Exhibit 10.1
SL GREEN OPERATING PARTNERSHIP, L.P.
Fifth Amendment to
First Amended and Restated Agreement of Limited
Partnership
This Amendment is made as of March
15, 2006, by SL GREEN REALTY CORP., a Maryland corporation, as
general partner (the “ General Partner ”), of SL
GREEN OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
(the “ Partnership ”), for the purpose of
amending the First Amended and Restated Agreement of Limited
Partnership of the Partnership dated August 20, 1997 (the “
Partnership Agreement ”). All capitalized terms used
herein and not defined shall have the respective meanings ascribed
to them in the Partnership Agreement.
WHEREAS, the Partnership desires to
provide for equity incentives to certain persons who provide
services for the benefit of the Partnership (“
Grantees ”) in the form of Partnership Units which
shall be designated “LTIP Units.”
WHEREAS, pursuant to Section 4.2.A
of the Partnership Agreement, the Partnership is issuing LTIP Units
to the Grantees.
WHEREAS, pursuant to Sections 4.2.A,
5.4, 6.2, 8.6.E and 14.1.B the General Partner is amending the
Partnership Agreement to facilitate the issuance of the LTIP
Units.
NOW, THEREFORE, in consideration of
the mutual covenants set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the General Partner hereby amends the
Agreements as follows:
1.
Issuance of
LTIP Units .
A.
Pursuant to
Section 4.2.A of the Partnership Agreement, the Partnership hereby
issues 750,000 LTIP Units to the Grantees
in the respective amounts set forth on Schedule A hereto. The holder of any
LTIP Units shall have the benefits and obligations under the
Partnership Agreement to which the holder of such a Limited Partner
Interest may be entitled or obliged under the Partnership
Agreement, as supplemented and amended by the rights, powers,
privileges, restrictions, qualifications and limitations specified
in Exhibit G to the Partnership Agreement as added by this
Amendment.
B.
The admission of
the Grantees as Additional Limited Partners of the Partnership
shall become effective as of the date of this Amendment, which
shall also be the date upon which the names of the Grantees are
recorded on the books and records of the Partnership, and Exhibit A
to the Partnership Agreement is amended to reflect such
admission.
2.
Amendments to
Partnership Agreement .
The General Partner, as general
partner of the Partnership and as attorney-in-fact for its Limited
Partners, hereby amends the Partnership Agreement as
follows:
A.
Article 1 of the
Partnership Agreement is amended by inserting the following
definitions in alphabetical order:
“ Class A Unit Economic
Balance ” has the meaning set forth in Section
6.1.E.
“ Economic Capital Account
Balance ” has the meaning set forth in Section
6.1.E.
“ LTIP Units ”
means the Partnership Units designated as such having the rights,
powers, privileges, restrictions, qualifications and limitations
set forth in Exhibit G hereto.
B.
Section 4.2.C of
the Partnership Agreement is amended by replacing the text thereof
with the following:
C.
Classes of Partnership
Units . From and after
the Effective Date, subject to Section 4.2.A above, the Partnership
shall have two classes of Partnership Units, entitled “Class
A Units” and “Class B Units.” From and
after March 15, 2006, the Partnership shall have an additional
class of Partnership Units, entitled “LTIP
Units.” Either Class A Units or Class B Units, at the
election of the General Partner, in its sole and absolute
discretion, may be issued to newly admitted Partners in exchange
for the contribution by such Partners of cash, real estate
partnership interests, stock, notes or other assets or
consideration, provided that, any Partnership Unit that is not
specifically designated by the General Partner as being of a
particular class shall be deemed to be a Class A Unit.
C.
Section 4.2 of
the Partnership Agreement is amended by appending the following new
paragraph D:
D.
