EXHIBIT 3.1
SUPPLEMENT TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
RECKSON OPERATING PARTNERSHIP, L.P.
ESTABLISHING
CLASS C COMMON UNITS
OF
LIMITED PARTNERSHIP INTEREST
In accordance with Sections 4.2 and 14.1 B(3) of the Amended and
Restated Agreement of Limited Partnership, dated as of June 2, 1995, as amended
on December 6, 1995, April 13, 1998, April 20, 1998, June 30, 1998, May 24,
1999, June 2, 1999 and October 13, 2000 (the "Partnership Agreement"), the
Partnership Agreement is hereby supplemented (the "Supplement") to establish a
class of 465,845 common units of limited partnership interest of Reckson
Operating Partnership, L.P. (the "Partnership") which shall be designated "Class
C Common Units" having the rights, powers, privileges and restrictions,
qualifications and limitations as set forth below and which shall be issued to
the parties and in the amounts set forth on Schedule A hereto. Capitalized terms
used and not otherwise defined herein shall have the meanings set forth in the
Partnership Agreement.
WHEREAS, the Partnership and 1055 Stamford Associates Limited
Partnership (the "Transferor") executed a Contribution and Conveyance Agreement,
dated August 7, 2003 (the "Contribution Agreement") pursuant to which Transferor
agreed to transfer all of its right, title and interest in the property known as
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Connecticut to the Partnership.
WHEREAS, pursuant to Section 4.2 of the Partnership Agreement, the
Partnership is issuing 465,845 Class C Common Units to the Transferor with the
rights, powers, privileges and restrictions, qualifications and limitations as
set forth below pursuant to the terms of the Contribution Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Issuance of Class C Common Units
--------------------------------
Pursuant to Section 4.2 of the Partnership Agreement, the Partnership
hereby issues 465,845 Partnership Interests (the "Class C Common Units") to the
parties and in the amounts set forth on Schedule A hereto. The Class C Common
Units shall have the rights, powers, privileges, restrictions, qualifications
and limitations (including, but not limited to, limitations on transfer) of
Limited Partners under the Partnership Agreement, as supplemented and amended by
the rights, powers, privileges, restrictions, qualifications and limitations
specified in Exhibit I hereto.
The admission of the Transferor as an Additional Limited Partner of the
Partnership shall become effective as of the date of this Supplement, which
shall also be the date upon which the name of the Transferor is recorded on the
books and records of the Partnership and Exhibit A to the Partnership Agreement
is amended to reflect such admission.
Section 2. Amendment to Partnership Agreement.
-----------------------------------
Pursuant to Section 14.1.B(3) of the 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 hereby amended
by adding the following definition of "Class C Common Units":
"Class C Common Units" means the units of limited partnership
interest issued on August 7, 2003, in connection with the
consummation of the transactions set forth in the Contribution
and Conveyance Agreement, dated August 7, 2003, between the
Partnership and 1055 Stamford Associates Limited Partnership.
(b) Section 8.6A is hereby amended by adding the following
sentence to the end of Section 8.6A:
"Notwithstanding the foregoing, with respect to the Class C
Common Units issued in connection with the provisions of the
Supplement to this Agreement made as of August 7, 2003, the
Redemption Right shall not be exercisable until on or after
that date which is one year after the date of such Supplement
(or such other date as may be mutually agreed upon by the
General Partner and the Transferor)."
Section 3. Continuation of Partnership Agreement
-------------------------------------
The Partnership Agreement and this Supplement shall be read
together and shall have the same force and effect as if the provisions of the
Partnership Agreement and this Supplement (including Exhibit I hereto) were
contained in one document. Any provisions of the Partnership Agreement not
amended by this Supplement shall remain in full force and effect as provided in
the Partnership Agreement immediately prior to the date hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this
Supplement to the Partnership Agreement as of the 7th day of August, 2003.
GENERAL PARTNER:
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Co-Chief Executive Officer
EXISTING LIMITED PARTNERS:
By: Reckson Associates Realty Corp.,
as Attorney-in-Fact for the Limited Partners
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Co-Chief Executive Officer
CLASS C COMMON UNIT HOLDER:
1055 STAMFORD ASSOCIATES LIMITED PARTNERSHIP
By: 1055 Stamford Corporation, its general
partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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EXHIBIT I
RECKSON OPERATING PARTNERSHIP, L.P.
DESIGNATION OF THE RIGHTS, POWERS, PRIVILEGES,
RESTRICTIONS, QUALIFICATIONS AND LIMITATIONS
OF THE CLASS C COMMON LIMITED PARTNERSHIP UNITS
The following are the terms of the Class C Common Limited Partnership
Units established pursuant to this Supplement:
1. Number. The maximum number of authorized Class C Common Limited
Partnership Units (the "Class C Common Units") shall be 465,845.
