Exhibit 3.1
TWENTY-NINTH
AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
VORNADO REALTY L.P.
Dated as of June 17, 2005
THIS TWENTY-NINTH AMENDMENT TO THE
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
VORNADO REALTY L.P. (this “ Amendment ”), dated
as of June 17, 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,
and the Twenty-Eighth Amendment to Second Amended and Restated
Agreement of Limited Partnership of Vornado Realty L.P., dated as
of December 30, 2004 (as so amended, the “ Agreement
”).
WHEREAS, the General Partner desires
to establish and set forth the terms of a new series of Partnership
Interests designated as 6.750% Series H Cumulative Redeemable
Preferred Units (the “ Series H 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 H
Preferred Units will not violate Section 4.2.E of the
Agreement;
2
WHEREAS, the General Partner desires
to amend the Agreement to set forth the terms of the Series H
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 AE thereof.
2.
Section 4.2 of the Agreement is
hereby supplemented by adding the following paragraph to the end
thereof:
“AE.
Issuance of Series H Preferred
Units. The Partnership is authorized to issue a series
designated as “Series H Preferred Units”,
which units shall have the terms set forth in
Exhibit AE 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 AE 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:
“X.
Series H Preferred Unit
Exception. Holders of Series H Preferred Units shall not
be entitled to the Redemption Right provided for in
Section 8.6.A of this Agreement.”
5.
Exhibit A
of the Agreement is hereby deleted
and is replaced in its entirety by new Exhibit A
attached hereto as Attachment 2 .
6.
Except as expressly amended hereby,
the Agreement shall remain in full force and effect.
3
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
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Finance and
Administration
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and Chief Financial
Officer
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4
Attachment 1
EXHIBIT AE
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 H 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
AE :
“ 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 H 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 H Preferred Unit, which
shall commence on the date on which such Series H 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 H Preferred Shares.
“ Dividend Periods
” shall mean the quarterly dividend periods with respect to
the Series H Preferred Shares.
“ Series H Preferred
Shares ” means the 6.750% Series H Cumulative
Redeemable Preferred Shares of Beneficial Interest (liquidation
preference $25.00 per share), no par value, issued by the General
Partner.
“ Series H 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 H Preferred Shares. The Series H Preferred
Units are Preference Units. The Series H 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 AE . It is the intention of the
General Partner, in establishing the Series H Preferred Units
that each Series H Preferred Unit shall be substantially the
economic equivalent of a Series H 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 H 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 H 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 H
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 H Preferred Units issued and
outstanding will be 4,500,000. The General Partner may issue
additional Series H 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 H Preferred Units then issued and
outstanding.
B.
Distributions
. (i) The General Partner, in
its capacity as the holder of the then outstanding Series H
Preferred Units, shall be entitled to receive, when, as and if
declared by the General Partner, distributions payable
