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Exhibit 3.4
TENTH
AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
VORNADO REALTY L.P.
---------------------------------------------
Dated as of September 3, 1999
---------------------------------------------
THIS TENTH AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF VORNADO REALTY L.P. (this "Amendment") is hereby adopted
by Vornado Realty Trust, a Maryland real estate investment trust (defined
therein 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., 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, 1997, and the Third Amendment to Second Amended and
Restated Agreement of Limited Partnership of Vornado Realty L.P., dated as of
November 12, 1998, and the Fourth Amendment to Second Amended and Restated
Agreement of Limited Partnership of Vornado Realty L.P., dated as of November
30, 1998, and the Fifth Amendment to Second Amended and Restated Agreement of
Limited Partnership of Vornado Realty L.P., dated as of March 3, 1999, and the
Sixth Amendment to Second Amended and Restated Agreement of Limited Partnership
of Vornado Realty L.P., dated as of March 17, 1999, and the Seventh Amendment to
Second Amended and Restated Agreement of Limited Partnership of Vornado Realty
L.P., dated as of May 20, 1999, and the Eighth Amendment to Second Amended and
Restated Agreement of Limited Partnership of Vornado Realty L.P., dated as of
May 27, 1999 and the Ninth Amendment to Second Amended and Restated Agreement of
Limited Partnership of Vornado Realty L.P., dated as of September 3, 1999 (as so
amended and as the same may be further 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-4 8.25%
Preferred Units (the
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"Series D-4 Preferred Units");
WHEREAS, as of the date hereof, the Partnership entered into a Private
Placement Purchase Agreement with The Times Mirror Company, a Delaware
corporation, and TMCT II, LLC, a Delaware limited liability company, pursuant to
which the Partnership agreed to issue to The Times Mirror Company Series D-4
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;
WHEREAS, the General Partner has determined that the establishment and
issuance of the Series D-4 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 D-4 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 Q thereof.
2. Section 4.2 of the Agreement is hereby supplemented by adding the
following paragraph to the end thereof:
"N. Issuance of Series D-4 Preferred Units. The Partnership is
authorized to issue a series designated as "Series D-4 Preferred
Units", which units shall have
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the terms set forth in Exhibit Q 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 honor the provisions of Paragraph 2
of Exhibit Q 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:
"M. Series D-4 Preferred Unit Exception. Holders of Series D-4
Preferred Units shall not be entitled to the Redemption Right provided
for in Section 8.6.A of this Agreement."
5. The General Partner hereby consents to the admission of TMCT II, LLC
as a Limited Partner in the Partnership, records the name of TMCT II, LLC on the
books and records of the Partnership and covenants to amend Exhibit A to the
Agreement pursuant to Section 14.1(E) of the Agreement to reflect the ownership
of Series D-4 Preferred Units by TMCT II, LLC.
6. Except as expressly amended hereby, the Agreement shall remain in
full force and effect.
SIGNATURE ON FOLLOWING PAGE
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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/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President -- Chief Financial
Officer
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Attachment 1
EXHIBIT Q
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-4 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 Q:
"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 March, June, September and December, in each year, commencing on December 1,
1999; 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 March 1, June 1, September 1 and December 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-4 Preferred Unit, which shall commence on the date on
which such Series D-4 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
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respect to the Series D-4 Preferred Shares.
"Redemption Date" shall have the meaning set forth in Section
2.D(iii) hereof.
"Series D-4 Effective Date" shall be the sooner of: (w)
September 3, 2009, (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-4 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-4 Preferred Units of (A) notice from the General Partner that
the General Partner or the Partnership has become aware of facts that will or
likely will cause the Partnership to become 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-4 Preferred Units that the
Partnership is or likely is a PTP, and (z) the first Unit Business Day following
the date on which (A) TMCT II, LLC, a Delaware limited liability company ("LLC")
determines, based on results or projected results, that there exists (in the
reasonable judgment of LLC) an imminent and substantial risk that the Series D-4
Preferred Units held by LLC represent or will represent 19.5% or more of the
total profits or capital interests in the Partnership for a taxable year (within
the meaning of Treasury Regulations Section 1.731-2(e)(4), (B) LLC delivers to
the General Partner an opinion of nationally recognized independent counsel,
reasonably acceptable to the General Partner, to the effect that there is a
substantial risk that its interest in the Partnership does not or will not
satisfy such 19.5% limit and (C) the General Partner agrees with the conclusions
referred to in clauses (z)(A) and z(B) of this sentence, such agreement not to
be unreasonably withheld.
