Exhibit
10.5


 


 


Third Amendment to the


 


First Amended and Restated Agreement


 


of Limited Partnership


 


of


 


SL Green Operating Limited Partnership, L.P.


 


This Amendment is
made as of December 12, 2003 by SL Green Realty Corp., a Maryland
corporation, as managing general partner (the “Company” or the “Managing
General Partner”) of SL Green Operating Limited 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 Limited
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
December 1, 2003 and by action of the Pricing Committee of the Board on
December 3, 2003 pursuant to delegated authority, classified and designated
6,440,000 shares of Preferred Stock (as defined in the Articles of
Incorporation of the Company (the “Charter”)) as Series C Preferred
Stock (as defined below);


 


WHEREAS,
the Board filed Articles Supplementary to the Charter (the “Articles
Supplementary”) with the State Department of Assessments and Taxation of
Maryland on December 10, 2003, establishing the Series C 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
December 12, 2003, the Company issued 6,300,000 shares of the
Series C Preferred Stock;


 


WHEREAS, the
Managing General Partner has determined that, in connection with the issuance
of the Series C 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 C
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 C
Preferred Stock” means the 7.625% Series C 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 C
Preferred Units” means the series of Partnership Units established pursuant
to this Amendment, representing units of Limited Partnership Interest
designated as the 7.625% Series C 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 C 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 C Preferred Stock by the Company:


 


A.                                   Designation
and Number.  A series of Partnership Units, designated as
Series C Preferred Units, is hereby established.  The number of Series C Preferred Units shall be 6,440,000.


 


B.                                     Rank.  The
Series C 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 C Preferred Units; (b) on a parity with all other
Partnership Interests issued by the Partnership the terms of which specifically
provide that such Partnership Interests rank on a parity with the Series C
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 C 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 C Preferred Units as to
the payment of distributions, the Managing General Partner, in its capacity as
the holder of the then outstanding Series C 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 7.625% of the $25.00 liquidation
preference per annum (equivalent to a fixed annual amount of $1.90625 per
unit).  Distributions on the
Series C 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 April, July, October and January or, if not a business
day, the next succeeding business day (each, a “Series C Preferred Unit
Distribution Payment Date”).  Any
distribution (including the initial distribution) payable on the Series C
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 C Preferred Unit Distribution Payment Date, and each
subsequent period from but including such Series C Preferred Unit
Distribution Payment Date and ending on and excluding the next following
Series C Preferred Unit Distribution Payment Date.


 


(ii)                                  No
distribution on the Series C 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 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 C Preferred Units which may be in arrears.


 


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Notwithstanding
the foregoing, distributions with respect to the Series C 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 C Preferred
Units shall not bear interest and holders of the Series C Preferred Units
shall not be entitled to any distributions in excess of full cumulative
distributions.  Any distribution payment
made on the Series C Preferred Units shall first be credited against the
earliest accumulated but unpaid distribution due with respect to such units
which remains payable.


 


(iii)                               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 C 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 C 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 C 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 C 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 C 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).


 


(iv)                              When
distributions are not paid in full (or a sum sufficient for such full payment
is not so set apart) upon the Series C Preferred Units and any other
Partnership Interests ranking on a parity as to the payment of distributions
with the Series C Preferred Units, all distributions authorized and
declared upon the Series C Preferred Units and any other Partnership Interests
ranking on a parity as to the payment of distributions with the Series C
Preferred Units shall be declared pro rata so that the amount of distributions
authorized and declared per Series C Preferred Unit and such other
Partnership Interests shall in all cases bear to each other the same ratio that
accumulated distributions per each Series C 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.


 


(v)                                 Holders
of Series C 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 C Preferred Units as described
above.  Accrued but unpaid distributions
on the Series C Preferred Units will accumulate as of the Series C
Preferred Units Distribution Payment Date on which they first become payable.


 


D.                                    Allocations.


 


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


 


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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 C 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 C 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 C 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 C 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 C
Preferred Units, and the corresponding amounts payable on all other Partnership
Interests ranking on a parity with the Series C 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 C 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 C 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 C
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 C
Preferred Unit shall be concurrently redeemed with respect to each share of
Series C Preferred Stock so redeemed by the Company.  From and after the applicable Redemption
Date (as defined in the Articles Supplementary), the Series C Preferred
Units so redeemed shall no longer be outstanding and all rights hereunder, to distributions
or otherwise, with respect to such Series C Preferred Units shall
cease.  Any Series C Preferred
Units so redeemed may be reissued to the Managing General Partner at such time
as the Managing General Partner reissues a corresponding number of shares of
Series C 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.


 


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G.                                     Voting
Rights.


 


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


 


H.                                    Conversion.


 


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


 


I.                                         Restriction
on Ownership.


 


The
Series C 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 Limited

  
	
   

  	
  Partnership and
  on behalf of existing

  
	
   

  	
  Limited Partners

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: