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Exhibit 3.2
SIXTH
AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
VORNADO REALTY L.P.
---------------------------------------------
Dated as of March 17, 1999
---------------------------------------------
THIS SIXTH 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 (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 8.5% Series B
Pass-Through Preferred Units (the "Series B Pass-Through Preferred Units");
WHEREAS, Section 4.2.A of the Agreement grants the General Partner
authority to cause the Partnership to issue interests in the Partnership to a
person other than the General Partner in one or more classes or series, with
such designations, preferences and relative, participating, optional or other
special rights, powers and duties as may be determined by the General Partner in
its sole and absolute discretion so long as the issuance does not violate
Section 4.2.E of the Agreement.
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WHEREAS, the General Partner has determined that the establishment and
issuance of the Series B Pass-Through 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 B Pass-Through 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 M thereof.
2. Section 4.2 of the Agreement is hereby supplemented by adding the
following paragraph to the end thereof:
"J. Issuance of Series B Pass-Through Preferred Units. The Partnership is
authorized to issue a series designated as "Series B Pass-Through
Convertible Preferred Units", which units shall have the terms set forth
in Exhibit M 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 M to the Agreement, including, but not
limited to, Paragraph 2.F(ii) thereof.
4. Section 8.6 of the Agreement is hereby supplemented by adding the
following paragraph to the end thereof:
"I. Series B Pass-Through Preferred Unit Exception. Holders of Series B
Pass-Through Preferred Units shall not be entitled to the Redemption
Right provided for in Section 8.6.A of this Agreement."
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5. Exhibit A of the Agreement is hereby deleted and is replaced in
its entirety by new Exhibit A attached hereto as Attachment 2.
6. Except as expressly amended hereby, the Agreement shall remain in
full force and effect.
SIGNATURES 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/ Irwin Goldberg
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Name: Irwin Goldberg
Title: Vice President
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Attachment 1
EXHIBIT M
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 B PASS-THROUGH 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 M:
"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 B 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 July 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 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 B Pass-Through Preferred Unit, which shall commence on the date on
which such Series B Pass-Through 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 B Preferred Shares.
"Dividend Periods" shall mean the quarterly dividend periods with respect
to the Series B Preferred Shares.
"Series B Preferred Shares" means the 8.5% Series B Cumulative Redeemable
Preferred Shares of Beneficial Interest (liquidation preference $25.00 per
share), no par value, issued by the General Partner.
"Series B Pass-Through 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 B
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Preferred Shares. The Series B Pass-Through Preferred Units are Preference
Units. The Series B Pass-Through 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 M. It is the intention of the General Partner, in
establishing the Series B Pass-Through Preferred Units, that each Series B
Pass-Through Preferred Unit shall be substantially the economic equivalent of a
Series B 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 B Pass-Through 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 B Pass-Through 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 B Pass-Through 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 B
Pass-Through Preferred Units issued and outstanding will be up to 3,000,000. The
General Partner may issue additional Series B Pass-Through 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 B Pass-Through Preferred
Units then issued and outstanding.
B. Distributions. (i) The General Partner, in its capacity as the
holder of the then outstanding Series B Pass-Through 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 $2.125 per Series B
Pass-Through 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 B Pass-Through Preferred Units;
provided that the amount per Series B Pass-Through Preferred Unit to be paid in
respect of the initial Distribution Period shall be determined in accordance
with paragraph (ii) below. Accrued 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 B Pass-Through 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 B Pass-Through Preferred Units shall be
computed on the basis of twelve 30-day months and a 360-day year. The General
Partner, in its capacity as the holder of the then outstanding Series B
Pass-Through 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 B Pass-Through 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 B Pass-Through Preferred
Units that may be in arrears.
(iii) So long as any Series B Pass-Through Preferred Units are
outstanding, no distributions, except as described in the immediately following
sentence, shall be declared or paid or set apart for payment on any series or
class or classes of Parity Units for any period unless full cumulative
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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 B Pass-Through Preferred Units for all Distribution Periods terminating
on or prior to the distribution payment date on such class or series of Parity
Units. 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 B
Pass-Through 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 B Pass-Through Preferred Units and such Parity Units.
