Exhibit 3.47
NINETEENTH
AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
VORNADO REALTY L.P.
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Dated as of July 1, 2002
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THIS NINETEENTH 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, 1998, 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, and the Tenth Amendment to Second Amended and
Restated Agreement of Limited Partnership of Vornado Realty L.P., dated as of
September 3, 1999, and the Eleventh Amendment to Second Amended and Restated
Agreement of Limited Partnership of Vornado Realty L.P., dated as of November
24, 1999, and the Twelfth Amendment to Second Amended and Restated Agreement of
Limited Partnership of Vornado Realty L.P., dated as of May 1, 2000, and the
Thirteenth Amendment to Second Amended and Restated Agreement of Limited
Partnership of Vornado Realty L.P., dated as of May 25, 2000, and the Fourteenth
Amendment to
Second Amended and Restated Agreement of Limited Partnership of Vornado Realty
L.P., dated as of December 8, 2000, and the Fifteenth Amendment to Second
Amended and Restated Agreement of Limited Partnership of Vornado Realty L.P.,
dated as of December 15, 2000, and the Sixteenth Amendment to Second Amended and
Restated Agreement of Limited Partnership of Vornado Realty L.P., dated as of
July 25, 2001, and the Seventeenth Amendment to Second Amended and Restated
Agreement of Limited Partnership of Vornado Realty L.P., dated as of September
21, 2001, and the Eighteenth Amendment to Second Amended and Restated Agreement
of Limited Partnership of Vornado Realty L.P., dated as of January 1, 2002 (as
so amended and as the same may be further amended, the "AGREEMENT").
WHEREAS, on May 17, 2002, the Partnership, the General Partner, Vornado
Crystal Gateway L.P. (the "Transaction Sub"), a Delaware limited partnership and
wholly-owned subsidiary of the Partnership, First Gateway Associates Limited
Partnership, a Virginia limited partnership ("FIRST GATEWAY"), and Xxxxxx X.
Xxxxx and Xxxxxx X. Xxxxx, each individually and as a general partner of First
Gateway, entered into a Contribution Agreement and Plan of Merger (the
"CONTRIBUTION AGREEMENT") pursuant to which the parties agreed to the conveyance
of certain property by First Gateway to the Partnership pursuant to the
Contribution Agreement and the Second Option Agreement, dated March 10, 1982, by
and among First Gateway Associates, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx and Boston
Safe Deposit and Trust Company, as trustee for the Xxxx System Trust, and
assigned to Lucent Technologies Inc. Master Pension Trust as of December 1, 2000
and further assigned to the Partnership as of March 6, 2002, such conveyance to
be consummated as either an asset transfer or a merger of the Transaction Sub
with and into First Gateway as set forth in the Contribution Agreement (the
"TRANSACTION");
WHEREAS, as a condition to the closing of the transactions contemplated
by the Contribution Agreement, the General Partner and the Partnership have
agreed to amend the Agreement to acknowledge the issuance of the First Gateway
Units (as defined below) and to make certain other related changes;
WHEREAS, in connection with the Transaction, the Partnership has agreed
to issue 325,728 additional Class A Units (such units, the "FIRST GATEWAY
UNITS") to First Gateway for distribution to the holders of partnership
interests in First Gateway;
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 issuance of the
First Gateway Units will not violate Section 4.2.E of the Agreement;
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 amendments
effected hereby do 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 as
requiring a particular minimum vote.
NOW, THEREFORE, the General Partner hereby amends the Agreement as
follows:
1. Section 4.2 of the Agreement is hereby supplemented by adding the
following paragraph to the end thereof:
"U. Issuance of First Gateway Units to First Gateway Unitholders.
