EXHIBIT 3.1
THIRTY-FIRST
AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
VORNADO REALTY L.P.
Dated as of September 9, 2005
THIS THIRTY-FIRST AMENDMENT TO THE
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
VORNADO REALTY L.P. (this “ Amendment ”), dated
as of September 9, 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, the Twenty-Ninth
Amendment to Second Amended and Restated Agreement of Limited
Partnership of Vornado Realty L.P., dated as of June 17, 2005,
and the Thirtieth Amendment to Second Amended and Restated
Agreement of Limited Partnership of Vornado Realty L.P., dated as
of August 31, 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 Series D-14 Preferred Units (the
“ Series D-14 Preferred Units ”) and to
amend the Agreement to accomplish the same;
WHEREAS, as of the date hereof, the
Partnership and the General Partner entered into a Private
Placement Purchase Agreement with Belvorn Holdings LLC
(the
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“ Initial Series D-14
Purchaser ”), pursuant to which the Partnership agreed to
issue to the Initial Series D-14 Purchaser Series D-14
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-14 Preferred
Units and set forth the terms thereof to reflect the issuance of
the above-referenced Series D-14 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.
Exhibit AG , 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:
“AG.
Issuance of Series D-14 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-14 Preferred
Units”. Series D-14 Preferred Units shall have the
terms set forth in Exhibit AG 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 AG 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:
Z.
Series D-14 Preferred Unit Exception . Holders of
Series D-14 Preferred Units shall not be entitled to
the
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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.
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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/ Joseph Macnow
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Name:
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Joseph Macnow
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Title:
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Executive Vice President –
Finance and Administration
and Chief Financial Officer
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Attachment 1
EXHIBIT AG
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-14 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 AG :
“ Annual Distribution
Rate ” shall have the meaning set forth in
Section 2.B(i) hereof.
“ Change of Control
Transaction ” shall mean a transaction in which
(i) the Common Shares of the General Partner are acquired for
cash in a transaction that results in such Shares being held by one
Person (“Person”, for purposes of this definition of
“Change of Control Transaction”, as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) including
any group acting for the purpose of acquiring, holding or disposing
of securities within the meaning of
Rule 13d-5(b)(1) under the Exchange Act, but excluding
the General Partner Entity, any subsidiary of the General Partner
Entity, any employee benefit plan or employee stock plan of the
General Partner Entity or any subsidiary or any person organized,
appointed, established or holding capital shares of the General
Partner Entity or a subsidiary pursuant to such a plan, or any
person organized by or on behalf of the General Partner Entity to
effect a reorganization or recapitalization of the General Partner
Entity that does not result in a change in the ultimate beneficial
ownership of 35% or more of the voting power of the then
outstanding equity interests of the General Partner Entity);
(ii) any Person is or becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of more than 35% of the
total voting power of the then outstanding equity interests of the
General Partner Entity; or (iii) during any year or any period
of two consecutive years, individuals who at the beginning of such
period constituted the Board of Trustees of the General Partner
Entity (together with any new trustees whose election by such Board
of Trustees or whose nomination for election by the shareholders of
the General Partner Entity was approved by a vote of a majority of
the trustees of the General Partner Entity then still in office who
were either directors at the beginning of such period or whose
election or nomination for election was previously so approved)
cease for any reason, to constitute a majority of the Board
of
Trustees of the General Partner Entity then in
office; provided, however, for purposes of the foregoing
determination, an individual who retires from the Board of Trustees
of the General Partner Entity and whose resignation is approved by
the individuals who at the beginning of such period constituted the
Board of Trustees of the General Partner Entity (together with any
directors referred to in the preceding parenthetical phrase) will
not be considered an individual who was a member of the Board of
Trustees of the General Partner Entity at the beginning of such
period or who ceased to be a director during such period if the
number of directors is reduced following such resignation.
For purposes of (i) and (ii) of this definition, the
following transactions shall not be deemed to be a Change of
Control Transaction: (1) any such transaction where
immediately after such transaction the person or Person or Persons
that “beneficially owned” (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act) immediately
prior to such transaction, directly or indirectly, more than 35% of
the then outstanding voting equity interests of the General Partner
Entity “beneficially own” (as so determined), directly
or indirectly, more than 35% of the total voting power of the then
outstanding equity interests of the surviving or transferee Person
or (2) any such transaction involving a Person that
immediately prior to such transaction is both (x) rated
“investment grade” or higher and (y) a Person with an
equity market capitalization of $2.0 billion or higher.
“ 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 D-14
Preferred Unit, which shall commence on the date on which such
Series D-14 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-14 Preferred Shares.
“ Extraordinary
Transaction ” means with respect to the General Partner
Entity or the Partnership, any distribution of cash or property to
its shareholders or partners in excess of 35% of its assets, a
merger (including without limitation, a triangular merger) or
consolidation of the General Partner Entity or the Partnership with
or into any other Person which effects a change in the beneficial
ownership (as determined in accordance with Rule 13(d)-3 under
the Securities Exchange Act of 1934,
2
as amended) of at least 35% of the voting
securities of the General Partner Entity or the Partnership, a
Change of Control Transaction or a sale of all or substantially all
of the assets of the General Partner Entity or the Partnership, or
any other similar extraordinary transaction involving the General
Partner Entity or the Partnership resulting in such change in
beneficial ownership.
