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)           No
distribution on the Series D Preferred Units shall be authorized by the
Managing General Partner or declared or paid or set apart for payment by the
Partnership at such time as the terms and provisions of any agreement of the
Managing General Partner or the Partnership, including 


 


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any agreement relating to
its indebtedness, prohibits such authorization, declaration, payment or setting
apart for payment or provides that such authorization, declaration, payment or
setting apart for payment would constitute a breach thereof, or a default
thereunder, or if such authorization, declaration, payment or setting apart for
payment shall be restricted or prohibited by law.  No interest, or sum of money in lieu of
interest, shall be payable in respect of any distribution payment or payments
on the Series D Preferred Units which may be in arrears.


(iii)          Notwithstanding the foregoing,
distributions with respect to the Series D Preferred Units shall
accumulate whether or not any of the foregoing restrictions exist, whether or
not there is sufficient Available Cash for the payment thereof and whether or
not such distributions are authorized. 
Accumulated but unpaid distributions on Series D Preferred Units
shall not bear interest and holders of the Series D Preferred Units shall
not be entitled to any distributions in excess of full cumulative
distributions.  Any distribution payment
made on the Series D Preferred Units shall first be credited against the
earliest accumulated but unpaid distribution due with respect to such units
which remains payable.


(iv)          Except as provided in subsection
2.C.(iv), unless full cumulative distributions have been or contemporaneously
are declared and paid or authorized, declared and a sum sufficient for the
payment thereof set apart for such payment on the Series D Preferred Units
for all past distribution periods and the then current distribution period, no
distributions (other than in Partnership Interests ranking junior to the
Series D Preferred Units as to the payment of dividends and the
distribution of assets upon any liquidation, dissolution or winding up of the
Partnership) shall be authorized, declared or paid or set apart for payment nor
shall any other distribution be authorized, declared or made upon the
Class A Units, the Class B Units, or any other Partnership Interests
ranking, as to the payment of distributions or the distribution of assets upon
any liquidation, dissolution or winding up of the Partnership, junior to or on
a parity with the Series D Preferred Units for any period, nor shall any
Class A Units, Class B Units, or any other Partnership Interests
ranking junior to or on a parity with the Series D Preferred Units as to
the payment of distributions or the distribution of assets upon any
liquidation, dissolution or winding up of the Partnership, be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such Partnership
Interests) by the Partnership (except by conversion into or exchange for
Partnership Interests ranking junior to the Series D Preferred Units as to
the payment of distributions and the distribution of assets upon any
liquidation, dissolution or winding up of the affairs of the Partnership).


(v)           When distributions are not paid in
full (or a sum sufficient for such full payment is not so set apart) upon the
Series D Preferred Units and any other Partnership Interests ranking on a
parity as to the payment of distributions with the Series D Preferred
Units, all distributions authorized and declared upon the Series D
Preferred Units and any other Partnership Interests ranking on a parity as to
the payment of distributions with the Series D Preferred Units shall be
declared pro rata so that the amount of distributions authorized and declared
per Series D Preferred Unit and such other Partnership Interests shall in
all cases bear to each other the same ratio that accumulated distributions per
each Series D Preferred Unit and such other Partnership Interests (which
shall not include any accumulation in respect of unpaid distributions for prior
distribution periods if such other Partnership Interests do not have a
cumulative distribution) bear to each other.


(vi)          Holders
of Series D Preferred Units shall not be entitled to any distribution,
whether payable in cash, property or Partnership Interests, in excess of full
cumulative distributions on the Series D Preferred Units as described
above.  Accrued but unpaid distributions
on the Series D Preferred Units will accumulate as of the Series D
Preferred Units Distribution Payment Date on which they first become payable.


 


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D.            Allocations.


Allocations of the
Partnership’s items of income, gain, loss and deduction shall be allocated
among holders of Series D Preferred Units in accordance with
Article VI of the Partnership Agreement.