(1) In connection with the conveyance of certain property by
First Gateway Associates Limited Partnership ("FIRST GATEWAY") to the
Partnership on July 1, 2002 pursuant to the Contribution Agreement,
dated as of May 17, 2002, by and among the General Partner, the
Partnership, Vornado Crystal Gateway L.P., a wholly-owned subsidiary of
the Partnership, First Gateway and Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxx,
each individually and as a general partner of First Gateway, as
modified by that certain Letter Agreement, dated June [26], 2002, from
the General Partner, the Partnership, Vornado Crystal Gateway L.P. [and
Xxxxxxx X. Xxxxx Commercial Realty L.P., a wholly-owned subsidiary of
the Operating Partnership ("CESCR"),] to First Gateway (the
"Contribution Agreement"), the Partnership issued 325,728 Class A Units
(such Units, the "FIRST GATEWAY UNITS") to First Gateway for
distribution to the holders of partnership interests in First Gateway
(the "FIRST GATEWAY UNITHOLDERS") as reflected on amended EXHIBIT A
attached hereto, subject to and in accordance with the terms of the
Contribution Agreement. Notwithstanding any other provision contained
in this Agreement, (i) holders from time to time of First Gateway Units
shall not participate in any distribution (whether cash, securities or
in any other form) constituting a "spin-off" of the Partnership's
investment in, or any of the assets of, Alexander's, Inc. or any of its
affiliates if the Partnership
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Record Date for determining partners entitled to participate therein is
on or before July 1, 2002 and (ii) upon the consummation (the "CLOSING
TIME") of the transfer by First Gateway of its equity interest, free
and clear of all liens or other encumbrances, in a special purpose
entity wholly owned by First Gateway, a distribution of First Gateway
Units to the holders of partnership interests in First Gateway and the
execution of a limited partner acceptance of partnership agreement by
each of the holders of the First Gateway Units satisfactory to the
General Partner, each of the limited partners of First Gateway listed
in the books and records of First Gateway immediately prior to the
Closing Time automatically shall be admitted to the Partnership as an
Additional Limited Partner, regardless of whether or not such Person
has executed this Agreement or a counterpart signature page hereto, and
without any further act, approval or vote of any Person. Each such
Additional Limited Partner shall, upon such admission, be subject to,
and bound by, this Agreement, including, without limitation, all of the
terms and conditions of this Agreement and the power of attorney
granted in Section 15.11 hereof.
(2) Except as expressly set forth in the third sentence of
this subsection (2), holders from time to time of the First Gateway
Units shall not be entitled to participate in any distributions in
respect of those Units for any period prior to their issuance and,
notwithstanding any provisions of Section 5.1.B of this Agreement to
the contrary, in the event that the First Gateway Units are issued on
or effective as of any date other than the first day of a period to
which a distribution is attributable, any distributions to be made to
holders of the First Gateway Units in respect of the distribution
period in which the date of issuance falls shall be prorated based on
the actual number of days in the entire period to which the
distribution is attributable and the number of days in the period that
the First Gateway Units were outstanding. For clarification, under
current practices the Partnership's regular quarterly distributions
made during any calendar quarter are attributable to the immediately
preceding calendar quarter. If, at any time after the date of issuance
of the First Gateway Units, the General Partner declares any
distribution in respect of Class A Units other than a regular quarterly
distribution (any such distribution, a "SPECIAL DISTRIBUTION"), the
Special Distribution is attributable to any period prior to the date of
issuance of the First Gateway Units and the Partnership Record Date for
determining partners entitled to participate in the distribution is on
or after the date of issuance of the First Gateway Units, then the
holders of First Gateway Units shall be entitled to participate in that
Special Distribution pro rata as if their First Gateway Units had been
outstanding for the entire period to which that Special Distribution is
attributable.