2. Distributions.
(a) Commencing from the date on which the Class C Common Units are
first issued (the "Class C Issue Date"), for any quarterly period holders of the
Class C Common Units shall be entitled to receive, if, when and as authorized by
the General Partner out of funds legally available for the payment of
distributions, cash distributions in an amount per unit equal to the product of
the distribution payable on the Common Units for the corresponding quarterly
period times 1.0984 (the "Class C Distribution Amount"). Distributions on the
Class C Common Units, if authorized, shall be payable quarterly in arrears on
such dates as may be authorized by the General Partner (any such date, a
"Distribution Payment Date"). In addition, Class C Common Units shall be
entitled to receive, if, when and as authorized by the General Partner out of
funds or other property legally available for the payment of distributions, any
special, extraordinary or other distributions payable on the Common Units which
may be made from time to time in an amount per unit equal to the amount of any
special, extraordinary or other distributions payable on the Common Units.
Distributions will be payable to the holder of the Class C Common Units with
respect to the Class C Common Units held at the close of business on the
applicable record date, which shall be such date designated by the General
Partner for the payment of distributions that is not more than 30 nor less than
10 days prior to such Distribution Payment Date (each, a "Distribution Payment
Record Date"). With regard to any distribution to the Class C Common Units, the
Distribution Payment Date shall be the same date as the date fixed for the
payment of distributions to holders of Common Units and the Distribution Payment
Record Date shall be the same date set for the record date for holders of Common
Units. In the event that distributions to holders of Common Units for any period
are paid on other than a quarterly basis, for example, on a monthly basis, then
distributions to holders of the Class C Common Units shall also be paid on a
monthly basis. Notwithstanding anything appearing to the contrary in this
Section 2(a), the distribution to be paid on Class C Common Units to any holder
thereof on the Distribution Payment Date immediately following the Class C Issue
Date shall equal the product of the Class C Distribution Amount times a
fraction, the numerator of which shall equal the number of days during the
quarterly period preceding the initial Distribution Payment Record Date that the
Class C Common Units were outstanding and the denominator of which shall equal
the number of days in the quarterly period with respect to the quarter in which
such Class C Common Units are issued.
(b) No distributions on the Class C Common Units shall be
authorized by the General Partner or be paid or set apart for payment by the
Partnership at such time as the terms and provisions of any agreement of the
Partnership, including any agreement relating to its indebtedness, prohibits
such authorization, payment or setting apart for payment or provides that such
authorization, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such authorization or payment shall be
restricted or prohibited by law.
(c) Distributions on the Class C Common Units will be
noncumulative. If the General Partner does not authorize a distribution on the
Class C Common Units payable on any Distribution Payment Date while any Class C
Common Unit is outstanding, then the holder of the Class C Common Units will
have no right to receive a distribution for that Distribution Payment Date, and
the Partnership will have no obligation to pay a distribution for that
Distribution Payment Date with respect to the Class C Common Units.
(d) No distributions, whether in cash, securities or property, will
be authorized or paid or set apart for payment to holders of Common Units for
any period unless for each Class C Common Unit outstanding, a distribution equal
to the Class C Distribution Amount with respect to such period has been or
contemporaneously is authorized and paid or authorized and a sum sufficient for
the payment thereof is set apart for such payment to the holder of the Class C
Common Units for the then current distribution period.
(e) Except as provided herein, Class C Common Units shall not
entitle the holder thereof to receive any distribution made in respect of Common
Units.
(f) If the Partnership shall after the Class C Issue Date subdivide
its outstanding Common Units into a greater number of units, then Class C Common
Units outstanding on the record date for the determination of common unitholders
entitled to receive such distribution, shall be subdivided at a ratio equal to
the ratio for the subdivision of the Common Units. In addition, if the
Partnership shall after the Class C Issue Date combine its Common Units into a
smaller number of units, then on the day on which such combination becomes
effective, any outstanding Class C Common Units shall be combined into a smaller
number of Class C Common Units at a ratio equal to the ratio for the combination
of the Common Units.
(g) As used in this Section 2, "set apart for payment" shall be
deemed to include, without any further action, the following: the recording by
the Partnership in its accounting ledgers of any accounting or bookkeeping entry
which indicates, pursuant to an authorization of a distribution by the General
Partner, the allocation of funds to be so paid on any series or class of units
of the Partnership.
3. Ranking. The Class C Common Units shall rank on a parity with the
Common Units in all respects except with respect to the amount (but not the
priority) of distributions which shall be payable as provided in Section 2
hereof.
4. No Liquidation Preference.
The Class C Common Units shall have no liquidation preference.
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5. Conversion. Except as provided in Section 11 below, the Class C
Common Units are not convertible into any other property or securities of the
Partnership.