E.             Liquidation Preference.


(i)            In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Partnership, the
Managing General Partner, in its capacity as holder of the Series D
Preferred Units, shall be entitled to receive out of the assets of the
Partnership available for distribution to the Partners pursuant to
Section 13.02.A of the Partnership Agreement a liquidation preference of
$25.00 per Series D Preferred Unit, plus an amount equal to any
accumulated and unpaid distributions (whether or not earned or authorized) to
the date of payment, before any distribution of assets is made to holders of
Class A Units, Class B Units or any other Partnership Interests that
rank junior to the Series D Preferred Units as to the distribution of
assets upon the liquidation, dissolution or winding up of the Partnership, but
subject to the preferential rights of the holders of Partnership Interests
ranking senior to the Series D Preferred Units as to the distribution of
assets upon the liquidation, dissolution or winding up of the Partnership.


(ii)           If upon any such voluntary or
involuntary liquidation, dissolution or winding up of the Partnership, the
assets of the Partnership legally available for distribution to its Partners
are insufficient to make such full payment to the Managing General Partner, in
its capacity as the holder of the Series D Preferred Units, and the
corresponding amounts payable on all other Partnership Interests ranking on a
parity with the Series D Preferred Units as to the distribution of assets
upon the liquidation, dissolution or winding up of the Partnership, then the
Managing General Partner, in its capacity as the holder of the Series D
Preferred Units, and all other holders of such Partnership Interests shall
share ratably in any such distribution of assets in proportion to the full
liquidating distributions (including, if applicable, accumulated and unpaid
distributions) to which they would otherwise be respectively entitled.


(iii)          After payment of the full amount of
the liquidating distributions to which they are entitled, the Managing General
Partner, in its capacity as the holder of the Series D Preferred Units,
shall have no right or claim to any of the remaining assets of the Partnership.


(iv)          None of a consolidation or merger of
the Partnership with or into another entity, a merger of another entity with or
into the Partnership, a statutory unit exchange by the Partnership or a sale,
lease or conveyance of all or substantially all of the Partnership’s property
or business shall be considered a liquidation, dissolution or winding up of the
affairs of the Partnership.


F.             Redemption.


In connection with the redemption by the Company of any of shares of
Series D Preferred Stock in accordance with the provisions of the Articles
Supplementary, the Partnership shall provide cash to the Company for such
purpose which shall be equal to the redemption price (as set forth in the
Articles Supplementary), plus all distributions accumulated and unpaid to the
Redemption Date (as defined in the Articles Supplementary) (or, as applicable,
the accumulated and unpaid distribution payable pursuant to
Section 6(b)(iv) of the Articles Supplementary), and one Series D
Preferred Unit shall be concurrently redeemed with respect to each share of
Series D Preferred Stock so redeemed by the Company.  From and after the applicable Redemption Date
(as defined in the Articles Supplementary), the Series D Preferred Units
so redeemed shall no longer be outstanding and all rights hereunder, to
distributions or otherwise, with respect to such Series D Preferred Units
shall cease.  Any Series D Preferred
Units so redeemed may be reissued to the Managing General Partner at such time
as the Managing General Partner reissues a


 


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corresponding
number of shares of Series D Preferred Stock so redeemed or repurchased,
in exchange for the contribution by the Managing General Partner to the
Partnership of the proceeds from such reissuance.


G.            Voting Rights.


Except as required by applicable law, the Managing
General Partner, in its capacity as the holder of the Series D Preferred
Units, shall have no voting rights.


H.            Conversion.


The Series D
Preferred Units are not convertible into or exchangeable for any other property
or securities of the Partnership.


I.              Restriction on Ownership.


The Series D
Preferred Units shall be owned and held solely by the Managing General Partner.


3.             Except as modified herein, all
terms and conditions of the Partnership Agreement shall remain in full force
and effect, which terms and conditions the Managing General Partner hereby
ratifies and confirms.


4.             This Amendment shall be construed
and enforced in accordance with and governed by the laws of the State of
Delaware, without regard to conflicts of law.


5.             If any provision of this Amendment
is or becomes invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not be affected thereby.


 


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IN WITNESS WHEREOF, the
undersigned have executed this Amendment as of the date first set forth above.


	
   

  	
   

  	
   

  
	
   

  	
  SL
  GREEN REALTY CORP.,

  
	
   

  	
  a
  Maryland corporation, as Managing General

  
	
   

  	
  Partner
  of SL Green Operating

  
	
   

  	
  Partnership
  and on behalf of existing

  
	
   

  	
  Limited
  Partners

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  



 


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