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(3) Section 8.6 of this Agreement is hereby irrevocably
modified with respect to all First Gateway Units such that for any
redemption of any such Units that will not qualify as either (A) a
"block transfer" within the meaning of Regulations Section
1.7704-1(e)(2) or any successor provision or (B) a transfer that falls
within the "lack of actual trading" safe harbor available in
Regulations Section 1.7704-1(j) or any successor provision (any such
redemption, a "NON-QUALIFYING REDEMPTION"), the waiting period
applicable to the Limited Partner between the date the Partnership
receives a Notice of Redemption for the Limited Partner and the
Specified Redemption Date and/or the Valuation Date shall be up to
sixty (60) days, as determined by the General Partner in its sole
discretion, and the General Partner shall have all requisite power and
authority to amend the provisions of Section 8.6 of this Agreement
applicable in respect of the First Gateway Units as it deems necessary
or appropriate to (x) increase the waiting period between the delivery
of a Notice of Redemption and the Specified Redemption Date and/or the
Valuation Date to up to sixty (60) days for any Non-Qualifying
Redemption and/or (y) implement any other amendment to this Agreement
intended to make the redemption and transfer provisions, with respect
to certain redemptions and transfers, more similar to the provisions
described in Regulations Section 1.7704-1(f). In furtherance of the
foregoing, each First Gateway Unitholder appoints the General Partner,
any Liquidator and any authorized officers of the General Partner and
attorneys-in-fact of each, and each of those acting singly, in each
case with full power of substitution, as its true and lawful agent and
attorney-in-fact, with full power and authority in its name, place and
stead, to execute and deliver any amendment referred to in the
foregoing sentence on such First Gateway Unitholder's behalf. The
foregoing power of attorney is hereby declared to be irrevocable and a
power coupled with an interest, and it shall survive and not be
affected by the death, incompetency, dissolution, disability,
incapacity, bankruptcy or termination of the First Gateway Unitholder
as a Limited Partner and shall extend to the heirs, executors,
administrators, legal representatives, successors and assigns.
(4) By accepting the First Gateway Units, each First Gateway
Unitholder covenants and agrees that it does not and will not while it
owns, directly or indirectly, equity interests in the Partnership with
an aggregate value equal to or exceeding five (5) percent of the total
value of the outstanding equity interests in the Partnership own,
either directly or under the attribution rules of Section 318(a) of the
Code (as modified by Section 856(d)(5) of the Code and using the
principles of Section 7704(d)(3)(B) of the Code in determining when
interests owned, directly or under the attribution rules, by a partner
in an entity that is treated as a partnership for federal tax purposes
are treated as owned by such entity), any equity interests in Vornado
Operating Company, Vornado Operating L.P., or any direct or indirect
tenant or subtenant of the Partnership or
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any of its subsidiaries (Vornado Operating Company, Vornado Operating
L.P., or any direct or indirect tenant or subtenant of the Partnership
or any of its subsidiaries, collectively, the "VORNADO TENANTS");
PROVIDED that the foregoing covenant shall not be treated as breached
by a Limited Partner unless at such time the ownership of equity
interests by such Limited Partner in one or more Vornado Tenants would
cause either (a) the General Partner to fail to qualify as a REIT for
purposes of Section 856 of the Code or (b) the Partnership to be
treated as a publicly traded partnership treated as a corporation under
Section 7704(a) of the Code. If at any time the Limited Partner would,
but for the provisions of this paragraph (4), own both (i) five (5)
percent or more (by value) of the outstanding equity interests in the
Partnership and (ii) an equity interest in one or more Vornado Tenants
in breach of the covenant set forth in the first sentence of this
Section 4.2.T.(4) (applied taking into account the proviso in the first
sentence of this Section 4.2.T.(4)), then, effective immediately prior
to such point in time, the smallest portion of the interests in the
Partnership owned (directly or indirectly) by the Limited Partner that
is necessary to cause such Limited Partner to be considered to own
(directly or indirectly) interests in the Partnership with a value that
is not in excess of four and nine tenths (4.9) percent of the value of
the Partnership's outstanding equity interests, shall become "EXCESS
UNITS". While interests in the Partnership are Excess Units, such
interests will be deemed to have been transferred by operation of law
to a trust (the "SPECIAL TRUST") for the exclusive benefit of an
organization described in Section 501(c)(3) of the Code and designated
by the General Partner. The Partnership, as trustee for the Special
Trust, shall be entitled to receive all distributions made in respect
of Excess Units. Any distributions made in respect of Excess Units
prior to the discovery that interests in the Partnership had become
Excess Units shall be repaid by the recipients thereof to the
