Exhibit 10.38
Amended and
Restated Fourth Amendment to the
First Amended and
Restated Agreement
of Limited
Partnership
of
SL Green
Operating Partnership, L.P.
This Amended and Restated Fourth
Amendment (this “Amendment”) is made as of July 15,
2004 by SL Green Realty Corp., a Maryland corporation, as managing
general partner (the “ Company ” or the “
Managing General Partner ”) of SL Green Operating
Partnership, L.P., a Delaware limited partnership (the “
Partnership ”), and as attorney-in-fact for the
Persons named on Exhibit A to the First Amended and Restated
Agreement of Limited Partnership of SL Green Operating Partnership,
dated as of August 20, 1997, as amended from time to time,
(the “ Partnership Agreement ”) for the purpose
of amending the Partnership Agreement. Capitalized terms used
herein and not defined shall have the meanings given to them in the
Partnership Agreement.
WHEREAS, the Board of Directors of
the Company (the “ Board ”), by action at a
meeting on April 7, 2004 and by action of the Pricing
Committee of the Board on April 28, 2004 and July 9,
2004 pursuant to delegated authority, classified and
designated shares of Preferred Stock (as defined in the Articles of
Incorporation of the Company (the “ Charter ”))
as Series D Preferred Stock (as defined below);
WHEREAS, the Board filed Articles
Supplementary to the Charter (the “ Original Articles
Supplementary ”) with the State Department of Assessments
and Taxation of Maryland on May 20, 2004 establishing the
Series D Preferred Stock, and filed Articles Supplementary to
the Charter (the “ Revised Articles Supplementary
” and, together with the Original Articles Supplementary, the
“ Articles Supplementary ”) with the State
Department of Assessments and Taxation of Maryland on July 13, 2004
in order to increase the authorized number of shares of Series D
Preferred Stock, with such preferences, rights, voting powers,
restrictions, limitations as to distributions, qualifications and
terms and conditions of redemption as described in the Articles
Supplementary;
WHEREAS, on May 27, 2004 and July
15, 2004, the Company issued 2,450,000 shares and 1,550,000 shares,
respectively, of the Series D Preferred Stock;
WHEREAS, the Managing General
Partner has determined that, in connection with the issuance of the
Series D Preferred Stock, it is necessary and desirable to
amend the Partnership Agreement to create additional Partnership
Units (as defined in the Partnership Agreement) having
designations, preferences and other rights which are substantially
the same as the economic rights of the Series D Preferred
Stock.
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the
Managing General Partner hereby amends the Partnership Agreement as
follows:
1.
Article 1 of the Partnership Agreement is hereby amended by
adding the following definitions:
“ Series D Preferred
Stock ” means the 7.875% Series D Cumulative
Redeemable Preferred Stock of the Company, with such preferences,
rights, voting powers, restrictions, limitations as to
distributions, qualifications and terms and conditions of
redemption as described in the Articles Supplementary;
and
“ Series D Preferred
Units ” means the series of Partnership Units established
pursuant to this Amendment, representing units of Limited
Partnership Interest designated as the 7.875% Series D
Cumulative Redeemable Preferred Units, with the preferences,
rights, voting powers, restrictions, limitations as to
distributions, qualifications and terms and conditions of
redemption of units as described herein; and
2.
In accordance with Section 4.02.A of the Partnership
Agreement, set forth below are the terms and conditions of the
Series D Preferred Units hereby established and issued to the
Company in consideration of the Company’s contribution to the
Partnership of the net proceeds following the issuance and sale of
the Series D Preferred Stock by the Company:
A.
Designation and Number . A series of Partnership
Units, designated as Series D Preferred Units, has been
established. The number of Series D Preferred Units is
hereby increased from 2,760,000 to 4,000,000.
B.
Rank . The Series D Preferred Units, with
respect to rights to the payment of dividends and the distribution
of assets upon the liquidation, dissolution or winding up of the
Partnership, rank (a) senior to the Class A Units,
Class B Units and all Partnership Interests issued by the
Partnership the terms of which specifically provide that such
Partnership Interests rank junior to the Series D Preferred
Units; (b) on a parity with the 7.625% Series C
Cumulative Redeemable Preferred Units and all Partnership Interests
issued by the Partnership the terms of which specifically provide
that such Partnership Interests rank on a parity with the
Series D Preferred Units; and (c) junior to all
Partnership Interests issued by the Partnership the terms of which
specifically provide that such Partnership Interests rank senior to
the Series D Preferred Units.
C.
Distributions .
(i)
Pursuant to Section 5.01 of the Partnership Agreement but
subject to the rights of holders of any Units ranking senior to the
Series D Preferred Units as to the payment of distributions,
the Managing General Partner, in its capacity as the holder of the
then outstanding Series D Preferred Units, shall be entitled
to receive, when, as and if authorized by the Managing General
Partner, out of Available Cash, cumulative quarterly preferential
cash distributions in an amount per unit equal to 7.875% of the
$25.00 liquidation preference per annum (equivalent to a fixed
annual amount of $1.96875 per unit). Distributions on the
Series D Preferred Units shall accrue and be fully cumulative
from the date of original issuance and shall be payable quarterly
when, as and if authorized by the Managing General Partner, in
equal amounts in arrears on the fifteenth day of each July,
October, January and April or, if not a business day, the next
succeeding business day (each, a “ Series D Preferred
Unit Distribution Payment Date ”). Any distribution
(including the initial distribution) payable on the Series D
Preferred Units for any partial distribution period shall be
prorated and computed on the basis of a 360-day year consisting of
twelve 30-day months. Distribution period shall mean the
period from and the date of original issuance and ending on and
excluding the next Series D Preferred Unit Distribution
Payment Date, and each subsequent period from but including such
Series D Preferred Unit Distribution Payment Date and ending
on and excluding the next following Series D Preferred Unit
Distribution Payment Date.
(ii) &n