"Series D-4 Notice of Redemption" shall have the meaning set
forth in Section 2.E(i)(a) hereof.
"Series D-4 Preferred Shares" means the shares of beneficial
interest of the General Partner Entity designated as 8.25% Series D-4 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 Q.
"Series D-4 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 Q.
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"Series D-4 Redeeming Partner" shall have the meaning set
forth in Section 2.E(i)(a) hereof.
"Series D-4 Redemption Right" shall have the meaning set forth
in Section 2.E(i)(a) hereof.
"Series D-4 Specified Redemption Date" shall mean the sixtieth
Unit Business Day after receipt by the General Partner of a Series D-4 Notice of
Redemption in respect of the Series D-4 Units.
"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-4 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-4 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-4 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
D-4 Preferred Units issued and outstanding will be up to 5,000,000.
B. Distributions. (i) Distributions on the series D-4
Preferred Units will accrue whether or not declared, whether or not the terms
and provisions of any agreement of the Partnership at any time prohibit the
current payment of distributions, whether or not the Partnership has earnings,
whether or not there are funds legally available for the payment of such
distributions and whether or not such distributions are
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authorized. The holders of the then outstanding Series D-4 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 $2.0625 per Series D-4
Preferred Unit (the "Annual Distribution Rate"). Such distributions shall be
cumulative from the date of issuance and shall be payable quarterly, when, as
and if authorized and declared by the General Partner, in arrears on each
Distribution Payment Date, commencing on the first Distribution Payment Date
after the date of issuance of the Series D-4 Preferred Units; provided that the
amount per Series D-4 Preferred Unit to be paid in respect of the initial
Distribution 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-4 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-4 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-4 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-4 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-4 Preferred Units that may
be in arrears.
(iii) So long as any Series D-4 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 payment on
the Series D-4 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-4
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-4
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.
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(iv) So long as any Series D-4 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 to the extent necessary to avoid adverse tax effects to 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-4 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-4 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-4
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-4 Preferred Units shall be entitled to
receive Twenty-Five Dollars ($25.00) per Series D-4 Preferred Unit plus an
amount equal to all distributions (whether or not earned or declared)
accumulated and unpaid thereon to the date of final distribution to the holders
of such units; but the holders of Series D-4 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-4
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-4 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-4
Preferred Units and any
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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-4 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-4 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-4
Preferred Units shall not be entitled to share therein.
D. The Partnership's Right to Redeem the Series D-4 Preferred
Units. (i) Except in connection with the redemption of the Series D-4 Preferred
Shares by the General Partner as permitted by Article VI of the Declaration of
Trust or as set forth in Section E below, the Series D-4 Preferred Units shall
not be redeemable prior to September 3, 2004. On and after September 3, 2004,
the General Partner may, at its option, cause the Partnership to redeem the
Series D-4 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 Twenty-Five Dollars ($25.00) per unit for the Series D-4
Preferred Units being redeemed. Upon any such redemption, the Partnership shall
also pay any accumulated and unpaid distributions (whether or not declared) in
respect of the Series D-4 Preferred Units being redeemed.
(ii) Such Series D-4 Preferred Units as are not held by the
General Partner may be redeemed by the Partnership on or after September 3,
2004, in whole or in part, at any time or from time to time, upon not less than
30 nor more than 60 days' written notice. If fewer than all of the outstanding
Series D-4 Preferred Units that are not held by the General Partner are to be
redeemed, the Series D-4 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 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-4 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-4 Preferred Units except as to
the holder to whom such notice was defective or not given. In addition
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to any information required by law, each such notice shall state: (a) the Third
Party Redemption Date, (b) the amount payable per Series D-4 Preferred Unit upon
redemption, including the Redemption Price and any amount payable pursuant to
Section D(iv) hereof, (c) the aggregate number of Series D-4 Preferred Units to
be redeemed and, if fewer than all of the outstanding Series D-4 Preferred Units
are to be redeemed, the number of Series D-4 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-4 Preferred Units
not held by the General Partner that the total number of Series D-4 Preferred
Units held by such holder represents and determined as nearly as practicable
without creating fractional interests) of the aggregate number of Series D-4
Preferred Units to be redeemed, (d) the place or places where such Series D-4
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-4 Preferred Units. If the Partnership gives a
notice of redemption in respect of Series D-4 Preferred Units pursuant to this
Section 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-4 Preferred Units being redeemed funds
sufficient to pay the applicable amount payable with respect to such Series D-4
Preferred Units and will give irrevocable instructions and authority to pay such
amount to the holders of the Series D-4 Preferred Units upon surrender of the
Series D-4 Preferred Units by such holders at the place designated in the notice
of redemption. If a redemption is made in part and not in whole, it shall be
made pro rata among the holders.
