnership and the General Partner shall, for
federal income tax purposes, treat the transaction between the General Partner
and the Redeeming Partner as a sale of the Redeeming Partner’s Partnership
Units to the General Partner. Nothing contained in this paragraph (ii) shall
imply any right of the General Partner to require any holder of Series D-15
Preferred Units to exercise the Series D-15 Redemption Right afforded
pursuant to paragraph (i) above.
(b)
In
the event that the Partnership redeems Series D-15 Preferred Units for
cash in accordance with Section 2.E(i)(a), the units so redeemed shall be
9
terminated. In the event that the General Partner determines to pay the
Redeeming Partner in the form of Series D-15 Preferred Shares, the
General Partner shall issue to the Series D-15 Redeeming Partner one Series D-15
Preferred Share for each Series D-15 Preferred Unit being redeemed
(subject to modification as set forth in paragraph (c) below), whereupon
the General Partner shall acquire the Series D-15 Preferred Units offered
for redemption by the Series D-15 Redeeming Partner and shall be treated
for all purposes of the Agreement as the owner of such Series D-15
Preferred Units. Any accumulated and unpaid distributions on such Series D-15
Preferred Units to the date of such redemption shall also be deemed to have
accumulated on the Series D-15 Preferred Shares paid to the Series D-15
Redeeming Partner in consideration of such Series D-15 Preferred Units at
the time of the issuance of such Series D-15 Preferred Shares.
(c)
In
the event that there shall be outstanding at any time both Series D-15
Preferred Shares and Series D-15 Preferred Units and the General Partner
shall be a party to any transaction (including, without limitation, a merger,
consolidation or statutory share exchange with respect to the Series D-15
Preferred Shares), in each case as a result of which the Series D-15
Preferred Shares are converted into the right to receive shares of capital
stock, other securities or other property (including cash or any combination
thereof), thereafter the Redemption Price payable by the General Partner in
respect of one Series D-15 Preferred Unit shall be the kind and amount of
shares of capital stock and other securities and property (including cash or
any combination thereof) that was received upon consummation of such
transaction in return for one Series D-15 Preferred Share; and the General
Partner may not become a party to any such transaction unless the terms
thereof are consistent with the foregoing. In case there shall be outstanding Series D-15
Preferred Units and no Series D-15 Preferred Shares and the General
Partner shall be a party to any merger or consolidation in which the General
Partner is not the surviving entity, then the Series D-15 Preferred Shares
deliverable by the General Partner thereafter in redemption of Series D-15
Preferred Units pursuant to clause (ii) above shall be shares of the
surviving entity or any entity controlling the surviving entity having the
preferences, rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption substantially similar to
those set forth on
Schedule 1
to this
Exhibit AI
.
(d)
Each
Redeeming Partner agrees to execute such documents as the General Partner may reasonably
require in connection with the issuance of Series D-15 Preferred Shares
upon exercise of the Series D-15 Redemption Right.
(iii)
Exceptions to
Exercise of Redemption Right
. Notwithstanding the provisions of paragraphs (i) and
(ii) above, a Partner shall not be entitled to exercise the Series D-15
Redemption Right if (but only as long as) the delivery of Series D-15
Preferred Shares to such Partner on the Series D-15 Specified Redemption
Date (a) would be prohibited under the Declaration of Trust, or (b) as
long as the Common Shares or any previously issued Series D-15 Preferred
Shares are Publicly Traded, would be prohibited under applicable federal or
state securities laws or regulations (assuming the General Partner would in
fact assume and satisfy the Series D-15 Redemption Right).
10
(iv)
No
Liens on Partnership Units Delivered for Redemption
. Each holder of any Series D-15
Preferred Units covenants and agrees with the General Partner that all Series D-15
Preferred Units delivered for redemption shall be delivered to the Partnership
or the General Partner, as the case may be, free and clear of all liens,
and, notwithstanding anything contained herein to the contrary, neither the
General Partner nor the Partnership shall be under any obligation to acquire Series D-15
Preferred Units which are or may be subject to any liens. Each holder of Series D-15
Preferred Units further agrees that, in the event any state or local property
transfer tax is payable as a result of the transfer of its Series D-15
Preferred Units to the Partnership or the General Partner, such holder shall
assume and pay such transfer tax.
F.
Conversion
.
The Series D-15 Preferred Units are not convertible into or redeemable or
exchangeable for any other property or securities of the General Partner Entity
or the Partnership at the option of any holder of Series D-15 Preferred
Units, except as provided in Sections 2.D and 2.E hereof.
G.