6. Redemption at the Option of the Partnership.
Class C Common Units will not be redeemable at the option of the
Partnership; provided, however, that the foregoing shall not prohibit the
Partnership from repurchasing Class C Common Units from the holder thereof if
and to the extent such holder agrees to sell such Units.
7. Voting Rights.
(a) Holders of Class C Common Units shall have the right to vote on
all matters submitted to a vote of the holders of Common Units; holders of Class
C Common Units and Common Units shall vote together as a single class, together
with any other class or series of units of limited partnership interest in the
Partnership upon which like voting rights have been conferred. In any matter in
which the Class C Common Units are entitled to vote, including an action by
written consent, each Class C Common Unit shall be entitled to one vote.
(b) In addition to, and not in limitation of, the provisions of
Section 7(a) above (and notwithstanding anything appearing to be contrary in the
Partnership Agreement) , the Company shall not, without the affirmative consent
of the holders of sixty-six and two-thirds percent (66 2/3%) of the then
outstanding Class C Common Units take any action that would materially and
adversely alter, change, modify or amend the rights, powers or privileges of the
Class C Common Units wherein such alteration, change, modification or amendment
would not similarly alter, change, modify or amend the rights, powers or
privileges of the Common Units; provided, however, that any alteration, change,
modification or amendment of the rights of holders of the Class C Common Units
to receive distributions as set forth in Section 2 hereof shall be deemed to be
a material and adverse alteration of the rights, powers or privileges of the
Class C Common Units hereunder.
8. Redemption at Xxxxxx's Election.
Holders of Class C Common Units shall have the right to redeem
their Class C Common Units in accordance with the Redemption Right pursuant to
Section 8.6 of the Agreement, on the same terms and subject to the same
conditions and limitations as holders of Common Units, including, without
limitation, the right of the holder to receive the Cash Amount upon the exercise
of the Redemption Right and the right of the General Partner to acquire, in its
sole and absolute discretion, any Class C Common Units that are redeemed in
accordance with the Redemption Right by paying to the Redeeming Partner either
the Cash Amount or the REIT Shares Amount. For purposes of clarification, it is
understood that the Cash Amount and the REIT Shares Amount at the date of this
Supplement are based upon a Conversion Factor of 1.0 and that such Conversion
Factor may be adjusted from time to time as provided in the Partnership
Agreement.
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9. Allocations for Capital Account Purposes.
For each Class C Common Unit, holders of Class C Common Units shall
be allocated items of the Partnership's Net Income or Net Loss in accordance
with Section 6.1 of the Partnership Agreement and in amounts equal to the
product of the amounts of such items allocated to holders of Common Units for
each Common Unit times 1.0984.
10. Certain Transactions.
If the Partnership shall be a party to any transaction (including,
without limitation, a merger, consolidation, statutory unit exchange, tender
offer for all or substantially all of the Common Units, sale or transfer of all
or substantially all of the Partnership's assets or recapitalization of the
Common Units or other similar transaction) (each of the foregoing being referred
to herein as a "Transaction"), in each case as a result of which upon
consummation of such Transaction holders of Common Units are to receive stock,
securities or other property (including cash or any combination thereof), the
Partnership or its successor in such Transaction (the "Surviving Entity") shall
make appropriate provision so that upon consummation of the Transaction each
Class C Common Unit shall be entitled to receive consideration in stock,
securities or other property (including cash or any combination thereof) on the
same terms and at the same exchange rate applicable to each Common Unit;
provided further, that if upon consummation of such Transaction holders of
Common Units are to receive, in whole or in part, limited partnership units or
similar interests in the Surviving Entity, each Class C Common Unit shall be
exchanged (at the same exchange rate applicable to the exchange of Common Units
into units of the Surviving Entity) for a separate class of limited partnership
units or similar interests in the Surviving Entity (the "Conversion Units") with
rights, privileges and other terms substantially identical to those of the Class
C Common Units, including, but not limited to, the Redemption Right and the
right to a distribution per Conversion Unit per quarter equal to the product of
the distribution payable per unit on the unit into which the Common Units were
exchanged for the corresponding quarterly period times 1.0984. For purposes of
clarification, the foregoing does not limit in any manner the consent rights of
holders of Class C Common Units under the Partnership Agreement.
11. Conversion of Class C Common Units upon Acquisition by General
Partner. In the event the General Partner acquires any of the Class C Common
Units in connection with the exercise by a holder of the Redemption Right, such
Class C Common Units acquired by the General Partner shall automatically be
converted into an equal number of Common Units.
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Schedule A
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Name and Address Number of Class C Common Units
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1055 Stamford Associates Limited Partnership 465,845
c/o Elder Associates
00 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxxxx 00000
Sch-A