Partnership as trustee of the Special Trust. The trustee shall exercise
all rights associated with interests in the Partnership that have
become Excess Units during the period that such interests are Excess
Units. The Partnership shall have the right to transfer the Excess
Units held in the Special Trust to any person. The Limited Partner (or
its successor) shall be entitled to receive, from the proceeds of such
a transfer, an amount not in excess of the lesser of (i) the fair
market value of the interests that became Excess Units on the date that
they became Excess Units and (ii) the net consideration received by the
Partnership for the transfer of the Excess Units after deducting any
expenses incurred by the Partnership in connection therewith. Excess
Units shall cease to be treated as Excess Units following such a
transfer and instead shall have the attributes that existed immediately
before becoming Excess Units. In the event that a liquidating
distribution is made in respect of Excess Units, the Limited Partner
(or its successor) shall be entitled to receive a portion of such
distribution not in excess of the fair market value of the interests
that became Excess Units on the date that
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they became Excess Units. The Partnership agrees that, if it becomes
aware that partnership interests held by a Limited Partner or any
person that owns ten (10) percent or more of the capital stock of the
Limited Partner (in the case of a Limited Partner that is a
corporation) or twenty five (25) percent or more of the capital or
profits interests of a Limited Partner (in the case of a Limited
Partner that is treated as a partnership for U.S. federal income tax
purposes) have become Excess Units, then it will make commercially
reasonable efforts to cause a transfer of such Excess Units as promptly
as practicable (PROVIDED, HOWEVER, that it shall not be required to
incur any material expense or expend any significant time or manpower
in such efforts). The Limited Partner has no liability under this
paragraph (4) for damages, monetary or otherwise, as a result of a
breach of the covenant under this paragraph (4) other than having its
interests become Excess Units under this paragraph (4) and, as a
result, being liable to pay over any distribution or other amounts
which the Limited Partner receives to which it is not entitled under
the Excess Units provisions of this paragraph (4). The General Partner
may, in its sole and absolute discretion exercised in good faith, take
any commercially reasonable and appropriate actions to enforce the
provisions of this paragraph (4).
(6) By accepting the First Gateway Units, each First Gateway
Unitholder covenants and agrees that it will not transfer any interest
in the Partnership (x) through (i) national, non-U.S., regional, local
or other securities exchange, (ii) PORTAL or (iii) an over-the-counter
market (including an interdealer quotation system that regularly
disseminates firm buy or sell quotations by identified brokers or
dealers by electronic means or otherwise) or (y) to or through (a) a
person, such as a broker or dealer, that makes a market in, or
regularly quotes prices for, interests in the Partnership or (b) a
person that regularly makes available to the public (including
customers or subscribers) bid or offer quotes with respect to any
interests in the Partnership and stands ready to effect transactions at
the quoted prices for itself or on behalf of others. The First Gateway
Unitholder represents and agrees that it is not, and without the prior
consent of the Partnership shall not become, a lender, or person
related to a lender within the meaning of Treasury Regulations Section
1.752-2(c), with respect to indebtedness of the Partnership or any of
the Partnership's direct or indirect noncorporate subsidiaries.
(5) To the extent that the provisions of Articles 7 and 8 of
the Tax Protection Agreement being entered into by the Partnership
concurrently with the issuance of the First Gateway Units (and the
related definitions in the Tax Protection Agreement and the related
Schedules to the Tax Protection Agreement), copies of which are
attached hereto as EXHIBIT X, address matters addressed in, and/or
provide for rights required to be provided for in Article VI and/or
EXHIBIT B
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and EXHIBIT C to the Agreement, the referenced portions of the Tax
Protection Agreement constitute amendments to Article VI and/or EXHIBIT
B and EXHIBIT C to the Agreement, as applicable, insofar as that
Article and/or EXHIBIT B and EXHIBIT C apply to the First Gateway
Units."
2. EXHIBIT A of the Agreement is hereby deleted and is replaced in its
entirety by new EXHIBIT A attached hereto as ATTACHMENT 1.
3. 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/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Executive Vice President -
Finance and Administration and
Chief Financial Officer
Acknowledged and agreed:
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, as a General
Partner of First Gateway and as
a Representative of each of the
persons receiving First Gateway
Units as described in Section 1
above.
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, as a General
Partner of First Gateway and as
a Representative of each of the
persons receiving First Gateway
Units as described in Section 1
above.
