EXHIBIT 3.1
THIRTIETH
AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
VORNADO REALTY L.P.
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Dated as of August 31, 2005
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THIS THIRTIETH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF VORNADO REALTY L.P. (this "Amendment"), dated as of
August 31, 2005, 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, and the Twenty-Ninth Amendment to Secodn Amended and Restated
Agreement of Limited Partnership of Vornado Realty L.P., dated as of June 17,
2005 (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 6.625% Series I
Cumulative Redeemable Preferred Units (the "Series I Preferred Units");
WHEREAS, Section 4.2.A of the Agreement grants the General Partner
authority to cause the Partnership to issue interests in the Partnership to a
person other than the General Partner in one or more classes or series, with
such designations, preferences and relative, participating, optional or other
special rights, powers and duties as may be determined by the General Partner in
its sole and absolute discretion so long as the issuance does not violate
Section 4.2.E of the Agreement;
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WHEREAS, the General Partner has determined that the establishment and
issuance of the Series I Preferred Units will not violate Section 4.2.E of the
Agreement;
WHEREAS, the General Partner desires to amend the Agreement to set
forth the terms of the Series I 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; and
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;
NOW, THEREFORE, the General Partner hereby amends the Agreement as
follows:
1. The exhibit attached to this Amendment as Attachment 1 is hereby
added to the Agreement as Exhibit AF thereof.
2. Section 4.2 of the Agreement is hereby supplemented by adding the
following paragraph to the end thereof:
"AF. Issuance of Series I Preferred Units. The Partnership is
authorized to issue a series designated as "Series I Preferred Units", which
units shall have the terms set forth in Exhibit AF 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 AF to the Agreement, including, but not limited to,
Paragraph 2.G(ii) thereof.
4. Section 8.6 of the Agreement is hereby supplemented by adding the
following paragraph to the end thereof:
"Y. Series I Preferred Unit Exception. Holders of Series I 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 AF
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 I 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 AF:
"Board of Trustees" shall mean the Board of Trustees of the General
Partner or any committee authorized by such Board of Trustees to perform any of
its responsibilities with respect to the Series I Preferred Shares.
"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.
"Common Shares" shall mean the common shares of beneficial interest of
the General Partner, par value $.04 per share.
"Distribution Payment Date" shall mean January 1, April 1, July 1 and
October 1, in each year, commencing on October 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 I Preferred Unit, which, (i) for Series I Preferred Units issued
prior to October 1, 2005, shall commence on, but exclude, the date of original
issue by the Partnership of any Series I Preferred Units and end on and include
the day preceding the first day of the next succeeding Distribution Period; and
(ii) for Series I Preferred Units issued on or after October 1, 2005, shall
commence on the Distribution Payment Date with respect to which distributions
were actually paid on Series I Preferred Units that were outstanding immediately
preceding the issuance of such Series I Preferred Units 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 I Preferred Shares.
"Dividend Periods" shall mean the quarterly dividend periods with
respect to the Series I Preferred Shares.
"Series I Preferred Shares" means the 6.625% Series I Cumulative
Redeemable Preferred Shares of Beneficial Interest (liquidation preference
$25.00 per share), no par value, issued by the General Partner.
"Series I Preferred Unit" means a Partnership Unit issued by the
Partnership to the General Partner in consideration of the contribution by the
General Partner to the Partnership of the entire net proceeds received by the
General Partner from the issuance of the Series I Preferred Shares. The Series I
Preferred Units are Preference Units. The Series I Preferred Units shall have
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 AF. It is the intention of the
General Partner, in establishing the Series I Preferred Units that each Series I
Preferred Unit shall be substantially the economic equivalent of a Series I
Preferred Share.
"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 or any class or series of Partnership
Units ranking on a parity with the Series I 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 I Preferred Units shall mean placing such funds in a
separate account or delivering such funds to a disbursing, paying or other
similar agent.
2. Terms of the Series I Preferred Units.
A. Number. As of the close of business on the date of the amendment
pursuant to which this Exhibit was adopted, the total number of Series I
Preferred Units issued and outstanding will be 12,050,000. The General Partner
may issue additional Series I 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 I Preferred Units then issued and outstanding.