(iii) Such Series D-4 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 D(iv)
hereof with respect to such Series D-4 Preferred Units; provided that the
General Partner shall redeem an equivalent number of Series D-4 Preferred
Shares. Such redemption of Series D-4 Preferred Units shall occur substantially
concurrently with the redemption by the General Partner of such Series D-4
Preferred Shares (such date is herein referred to collectively with the Third
Party Redemption Date as the "Redemption Date"). If a redemption is made in part
and not in whole, it shall be made pro rata among the holders.
(iv) Upon any redemption of Series D-4 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-4 Preferred Units
called for redemption, unless the Partnership defaults in
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payment therefor. If any date fixed for redemption of Series D-4 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-4 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-4 Preferred Units called
for redemption under this Section 2.D.
(v) If full cumulative distributions on the Series D-4
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 D-4
Preferred Shares or shares of beneficial interest ranking on a parity with such
Series D-4 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-4 Preferred Units may not be
redeemed in part and the Partnership may not purchase, redeem or otherwise
acquire Series D-4 Preferred Units or purchase, redeem or otherwise acquire any
Parity Units other than in exchange for Junior Units.
As promptly as practicable after the surrender of any Series
D-4 Preferred Units so redeemed, such Series D-4 Preferred Units shall be
exchanged for the amount of cash (without interest thereon) payable therefor
pursuant to Section 2.D(i). If fewer than all the Series D-4 Preferred Units
represented by any physical certificate are redeemed, the Partnership shall
issue new certificates representing the unredeemed Series D-4 Preferred Units
without cost to the holder thereof.
(vi) Unless the General Partner elects to assume directly and
satisfy the Series D-4 Redemption Right by paying to the Redeeming Partner
wholly in the form of Series D-4 Preferred Shares as provided for in Section
2.E(ii)(a) below, such part of the redemption price of the Series D-4 Preferred
Units (other than any portion consisting of accumulated and unpaid
distributions) required in Section 2.D(i) above and Sections 2.E(i)(a) and
Section 2.E(ii)(a) below as is payable in cash shall be payable solely with the
proceeds from the sale by the General Partner Entity or the Partnership of other
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capital shares of the General Partner Entity or the Partnership (whether or not
such sale occurs concurrently with such redemption, but in the case of a
redemption required by Section 2.E below such sale must occur after the delivery
of the applicable Series D-4 Notice of Redemption). For purposes of the
preceding sentence, "capital shares" means any common shares, preferred shares,
depositary shares, partnership or other interests, participations or other
ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities) or options to
purchase any of the foregoing of or in the General Partner Entity or the
Partnership.