Issuance of LTIP Units
. From time to time the General
Partner may issue LTIP Units to Persons providing services to or
for the benefit of the Partnership. LTIP Units shall have the
rights, powers, privileges, restrictions, qualifications and
limitations specified in Exhibit G hereto. LTIP Units are intended
to qualify as profits interests in the Partnership and for the
avoidance of doubt, the provisions of Section 4.4 shall not apply
to the issuance of LTIP Units.
D.
Section 5.1.A of
the Partnership Agreement is amended by replacing the text of the
first sentence thereof with the following:
A.
General . The General Partner shall distribute at least
quarterly an amount equal to one hundred percent (100%) of
Available Cash generated by the Partnership during such quarter or
shorter period to the Partners who are Partners on the Partnership
Record Date with respect to such quarter or shorter period as
provided in Sections 5.1.B, 5.1.C and 5.1.D below.
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E.
Sections 5.1.C
and 5.1.D of the Partnership Agreement are amended by appending the
following sentence to each such Section:
For purposes of the foregoing
calculations, LTIP Units with an associated Distribution
Participation Date (as defined in Exhibit G hereto) that falls on
or before the date of the relevant distribution shall be treated as
outstanding Class A Units.
F.
Section 5.1 of
the Partnership Agreement is amended by appending the following new
paragraph F:
F.
LTIP Units Intended to Qualify as
Profits Interests. Distributions made pursuant to this Section 5.1
shall be adjusted as necessary to ensure that the amount
apportioned to each LTIP Unit does not exceed the amount
attributable to items of Partnership income or gain realized after
the date such LTIP Unit was issued by the Partnership. The intent
of this Section 5.1.F is to ensure that any LTIP Units issued after
the date of this Agreement qualify as “profits
interests” under Revenue Procedure 93-27, 1993-2 C.B. 343
(June 9, 1993) and Revenue Procedure 2001-43, 2001-2 C.B. 191
(August 3, 2001), and Section 5.1 shall be interpreted and applied
consistently therewith. The General Partner at its discretion may
amend this Section 5.1.F to ensure that any LTIP Units granted
after the date of this Agreement will qualify as “profits
interests” under Revenue Procedure 93-27, 1993-2 C.B. 343
(June 9, 1993) and Revenue Procedure 2001-43, 2001-2 C.B. 191
(August 3, 2001) (and any other similar rulings or regulations that
may be in effect at such time).
G.
Section 6.1 of
the Partnership Agreement is amended by appending the following new
paragraph E:
E.
Special Allocations With Respect
to LTIP Units . After
giving effect to the special allocations set forth in Section 1 of
Exhibit C hereto, and notwithstanding the provisions of Sections
6.1.A and 6.1.B above, but subject to the prior allocation of
income and gain under clauses 6.1.A(i) through (v) above, any
Liquidating Gains shall first be allocated to the holders of LTIP
Units until the Economic Capital Account Balances of such holders,
to the extent attributable to their ownership of LTIP Units, are
equal to (i) the Class A Unit Economic Balance, multiplied by
(ii) the number of their LTIP Units; provided that no
such Liquidating Gains will be allocated with respect to any
particular LTIP Unit unless and to the extent that such Liquidating
Gains, when aggregated with other Liquidating Gains realized since
the issuance of such LTIP Unit, exceed Liquidating Losses realized
since the issuance of such LTIP Unit. After giving effect to the
special allocations set forth in Section 1 of Exhibit C hereto, and
notwithstanding the provisions of Sections 6.1.A and 6.1.B above,
in the event that, due to distributions with respect to Class A
Units in which the LTIP Units do not participate or otherwise, the
Economic Capital Account Balance of any present or former holder of
LTIP Units, to the extent attributable to the holder’s
ownership of LTIP Units, exceeds the target balance specified
above, then
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Liquidating Losses shall be
allocated to such holder to the extent necessary to reduce or
eliminate the disparity. In the event that Liquidating Gains or
Liquidating Losses are allocated under this Section 6.1.E, Net