B. Distributions. (i) The General Partner, in its capacity as the
holder of the then outstanding Series I 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 $1.65625 per Series I Preferred Unit (the
"Annual Distribution Rate"). Such distributions with respect to each Series I
Preferred Unit issued prior to October 1, 2005, shall be cumulative from, but
excluding, the date of original issue by the Partnership of any Series I
Preferred Units and with respect to Series I Preferred Units issued on or after
October 1, 2005 shall be cumulative from the Distribution Payment Date with
respect to dividends that were actually paid on Series I Preferred Units that
were outstanding immediately preceding the issuance of such Series I Preferred
Units, and shall be payable quarterly, when, as and if authorized and declared
by the General Partner, in arrears on each Distribution Payment Date commencing
with respect to each Series I Preferred Unit on the first Distribution Payment
Date following the issuance of such Series I Preferred Unit; provided that the
amount per Series I Preferred Unit to be paid in respect of the initial
Distribution Period shall be determined in accordance with paragraph (ii) below.
Accrued and
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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 I 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 I Preferred Units shall be computed on the
basis of twelve 30-day months and a 360-day year. The General Partner, in its
capacity as the holder of the then outstanding Series I 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 I 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 I Preferred Units that may be in arrears.
(iii) So long as any Series I 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 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 I 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 I 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 I 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 I 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 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 I
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 I 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
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funds shall have been paid or set apart for the payment of the distribution for
the current Distribution Period with respect to the Series I 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,
the General Partner, in its capacity as the holder of the Series I Preferred
Units, shall be entitled to receive Twenty-Five Dollars ($25.00) per Series I
Preferred Unit (the "Liquidation Preference") plus an amount equal to all
distributions (whether or not earned or declared) accrued and unpaid thereon to
the date of final distribution to the General Partner, in its capacity as such
holder; but the General Partner, in its capacity as the holder of Series I
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 General Partner, in its capacity as the holder of Series I 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 General Partner, in its
capacity as the holder of such Series I 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 I Preferred Units and any such other Parity
Units if all amounts payable thereon were paid in full. For the purposes of this
Section 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 I 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 General Partner, in its capacity as the holder of the Series I 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 General Partner, in its capacity as the holder of the Series I Preferred
Units, shall not be entitled to share therein.
D. Redemption of the Series I Preferred Units. (i) Except in
connection with the redemption of the Series I Preferred Shares by the General
Partner as permitted by the Declaration of Trust, the Series I Preferred Units
shall not be redeemable prior to August 31, 2010. On and after August 31, 2010,
the General Partner may, at its option, cause the Partnership to redeem the
Series I Preferred Units for cash, in whole or in part, as set forth herein,
subject to the provisions described below.
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(ii) The Series I Preferred Units may be redeemed, in whole or in
part, at the option of the General Partner, in its capacity as the holder of the
Series I Preferred Units, at any time, provided that the General Partner shall
redeem an equivalent number of Series I Preferred Shares. Such redemption of
Series I Preferred Units shall occur substantially concurrently with the
redemption by the General Partner of such Series I Preferred Shares (the
"Redemption Date").
(iii) Upon redemption of Series I Preferred Units by the General
Partner on the Redemption Date, each Series I Preferred Unit so redeemed shall
be converted into the right to receive Twenty-Five Dollars ($25.00) per Series I
Preferred Unit, plus any accrued and unpaid distributions with respect to the
Series I Preferred Units to the Redemption Date (the "Redemption Price").