Ranking
. (i)
Any class or series of Partnership Units shall be deemed to rank:
(a)
prior
to the Series D-15 Preferred Units, as to the payment of distributions and
as to distribution of assets upon liquidation, dissolution or winding up of the
General Partner or the Partnership, if the holders of such class or series of
Partnership Units shall be entitled to the receipt of distributions or of
amounts distributable upon liquidation, dissolution or winding up, as the case may be,
in preference or priority to the holders of Series D-15 Preferred Units;
(b)
on
a parity with the Series D-15 Preferred Units, as to the payment of
distributions and as to the distribution of assets upon liquidation,
dissolution or winding up of the General Partner or the Partnership, whether or
not the distribution rates, distribution payment dates or redemption or
liquidation prices per Partnership Unit be different from those of the Series D-15
Preferred Units, if the holders of such Partnership Units of such class or
series and the Series D-15 Preferred Units shall be entitled to the
receipt of distributions and of amounts distributable upon liquidation,
dissolution or winding up in proportion to their respective amounts of accrued
and unpaid distributions per Partnership Unit or liquidation preferences,
without preference or priority one over the other, 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 (“
Parity Units
”); and
(c)
junior
to the Series D-15 Preferred Units, as to the payment of distributions or
as to the distribution of assets upon liquidation, dissolution or winding up of
the General Partner or the Partnership, if such class or series of
Partnership Units shall be Class A Units or if the holders of Series D-15
Preferred Units shall be entitled to receipt of distributions or of amounts
distributable upon liquidation, dissolution or
11
winding up, as the case may be, in preference or priority to the
holders of Partnership Units of such class or series (“
Junior
Units
”).
(ii)
The
Series A Preferred Units, Series B-1 Convertible Preferred Units, the
Series B-2 Convertible Restricted Preferred Units, Series B
Pass-Through Preferred Units, Series C-1 Convertible Preferred Units, Series C
Pass-Through Preferred Units, Series D-1 Preferred Units, Series D-2
Preferred Units, Series D-3 Preferred Units, Series D-4 Preferred
Units, Series D-5 Preferred Units, Series D-6 Preferred Units, Series D-7
Preferred Units, Series D-8 Preferred Units, Series D-9 Preferred
Units, Series D-10 Preferred Units, Series D-11 Preferred Units, Series D-12
Preferred Units, D-13 Preferred Units, Series D-14 Preferred Units, Series E-1
Convertible Preferred Units, Series E Preferred Units, Series F-1
Preferred Units, Series F Preferred Units, Series G Preferred Units, Series H
Preferred Units and Series I Preferred Units shall be Parity Units with
respect to the Series D-15 Preferred Units and the holders of the Series D-15
Preferred Units and holders of the Series A Preferred Units, Series B-1
Convertible Preferred Units, the Series B-2 Restricted Preferred Units, Series B
Pass-Through Preferred Units, Series C-1 Convertible Preferred Units, Series C
Pass-Through Preferred Units, Series D-1 Preferred Units, Series D-2
Preferred Units, Series D-3 Preferred Units, Series D-4 Preferred
Units, Series D-5 Preferred Units, Series D-6 Preferred Units, Series D-7
Preferred Units, Series D-8 Preferred Units, Series D-9 Preferred
Units, Series D-10 Preferred Units, Series D-11 Preferred Units, Series D-12
Preferred Units, D-13 Preferred Units, Series D-14 Preferred Units, Series E-1
Convertible Preferred Units, Series E Preferred Units, Series F-1
Preferred Units, Series F Preferred Units, Series G Preferred Units, Series H
Preferred Units and Series I Preferred Units shall be entitled to the
receipt of distributions and of amounts distributable upon liquidation,
dissolution or winding up in proportion to their respective amounts of
accumulated and unpaid distributions per Partnership Unit or liquidation
preferences, without preference or priority one over the other, except in the
case of distributions on the Series B-2 Restricted Preferred Units to the
extent not payable due to a lack of funds in the Nongovernmental Account and
except that:
(a)
The
Series D-15 Preferred Units shall be Preference Units and shall receive
distributions on a basis
pari
passu
with other Partnership Units, if any, receiving
distributions pursuant to Section 5.1.B(i) of the Agreement, except
to the extent that distributions on the Series B-2 Restricted Preferred
Units may not be paid due to a lack of funds in the Nongovernmental
Account.
(b)
Distributions
made pursuant to Subsection 2.G(ii)(a) of this
Exhibit AI
shall be made pro rata with other distributions made to other Partnership Units
as to which they rank
pari
passu
based on the ratio of the amounts to be paid the Series D-15
Preferred Units and such other Partnership Units, as applicable, to the total
amounts to be paid in respect of the Series D-15 Preferred Units and such
other Partnership Units taken together on the Partnership Record Date, except
in the case of distributions on the Series B-2 Restricted Preferred Units
to the extent such distributions may not be paid due to a lack of funds in
the Nongovernmental Account.