E. Series D-4 Preferred Unit Holder Redemption Right.
(i) General. (a) Subject to paragraphs (ii) and (iii) below
and Section 2.D(vi) above, on or after the Series D-4 Effective Date, any holder
of the Series D-4 Preferred Units shall have the right (the "Series D-4
Redemption Right") to require the Partnership to redeem the Series D-4 Preferred
Units on any Series D-4 Specified Redemption Date in cash at a redemption price
equal to Twenty-Five Dollars ($25.00) per unit for the Series D-4 Preferred
Units being redeemed. Upon such redemption the Partnership shall also pay any
accumulated and unpaid distributions (whether or not declared) for the Series
D-4 Preferred Units being redeemed. Any such Series D-4 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-4 Notice of
Redemption") delivered to the Partnership (with a copy to the General Partner)
by the Limited Partner who is exercising the Series D-4 Redemption Right (the
"Series D-4 Redeeming Partner"). Except in the event of the occurrence of the
circumstance described in clause (z) of the definition of "Series D-4 Effective
Date", a holder of the Series D-4 Preferred Units may only exercise the Series
D-4 Redemption Right in respect of all Series D-4 Preferred Units held by such
holder on the date of the applicable Series D-4 Redemption Notice. In addition,
any redemption pursuant to the Series D-4 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-4 Redeeming Partner shall have no right with
respect to any Series D-4 Preferred Units so redeemed to receive any
distributions paid after the Series D-4 Specified Redemption Date, unless the
record date for the distribution preceded the Series D-4 Specified Redemption
Date. If the record date for such distribution was a date prior to the Series
D-4 Specified Redemption Date and the Distribution Payment Date in respect of
such distribution was a date after the Series D-4 Specified Redemption Date,
such Series D-4 Redeeming Partner shall be required, as a condition of the
redemption of such Series D-4 Preferred Units, to pay the amount of such
distribution to the Partnership (if such Series D-4 Preferred Units are redeemed
for cash) or to the General Partner (if such Series D-4 Preferred Units are
redeemed for Series D-4 Preferred Shares).
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(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 the 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-4 Preferred Units has delivered a Series D-4 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-4 Redemption Right by
paying to the Redeeming Partner either (x) the redemption price required in
Section 2.E(i)(a) above plus any accumulated and unpaid distributions (whether
or not declared) for the Series D-4 Preferred Units being redeemed, subject to
Section 2.D(vi), or (y) in the form of Series D-4 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-4 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-4 Redemption Right. In the event the General Partner
shall exercise its right to satisfy the Series D-4 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-4 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-4 Preferred Units
to exercise the Series D-4 Redemption Right afforded pursuant to paragraph (i)
above.
(b) In the event that the Partnership redeems Series D-4
Preferred Units for cash in accordance with Section 2.E(i)(a) or the General
Partner elects to purchase the Series D-4 Preferred Units in accordance with
Section 2.E(ii)(a), the units so redeemed shall be terminated. In the event that
the General Partner determines to pay the Redeeming Partner in the form of
Series D-4 Preferred Shares, the General Partner shall issue to the Series D-4
Redeeming Partner one Series D-4 Preferred Share for each Series D-4 Preferred
Unit being redeemed (subject to modification as set forth in paragraph (c)
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below), whereupon the General Partner shall acquire the Series D-4 Preferred
Units offered for redemption by the Series D-4 Redeeming Partner and shall be
treated for all purposes of the Agreement as the owner of such Series D-4
Preferred Units. If the General Partner determines to pay the redemption price
in the form of Series D-4 Preferred Shares only in part, such payment shall be
made pro rata to the holders thereof. Any accumulated and unpaid distributions,
whether or not declared, on such Series D-4 Preferred Units to the date of such
redemption shall also be deemed to have accumulated on the Series D-4 Preferred
Shares paid to the Series D-4 Redeeming Partner in consideration of such Series
D-4 Preferred Units at the time of the issuance of such Series D-4 Preferred
Shares.
(c) In the event that there shall be outstanding at any time
both Series D-4 Preferred Shares and Series D-4 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-4
Preferred Shares), in each case as a result of which the Series D-4 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-4 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-4 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-4 Preferred Units and no
Series D-4 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-4 Preferred Shares deliverable by the General Partner
thereafter in redemption of Series D-4 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 Q.
(d) Each Redeeming Partner agrees to execute such documents as
the General Partner may reasonably require that are necessary in connection with
the issuance of Series D-4 Preferred Shares upon exercise of the Series D-4
Redemption Right and are consistent with the provisions hereof.
(iii) No Liens on Partnership Units Delivered for Redemption.
Each holder of any Series D-4 Preferred Units covenants and agrees with the
General Partner that all Series D-4 Preferred Units delivered for redemption
shall be delivered to the
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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-4 Preferred Units which are or may be subject to any liens. Each holder
of any Series D-4 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-4 Preferred Units to the Partnership or the General Partner, such holder shall
assume and pay such transfer tax.
F. Conversion. The Series D-4 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-4 Preferred Units, except as provided in Sections D and E
hereof.
G. Ranking. (i) Any class or series of Partnership Units shall
be deemed to rank:
(a) prior to the Series D-4 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-4 Preferred Units;
(b) on a parity with the Series D-4 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-4 Preferred Units, if the holders of such Partnership Units of such class or
series and the Series D-4 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-4 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-4 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").