Upon any redemption of Series I Preferred Units, the Partnership shall
pay any accrued and unpaid distributions in arrears for any Distribution Period
ending on or prior to the Redemption Date. If the Redemption Date falls after a
Dividend Payment Record Date and prior to the corresponding Dividend Payment
Date, then the General Partner, in its capacity as the holder of Series I
Preferred Units, shall be entitled to distributions payable on the equivalent
number of Series I Preferred Units as the number of the Series I Preferred
Shares with respect to which the General Partner shall be required, pursuant to
the terms of the Declaration of Trust, to pay to the holders of Series I
Preferred Shares at the close of business on such Dividend Payment Record Date
for the Series I Preferred Shares who, pursuant to such Declaration of Trust,
are entitled to the dividend payable on such Series I Preferred Shares on the
corresponding Dividend Payment Date notwithstanding the redemption of such
Series I Preferred Shares before such Dividend Payment Date. Except as provided
above, the Partnership shall make no payment or allowance for unpaid
distributions, whether or not in arrears, on Series I Preferred Units called for
redemption.
(iv) If full cumulative distributions on the Series I 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, except in connection with a
purchase, redemption or other acquisition of Series I Preferred Shares or shares
of beneficial interest ranking on a parity with such Series I Preferred Shares
as permitted under 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 I Preferred Units may not be redeemed in part and the Partnership may
not purchase, redeem or otherwise acquire Series I Preferred Units or any Parity
Units other than in exchange for Junior Units.
As promptly as practicable after the surrender of the certificates for
any such Series I Preferred Units so redeemed, such Series I Preferred Units
shall be exchanged for the cash (without interest thereon) for which such Series
I Preferred Units have been redeemed. If fewer than all the Series I Preferred
Units evidenced by any certificate are redeemed, the Partnership shall issue new
certificates evidencing the unredeemed Series I Preferred Units without cost to
the holder thereof.
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E. Conversion. The Series I 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
I Preferred Units, except as provided in Section D hereof.
F. Ranking. (i) Any class or series of Partnership Units shall be
deemed to rank:
(a) prior to the Series I 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 Preferred 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 I Preferred Units;
(b) on a parity with the Series I 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 I
Preferred Units, if the holders of such Partnership Units of such class or
series and the 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 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 I 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 I
Preferred Units, shall be entitled to receipt of distribution or of amounts
distributable upon liquidation, dissolution or 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 E-1 Convertible Preferred Units, Series E Preferred Units, Series F-1
Preferred Units, Series F Preferred Units, Series G Preferred Units and Series H
Units shall be Parity Units with respect to the Series I Preferred Units and the
holders of the Series I Preferred Units and 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
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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 E-1 Convertible Preferred Units,
Series E Preferred Units, Series F-1 Preferred Units, Series F Preferred Units,
Series G Preferred Units and Series H 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:
(i) the Series I 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; and
(ii) Distributions made pursuant to Subsections G(ii)(a) of this
Exhibit AF 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 I Preferred Units and such
other Partnership Units, as applicable, to the total amounts to be
paid in respect of the Series I 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.
G. Voting. (i) Except as required by law, the General Partner, in its
capacity as the holder of the Series I 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 I Preferred Units are outstanding, the General
Partner shall not authorize the creation of Partnership Units of any new class
or series or any interest in the Partnership convertible, exchangeable or
redeemable into Partnership Units of any new class or series ranking prior to
the Series I 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 unless such Partnership Units are issued to the General
Partner and the distribution and redemption (but not voting) rights of such
Partnership Units are substantially similar to the terms of securities issued by
the General Partner and the proceeds or other consideration from the issuance of
such securities have been or are concurrently with such issuance contributed to
the Partnership.
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H. Restrictions on Ownership and Transfer. The Series I Preferred
Units shall be owned and held solely by the General Partner.
I. General. (i) The rights of the General Partner, in its capacity as
the holder of the Series I Preferred Units, are in addition to and not in
limitation on any other rights or authority of the General Partner, in any other
capacity, under the Agreement. In addition, nothing contained in this Exhibit AF
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
the Series I 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 I Preferred
Units) to ensure that the Series I Preferred Units (including, without
limitation the redemption and conversion terms thereof) permit the General
Partner to satisfy its obligations (including, without limitation, its
obligations to make dividend payments on the Series I Preferred Shares) with
respect to the Series I Preferred Shares, it being the intention that the terms
of the Series I Preferred Units shall be substantially similar to the terms of
the Series I Preferred Shares.
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