12
(iii)
For purposes of
allocations of items made pursuant to Article VI of the Agreement, the Series D-15
Preferred Units shall be Preference Units and shall be allocated items
pari
passu
with the
allocation of items to holders of Preference Units (
i
.
e
., as allocated in Section 6.1.A(ii) and Section 6.1.B
(x) of the Agreement) and shall share in those allocations in a pro rata manner
based on the distributions and allocations of items, as applicable, made to
Preference Units, as applicable; references to Preference Units in Article VI
of the Agreement shall be deemed to also refer to Series D-15 Preferred
Units except that references to distributions made to Preference Units shall be
deemed to refer to distributions made to the Series D-15 Preferred Units
in a pro rata manner with such distributions, if any, made to the Preference
Units.
H.
Voting
. (i)
Except as provided in this Section 2.H or as required by law, the holders
of the Series D-15 Preferred Units shall not be entitled to vote at any
meeting of the Partners or for any other purpose or otherwise to participate in
any action taken by the Partnership or the Partners, or to receive notice of
any meeting of the Partners.
(ii)
So
long as any Series D-15 Preferred Units are outstanding, the General
Partner shall not authorize the creation of or cause the Partnership to issue
Partnership Units of any class or series or any interest in the
Partnership convertible into or exchangeable for Partnership Units of any class or
series ranking prior to the Series D-15 Preferred Units in the
distribution of assets on any liquidation, dissolution or winding up of the
General Partner or the Partnership or in the payment of distributions, or
reclassify any Partnership Units of the Partnership into any such senior
Partnership Units;
(iii)
So long as any Series D-15
Preferred Units are outstanding, in addition to any other vote or consent of
unit holders required by the Agreement of Limited Partnership or of
shareholders required by the Declaration of Trust, the affirmative vote of at
least a majority of the votes entitled to be cast by the holders of Series D-15
Preferred Units at the time outstanding given in person or by proxy, either in
writing without a meeting or by vote at any meeting called for the purpose,
shall be necessary for effecting or validating (a) any amendment,
alteration or repeal of any of the provisions of the Declaration of Trust that
materially and adversely affects the voting powers, rights or preferences of
the Series D-15 Preferred Shares;
provided
,
however
, that the amendment of the provisions of the
Declaration of Trust so as to authorize or create or to increase the authorized
amount of, any Junior Shares with respect to the Series D-15 Preferred
Shares or any units of any class or series ranking on a parity with
the Series D-15 Preferred Shares shall not be deemed to materially and
adversely affect the voting powers, rights or preferences of the holders of Series D-15
Preferred Shares or (b) the authorization or creation of, or the increase
in the authorized or issued amount of, any shares of any class or series or
any security convertible into or exchangeable for shares of any class or series ranking
prior to the Series D-15 Preferred Shares in the distribution of assets on
any liquidation, dissolution or winding up of the General Partner or in the
payment of dividends or distributions;
provided
,
however
, that, in the case of each of subparagraphs (a) and
(b), no such vote of the holders of Series D-15 Preferred
13
Units shall be required if, at or prior to the time when such
amendment, alteration or repeal is to take effect, or when the issuance of any
such prior shares or convertible security is to be made, provision is made for
the redemption of all Series D-15 Preferred Units at the time outstanding
in accordance with the provisions hereof.
I.
General
.
(i) At such time, if any, as the General Partner becomes a holder of Series D-15
Preferred Units, the rights of the General Partner, in its capacity as the
holder of the Series D-15 Preferred Units, will be in addition to and not
in limitation of any other rights or authority of the General Partner, in any
other capacity, under the Agreement. In addition, nothing contained in this
Exhibit AI
shall be deemed to limit or otherwise restrict any rights or authority of the
General Partner under the Agreement, other than in its capacity as the holder
of Series D-15 Preferred Units.
(ii)
Anything
herein contained to the contrary notwithstanding, the General Partner shall
take all steps that it determines are necessary or appropriate (including
modifying the foregoing terms of the Series D-15 Preferred Units) to
ensure that the Series D-15 Preferred Units (including, without limitation
the redemption and conversion terms thereof) permit the General Partner to
satisfy its obligations with respect to the Series D-15 Preferred Shares
(including, without limitation, its obligations to make dividend payments on
the Series D-15 Preferred Shares), if and when any such shares are issued,
it being the intention that, except to the extent provided in Schedule 1
to this
Exhibit AI
, the terms of the Series D-15 Preferred
Shares will be the same as the terms of the Series D-15 Preferred Units in
all material respects.
14
Attachment 2
Exhibit A
16