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(ii) The Series A Preferred Units, Series B Pass-Through
Preferred Units and Series C Pass-Through Preferred Units shall be Parity Units
with respect to the Series D-4 Preferred Units and the holders of the Series D-4
Preferred Units and Series A Preferred Units, Series B Pass-Through Preferred
Units and Series C Pass-Through 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) For so long as the Class D Units are outstanding, the
Series D-4 Preferred Units shall not rank senior to the Class D Units as to
preferential distributions or redemption or voting rights. For so long as the
Class D Units are outstanding, the Series D-4 Preferred Units shall receive: (i)
accumulated and unpaid distributions on a basis pari passu with distributions
made to the holders of any outstanding Class D Units pursuant to Subsection
5.1.B(ii) of the Agreement and (ii) other distributions on a basis pari passu
with distributions made to the holders of any outstanding Class D Units pursuant
to Subsection 5.1.B(iii) of the Agreement.
(b) When the Class D Units are no longer outstanding, the
Series D-4 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.
(c) Distributions made pursuant to Subsections G (ii)(a) and
G(ii)(b) of this Exhibit Q 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-4 Preferred Units and such other
Partnership Units, as applicable, to the total amounts to be paid in respect of
the Series D-4 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 distribution may not be
paid due to a lack of funds in the Nongovernmental Account.
(iii) For purposes of allocations of items made pursuant to
Article VI of the Agreement:
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(a) As long as the Class D Units are outstanding, the Series
D-4 Preferred Units shall be allocated items pari passu with the allocation of
items to the holders of Class D Units in respect of their priority payments
(i.e., as allocated in Section 6.1.A (iii) and (iv) and Section 6.1.B (viii) and
(ix) 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 such
Partnership Units, as applicable; references to Class D Units in Article VI of
the Agreement shall be deemed to also refer to Series D-4 Preferred Units except
that references to distributions made to the Class D Units shall be deemed to
refer to distributions made to the Series D-4 Preferred Units in a pro rata
manner with such distributions made to the Class D Units.
(b) When the Class D Units are no longer outstanding, the
Series D-4 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-4 Preferred Units except
that references to distributions made to Preference Units shall be deemed to
refer to distributions made to the Series D-4 Preferred Units in a pro rata
manner with such distributions, if any, made to the Preference Units.
H. Voting. (i) Except as set forth in paragraph (ii) or (iii)
below, the holders of the Series D-4 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-4 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-4 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-4 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-4 Preferred Shares, or any units of any class or
series ranking on a parity with the Series D-4 Preferred Shares (to the extent
such parity shares are not issued to an Affiliate of the Company), shall not
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be deemed to materially and adversely affect the voting powers, rights or
preferences of the holders of Series D-4 Preferred Shares or (b) the
authorization or creation of, or the increase in the authorized amount of, any
shares of any class or series or any security convertible into shares of any
class or series ranking prior to the Series D-4 Preferred Shares in the
distribution of assets on any liquidation, dissolution or winding up of the
General Partner or in the payment of distributions; provided, however, that, in
the case of each of subparagraphs (a) and (b), no such vote of the holders of
Series D-4 Preferred 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-4 Preferred Units at the time outstanding in
accordance with and subject to the provisions hereof.