(iv) So long as any Series B Pass-Through Preferred Units are
outstanding, no distributions (other than distributions paid solely in Junior
Units or options, warrants or rights to subscribe for or purchase Junior Units)
shall be declared or paid or set apart for payment or other distribution
declared or made upon Junior Units, nor shall any Junior Units be redeemed,
purchased or otherwise acquired (other than a redemption, purchase or other
acquisition of Junior Units made in respect of a redemption, purchase or other
acquisition of Common Shares made for purposes of and in compliance with
requirements of an employee incentive or benefit plan of the General Partner or
any subsidiary, or as permitted under Article VI of the Declaration of Trust of
the General Partner), for any consideration (or any moneys to be paid to or made
available for a sinking fund for the redemption of any such Junior Units) by the
General Partner, directly or indirectly (except by conversion into or exchange
for Junior Units), unless in each case (a) the full cumulative distributions on
all outstanding Series B Pass-Through 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 B Pass-Through 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 B Pass-Through Preferred Units and any Parity Units, except to the
extent that distributions on the Series B-2 Restricted Preferred Units are not
then able to be paid owing to a lack of funds in the Nongovernmental Account.
C. Liquidation Preference. (i) In the event of any liquidation,
dissolution or winding up of the Partnership or the General Partner, whether
voluntary or involuntary, before any payment or distribution of the assets of
the Partnership shall be made to or set apart for the holders of Junior Units,
the General Partner, in its capacity as the holder of the Series B Pass-Through
Preferred Units, shall be entitled to receive Twenty-Five Dollars ($25.00) per
Series B Pass-Through Preferred Unit (the "Liquidation Preference") plus an
amount equal to all distributions (whether or not earned or declared) accrued
and unpaid thereon to the date of final distribution to the General Partner, in
its capacity as such holder; but the General Partner, in its capacity as the
holder of Series B Pass-Through Preferred Units, shall not be entitled to any
further payment. If, upon any such liquidation, dissolution or winding up of the
Partnership or the General Partner, the assets of the Partnership, or proceeds
thereof, distributable to the General Partner, in its capacity as the holder of
Series B Pass-Through Preferred Units, shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other Parity
Units, then such assets, or the proceeds thereof, shall be distributed among the
General Partner, in its capacity as the holder of such Series B Pass-Through
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 B
Pass-Through Preferred Units and any such other Parity Units if all amounts
payable thereon were paid in full. For the purposes of this Section C, (i) a
consolidation or merger of the Partnership or the General Partner with one or
more entities, (ii) a statutory share exchange by the Partnership or the General
Partner and (iii) a sale or transfer of all or substantially all of the
Partnership's or the General Partner's assets, shall not be deemed to be a
liquidation, dissolution or winding up, voluntary or involuntary, of the 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 B Pass-Through Preferred Units upon any
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liquidation, dissolution or winding up of the General Partner or the
Partnership, after payment shall have been made in full to the General Partner,
in its capacity as the holder of the Series B Pass-Through Preferred Units, as
provided in this Section, any series or class or classes of Junior Units shall,
subject to any respective terms and provisions applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the General
Partner, in its capacity as the holder of the Series B Pass-Through Preferred
Units, shall not be entitled to share therein.
D. Redemption of the Series B Pass-Through Preferred Units. (i)
Except in connection with the redemption of the Series B Preferred Shares by the
General Partner as permitted by Article VI of the Declaration of Trust, the
Series B Pass-Through Preferred Units shall not be redeemable prior to March 17,
2004. On and after March 17, 2004, the General Partner may, at its option, cause
the Partnership to redeem the Series B Pass-Through Preferred Units for cash, in
whole or in part, as set forth herein, subject to the provisions described
below.
(ii) The Series B Pass-Through Preferred Units may be redeemed, in whole
or in part, at the option of the General Partner, in its capacity as the holder
of the Series B Pass-Through Preferred Units, at any time, provided that the
General Partner shall redeem an equivalent number of Series B Preferred Shares.
Such redemption of Series B Pass-Through Preferred Units shall occur
substantially concurrently with the redemption by the General Partner of such
Series B Preferred Shares (the "Redemption Date").
(iii) Upon redemption of Series B Pass-Through Preferred Units by the
General Partner on the Redemption Date, each Series B Pass-Through Preferred
Unit so redeemed shall be converted into the right to receive Twenty-Five
Dollars ($25.00) per Series B Pass-Through Preferred Unit, plus any accrued and
unpaid distributions with respect to the Series B Pass-Through Preferred Units
to the Redemption Date (the "Redemption Price"). The Redemption Price of the
Series B Pass-Through Preferred Units (other than any portion consisting of
accrued and unpaid distributions) shall be payable solely with the proceeds from
the sale by the General Partner or the Partnership of other capital shares of
the General Partner or the Operating Partnership (whether or not such sale
occurs concurrently with such 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 or the Operating Partnership.