Income allocable under clause 6.1.A(vi) and any Net Losses shall be
recomputed without regard to the Liquidating Gains or Liquidating
Losses so allocated. For this purpose, “ Liquidating
Gains ” means any net capital gain realized in connection
with the actual or hypothetical sale of all or substantially all of
the assets of the Partnership, including but not limited to net
capital gain realized in connection with an adjustment to the
Carrying Value of Partnership assets under Section 1.D of Exhibit B
to this Agreement. Similarly, “ Liquidating Losses
” means any net capital loss realized in connection with any
such event. The “ Economic Capital Account Balances
” of the holders of LTIP Units will be equal to their Capital
Account balances, plus the amount of their shares of any Partner
Minimum Gain or Partnership Minimum Gain, in either case to the
extent attributable to their ownership of LTIP Units. Similarly,
the “ Class A Unit Economic Balance ” shall mean
(i) the Capital Account balance of the General Partner, plus the
amount of the General Partner’s share of any Partner Minimum
Gain or Partnership Minimum Gain, in either case to the extent
attributable to the General Partner’s ownership of Class A
Units and computed on a hypothetical basis after taking into
account all allocations through the date on which any allocation is
made under this Section 6.1.E, divided by (ii) the number of the
General Partner’s Class A Units. Any such allocations shall
be made among the holders of LTIP Units in proportion to the
amounts required to be allocated to each under this Section 6.1.E.
The parties agree that the intent of this Section 6.1.E is to make
the Capital Account balance associated with each LTIP Unit
economically equivalent to the Capital Account balance associated
with the General Partner’s Class A Units (on a per-unit
basis), but only if the Partnership has recognized cumulative net
gains with respect to its assets since the issuance of the relevant
LTIP Unit.
H.
Section 8.6.A of
the Partnership Agreement is amended by appending the following
clause (v):
(v)
Notwithstanding the foregoing, the
Redemption Right shall not be exercisable with respect to any Class
A Unit issued upon conversion of an LTIP Unit until on or after the
date that is two years after the date on which the LTIP Unit was
issued, provided however, that the foregoing restriction shall not
apply if the Redemption Right is exercised by a LTIP Unit holder in
connection with a transaction that falls within the definition of a
“change of control” under the agreement or agreements
pursuant to which the LTIP Units were issued to him or her and
provided further that the two (2) year requirement set forth in the
first sentence of Section 8.6.A(i) shall not apply with respect to
Class A Units issued upon conversion of LTIP Units.
I.
Section 10.2 of
the Partnership Agreement is amended by designating the existing
text of Section 10.2 as paragraph A, and by appending the following
new paragraph B:
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B.
To the extent provided for in
Treasury Regulations, revenue rulings, revenue procedures and/or
other IRS guidance issued after the date hereof, the Partnership is
hereby authorized to, and at the direction of the General Partner
shall, elect a safe harbor under which the fair market value of any
Partnership Interests issued after the effective date of such
Treasury Regulations (or other guidance) will be treated as equal
to the liquidation value of such Partnership Interests (i.e., a
value equal to the total amount that would be distributed with
respect to such interests if the Partnership sold all of its assets
for their fair market value immediately after the issuance of such
Partnership Interests, satisfied its liabilities (excluding any
non-recourse liabilities to the extent the balance of such
liabilities exceeds the fair market value of the assets that secure
them) and distributed the net proceeds to the Partners under the
terms of this Agreement). In the event that the Partnership makes a
safe harbor election as described in the preceding sentence, each
Partner hereby agrees to comply with all safe harbor requirements
with respect to transfers of such Partnership Interests while the
safe harbor election remains effective.
J.