“ 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-14
Effective Date ” shall be the first to occur of:
(a) January 1, 2016, (b) the first Unit Business Day
following any period in which the Partnership has failed to make
full distributions in respect of the Series D-14 Preferred
Units for six (6) Distribution Periods, whether or not
consecutive, (c) the first Unit Business Day following the
receipt by the holder of the Series D-14 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-14 Preferred Units that the Partnership is
or likely is, or upon the occurrence of a defined event in the
immediate future will be or likely will be, a PTP, (d) the
first Unit Business Day following the date on which any holder of
Series D-14 Preferred Units determines, based on results or
projected results, that there exists (in such holder’s
reasonable judgment) an imminent and substantial risk that the
Series D-14 Preferred Units held by such holder 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)),
(e) the first Unit Business Day following (1) receipt by
a holder of or holders of Series D-14 Preferred Units of
notice from the General Partner that the General Partner has
reasonably determined that the General Partner will not qualify as
a real estate investment trust under Sections 856-860 of the Code
for any taxable year or (2) delivery by any holder of
Series D-14 Preferred Units to the Partnership and the General
Partner an opinion of independent counsel based upon results or
projected results to the effect that the General Partner does not
or will not likely qualify as a real estate investment trust under
Sections 856-860 of the Code for any taxable year, (f) the
first Unit Business Day after the General Partner is required to
give the Limited Partners notice of an extraordinary transaction
with respect to the General Partner Entity as required under
Section 8.5.C of the Partnership Agreement, (g) the first
Unit Business Day after the occurrence of any transaction described
in the first sentence of Section 8.5.C of the Agreement,
(h) the first Unit Business Day following foreclosure by a
lender to whom such units were pledged pursuant to a bona fide
financing made for investment purposes upon customary commercial
terms, (i) the first Unit Business Day occurring at any time
after the third anniversary of the first issuance of
Series D-14 Preferred Units if the holders of Series D-14
Preferred Units shall deliver to the General
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Partner either (1) a private ruling letter
addressed to such Partner or (2) an opinion of independent
counsel reasonably acceptable to the General Partner and based on
the enactment of temporary or final Treasury Regulations or the
publication of a Revenue Ruling, in either case to the effect that
an exchange of the Series D-14 Preferred Units at such earlier
time would not cause the Series D-14 Preferred Units to be
considered “stock and securities” within the meaning of
Section 351(e) of the Code for purposes of determining
whether the holder of such Series D-14 Preferred Units is an
“investment company” under Section 721(b) of
the Code if an exchange were permitted at such earlier date or (j)
the first Unit Business Day after the occurrence of an
Extraordinary Transaction or, if earlier, the earlier of the date
on which the General Partner gives the holders of Series D-14
Preferred Units notice of an Extraordinary Transaction or the date
on which an Extraordinary Transaction is publicly
announced.
“ Series D-14 Notice
of Redemption ” shall have the meaning set forth in
Section 2.E(i)(a) hereof.
“ Series D-14
Preferred Shares ” means the shares of beneficial
interest of the General Partner Entity designated as
Series D-14 6.75% 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 AG
.
“ Series D-14
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 AG .
“ Series D-14
Redeeming Partner ” shall have the meaning set forth in
Section 2.E(i)(a) hereof.
“ Series D-14
Redemption Right ” shall have the meaning set forth in
Section 2.E(i)(a) hereof.
“ Series D-14
Specified Redemption Date ” shall mean the sixty-first
Unit Business Day after receipt by the General Partner of a
Series D-14 Notice of Redemption in respect of the
Series D-14 Units; provided , however , that the
Series D-14 Specified Redemption Date shall mean the tenth
Unit Business Day after receipt by the General Partner of a
Series D-14 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 ,
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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-14
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-14 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-14 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-14 Preferred Units issued and
outstanding will be 4,000,000. Without the approval of
existing holders of Series D-14 Units as set forth herein, the
Partnership may not issue additional Series D-14 Preferred
Units except (i) in connection with an issuance solely to all
the then existing holders thereof on the same terms and on an
identical per unit basis and (ii) to the General Partner
Entity in connection with an issuance of Series D-14 Preferred
Shares.
B.
Distributions . 1. The holders of the then
outstanding Series D-14 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 $1.6875 per
Series D-14 Preferred Unit (the “ Annual Distribution
Rate ”). Such distributions with respect to each
Series D-14 Preferred Unit shall be cumulative from the date
of issuance of such Series D-14 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
September 9, 2005. Distributions are cumulative from the
most recent Distribution Payment Date to which distributions have
been paid; provided that the amount per Series D-14
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.
2.
The amount of distribution per Series D-14 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
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initial
Distribution Period, or any other period shorter or longer than a
full Distribution Period, on the Series D-14 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-14 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-14 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-14 Preferred
Units that may be in arrears.
3. So
long as any Series D-14 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-14 Preferred Units for all Distribution Periods
terminatin