Upon any redemption of Series B Pass-Through Preferred Units, the
Partnership shall pay any accrued and unpaid distributions in arrears for any
Distribution Period ending on or prior to the Redemption Date. If the Redemption
Date falls after a Dividend Payment Record Date and prior to the corresponding
Dividend Payment Date, then the General Partner, in its capacity as the holder
of Series B Pass-Through Preferred Units, shall be entitled to distributions
payable on the equivalent number of Series B Pass-Through Preferred Units as the
number of the Series B Preferred Shares with respect to which the General
Partner shall be required, pursuant to the terms of the Declaration of Trust, to
pay to the holders of Series B Preferred Shares at the close of business on such
Dividend Payment Record Date for the Series B Preferred Shares who, pursuant to
such Declaration of Trust, are entitled to the dividend payable on such Series B
Preferred Shares on the corresponding Dividend Payment Date notwithstanding the
redemption of such Series B Preferred Shares before such Dividend Payment Date.
Except as provided above, the Partnership shall make no payment or allowance for
unpaid distributions, whether or not in arrears, on Series B Pass-Through
Preferred Units called for redemption.
(iv) If full cumulative distributions on the Series B Pass-Through
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 B
Preferred Shares or shares of beneficial interest ranking on a parity with such
Series B Preferred Shares as
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permitted under Article VI of the Declaration of Trust, the Series B
Pass-Through Preferred Units may not be redeemed in part and the Partnership may
not purchase, redeem or otherwise acquire Series B Pass-Through Preferred Units
or any Parity Units other than in exchange for Junior Units.
As promptly as practicable after the surrender of the certificates for
any such Series B Pass-Through Preferred Units so redeemed, such Series B
Pass-Through Preferred Units shall be exchanged for the cash (without interest
thereon) for which such Series B Pass-Through Preferred Units have been
redeemed. If fewer than all the Series B Pass-Through Preferred Units
represented by any certificate are redeemed, then new certificates representing
the unredeemed Series B Pass-Through Preferred Units shall be issued without
cost to the holder thereof.
E. Conversion. The Series B Pass-Through Preferred Units are not
convertible into or exchangeable for any other property or securities of the
General Partner or the Trust at the option of any holder of Series B
Pass-Through Preferred Units, except as provided in Section D hereof.
F. Ranking. Any class or series of Partnership Units shall be deemed
to rank:
(a) prior to the Series B Pass-Through Preferred Units, as to the payment
of distributions and as to distribution of assets upon liquidation, dissolution
or winding up of the General Partner or the Partnership, if the holders of such
class or series of Preferred Units shall be entitled to the receipt of
distributions or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the holders of
Series B Pass-Through Preferred Units;
(b) on a parity with the Series B Pass-Through 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 B
Pass-Through Preferred Units, if the holders of such Partnership Units of such
class or series and the Series B 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 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 B Pass-Through 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 Common Partnership Units or if the
General Partner, in its capacity as the holder of Series B Pass-Through
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, and such class or series of Partnership Units shall not in either case
rank prior to the Series B Pass-Through Preferred Units ("Junior Units").
G. Voting. Except as required by law, the General Partner, in its
capacity as the holder of the Series B Pass-Through 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.
So long as any Series B Pass-Through Preferred Units are outstanding, the
General Partner shall not authorize the creation of Partnership Units of any new
class or series or any interest in the Partnership convertible, exchangeable or
redeemable into Partnership Units of any new class or series ranking prior to
the Series B Pass-Through Preferred Units in the distribution of assets on any
liquidation, dissolution or
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winding up of the General Partner or the Partnership or in the payment of
distributions unless such Partnership Units are issued to the General Partner
and the distribution and redemption (but not voting) rights of such Partnership
Units are substantially similar to the terms of securities issued by the General
Partner and the proceeds or other consideration from the issuance of such
securities have been or are concurrently with such issuance contributed to the
Partnership.
H. Restrictions on Ownership and Transfer. The Series B Pass-Through
Preferred Units shall be owned and held solely by the General Partner.
I. General. (I) The rights of the General Partner, in its capacity as
the holder of the Series B Pass-Through Preferred Units, are in addition to and
not in limitation on any other rights or authority of the General Partner, in
any other capacity, under the Agreement. In addition, nothing contained in this
Exhibit M shall be deemed to limit or otherwise restrict any rights or authority
of the General Partner under the Agreement, other than in its capacity as the
holder of the Series B Pass-Through 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 B
Pass-Through Preferred Units) to ensure that the Series B Pass-Through 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 B
Preferred Shares) with respect to the Series B Preferred Shares, it being the
intention that the terms of the Series B Pass-Through Preferred Units shall be
substantially similar to the terms of the Series B Preferred Shares.
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Attachment 2
[Superseded; see Attachment 2 to Exhibit 3.4 to this Current Report on
Form 8-K.]