Section 1.D(2) of
Exhibit B to the Partnership Agreement is amended by replacing the
text thereof with the following:
(2)
Such adjustments shall be made as of
the following times: (a) immediately prior to the
acquisition of an additional interest in the Partnership by any new
or existing Partner in exchange for more than a de minimis Capital
Contribution; (b) immediately prior to the acquisition of a more
than de minimis additional interest in the Partnership by any new
or existing Partner as consideration for the provision of services
to or for the benefit of the Partnership in a partner capacity or
in anticipation of becoming a partner; (c) immediately prior
to the distribution by the Partnership to a Partner of more than a
de minimis amount of property as consideration for an interest in
the Partnership; and (d) immediately prior to the liquidation
of the Partnership within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g) (except for a liquidation resulting from the
termination of the Partnership under Section 708(b)(1)(B) of the
Code), provided however that adjustments pursuant to
clauses (a), (b) and (c) above shall be made only if the
General Partner determines that such adjustments are necessary or
appropriate to reflect the relative economic interests of the
Partners in the Partnership.
K.
Section 1 of
Exhibit C to the Partnership Agreement is hereby amended by
appending the following new paragraph H:
H.
Forfeiture Allocations
. Upon a forfeiture of any unvested
Partnership Interest by any Partner, gross items of income, gain,
loss or deduction shall be allocated to such Partner if and to the
extent required by final Treasury Regulations promulgated after the
Effective Date to ensure that allocations made with respect to all
unvested Partnership Interests are recognized under Code Section
704(b).
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L.
The Partnership
Agreement is hereby amended by appending Exhibit G to this
Amendment as Exhibit G to the Partnership Agreement.
3.
Continuation
of Partnership Agreement .
The Partnership Agreement and this
Amendment shall be read together and shall have the same force and
effect as if the provisions of the Partnership Agreement and this
Amendment (including Exhibit G hereto) were contained in one
document. Any provisions of the Partnership Agreement not amended
by this Amendment shall remain in full force and effect as provided
in the Partnership Agreement immediately prior to the date
hereof.
[ Remainder of page
intentionally blank ]
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IN WITNESS WHEREOF, the parties
hereto have executed this Amendment to the Partnership Agreement as
of the
day of March, 2006.
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GENERAL PARTNER:
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SL GREEN REALTY CORP.
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By:
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Name:
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Title:
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GRANTEES:
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*Individual Counterpart Signature
Pages Attached.
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[Signature Page to Amendment to the Partnership
Agreement]
SL GREEN OPERATING PARTNERSHIP,
L.P.
Limited Partner Signature
Page
The undersigned, desiring to become
one of the within named Limited Partners of SL Green Operating
Partnership, L.P. (the “ Partnership ”) hereby
becomes a party to the First Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of August 20, 1997
and amended through the date hereof (the “ Partnership
Agreement ”), by and among SL Green Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page
may be attached to any counterpart of the Partnership
Agreement.
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Date:
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Name of Limited Partner (please
print)
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Signature
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Address
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Schedule A to Fifth Amendment to
Partnership Agreement
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Name and Address
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Number of LTIP Units
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EXHIBIT G
SL GREEN OPERATING PARTNERSHIP,
L.P.
DESIGNATION OF THE RIGHTS, POWERS,
PRIVILEGES,
RESTRICTIONS, QUALIFICATIONS AND
LIMITATIONS
OF THE LTIP UNITS
The following are the terms of the
LTIP Units:
1.
Vesting
.
A.
Vesting,
Generally . LTIP Units may, in the sole
discretion of the General Partner, be issued subject to vesting,
forfeiture and additional restrictions on transfer pursuant to the
terms of an award, vesting or other similar agreement (a “
Vesting Agreement ”). The terms of any Vesting
Agreement may be modified by the General Partner from time to time
in its sole discretion, subject to any restrictions on amendment
imposed by the relevant Vesting Agreement or by the terms of any
plan pursuant to which the LTIP Units are issued, if applicable.
LTIP Units that have vested and are no longer subject to forfeiture
under the terms of a Vesting Agreement are referred to as “
Vested LTIP Units ”; all other LTIP Units are referred
to as “ Unvested LTIP Units .” Subject to
the terms