(iii) So long as any Series D-4 Preferred Units remain outstanding, the
Partnership shall not, without the affirmative vote of the holders of at least a
majority of the Series D-4 Preferred Units outstanding at the time, (x)
authorize or create, or increase the authorized or issued amount of, any class
or series of Partnership Units ranking senior to the Series D-4 Preferred Units
with respect to payment of distributions or rights upon liquidation, dissolution
or winding-up or reclassify any Partnership Units of the Partnership into any
such senior Partnership Unit, or create, authorize or issue any obligations or
securities convertible into or evidencing the right to purchase any such senior
Partnership Units, (y) authorize or create, or increase the authorized or issued
amount of any Parity Preferred Units or reclassify any Partnership Unit of the
Partnership into any such Partnership Unit or create, authorize or issue any
obligations or securities convertible into or evidencing the right to purchase
any such Partnership Units, but in each case only to the extent such Parity
Preferred Units are issued to an affiliate of the Partnership, other than the
General Partner to the extent the issuance of such interests was to allow the
General Partner to issue corresponding securities to persons who are not
affiliates of the Partnership or (z) either consolidate, merge into or with any
corporation or other entity or amend, alter or repeal the provisions of the
Partnership Agreement (including, without limitation, this Section 2.H of
Exhibit Q thereto), whether by merger, consolidation or otherwise, in each case
in a manner that would materially and adversely affect the powers, special
rights, preferences, privileges or voting power of the Series D-4 Preferred
Units; provided, however, that the Partnership may, without the consent of any
Limited Partner, authorize or create, or increase the authorized or issued
amount of, any class or series of Partnership Units ranking on a parity with the
Series A Preferred Units, Series B Pass-Through Preferred Units and Series C
Pass-Through Preferred Units and having distribution and redemption (but not
voting) rights substantially similar to the terms of securities issued by the
General Partner, the proceeds or other consideration from the issuance of which
have been contributed to the Partnership; provided further that with respect to
the occurrence of any event set forth in (z) above, so long as (A) the
Partnership is the surviving entity and the Series D-4 Preferred Units remain
outstanding with the terms thereof unchanged, or (B) the resulting, surviving or
transferee corporation
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or other entity substitutes, for the Series D-4 Preferred Units, other interests
in such corporation or other entity having substantially the same terms and
rights as the Series D-4 Preferred Units, including with respect to
distributions, voting rights and rights upon liquidation, dissolution or
winding-up, then the occurrence of any such event shall be deemed to not
materially and adversely affect the powers, special rights, preferences,
privileges or voting power of the Series D-4 Preferred Units; and provided
further that any increase in the amount of Partnership Units or the creation or
issuance of any other class or series of Partnership Units, in each case ranking
either (C) junior to the Series D-4 Preferred Units with respect to payment of
distributions and the distribution of assets upon liquidation, dissolution or
winding-up or (D) on a parity with the Series D-4 Preferred Units with respect
to payment of distributions and the distribution of assets upon liquidation,
dissolution or winding-up to the extent such Partnership Units are not issued to
an affiliate of the Partnership, other than the General Partner to the extent
the issuance of such interests was to allow the General Partner to issue
corresponding securities to persons who are not affiliates of the Partnership,
shall be deemed to not materially and adversely affect the powers, special
rights, preferences, privileges or voting power of the Series D-4 Preferred
Units.
For purposes of the foregoing provisions of section H(ii) and
this section H(iii), each Series D-4 Preferred Unit shall have one (1) vote per
unit.
(iv) So long as any Series D-4 Preferred Units are outstanding, the
Partnership shall not, without the affirmative vote of at least a majority of
the Series D-4 Preferred Units outstanding at the time, enter into any contract,
mortgage, loan or other agreement that prohibits or restricts, or has the effect
of prohibiting or restricting, the General Partner from electing to assume
directly and satisfy the Series D-4 Redemption Right by paying to the Redeeming
Partner in the form of Series D-4 Preferred Shares, as set forth in paragraph
2.E(ii)(b) above.
(v) Notwithstanding anything to the contrary herein, in no event shall
the General Partner or any of its Affiliates have any voting, consent or
approval rights in respect of any Series D-4 Preferred Units it or they may
hold, and any percentage or portion of outstanding Series D-4 Preferred Units
that may be required hereunder for any vote, consent or approval of holders
thereof shall be determined as if all Series D-4 Preferred Units then held by
the General Partner or any of its Affiliates were not outstanding.
I. Transfers. Notwithstanding anything in this Agreement to
the contrary, the Series D-4 Preferred Units shall be freely transferable by The
Times Mirror Company, a Delaware corporation, to LLC, which shall upon such
transfer be admitted as
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a Limited Partner hereunder.
J. General. (i) At such time, if any, as the General Partner
becomes a holder of Series D-4 Preferred Units, the rights of the General
Partner, in its capacity as the holder of the Series D-4 Preferred Units, except
as to voting, will be 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 Q 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-4 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-4 Preferred Units) to ensure that the Series D- 4 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 D-4 Preferred Shares) with
respect to the Series D-4 Preferred Shares, if and when any such Units are
issued, it being the intention that, except to the extent provided in Schedule 1
to this Exhibit Q, the terms of the Series D-4 Preferred Shares will be
substantially similar to the terms of the Series D-4 Preferred Units.
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