GREYSTONE HOUSING IMPACT INVESTORS LP SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP

Exhibit 3.1

 

GREYSTONE HOUSING

IMPACT INVESTORS LP

SECOND AMENDED AND RESTATED

 

AGREEMENT OF LIMITED PARTNERSHIP

 

 

 

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TABLE OF CONTENTS

 

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ARTICLE I
DEFINED TERMS			2
ARTICLE II
NAME, PLACE OF BUSINESS, PURPOSE AND TERM
Section 2.01.		Name	10
Section 2.02.		Principal Office and Name and Address of Resident Agent	10
Section 2.03.		Purpose	10
Section 2.04.		Term	11
ARTICLE III
PARTNERS AND CAPITAL
Section 3.01.		General Partner	11
Section 3.02.		Limited Partner	11
Section 3.03.		Partnership Capital	12
Section 3.04.		Liability of Partners and BUC Holders	12
Section 3.05.		Splits and Combinations	13
Section 3.06.		Fully Paid and Non-Assessable Nature of Limited Partnership Interests	13
ARTICLE IV
DISTRIBUTIONS OF CASH; ALLOCATIONS OF INCOME AND LOSS
Section 4.01.		Distributions of Net Interest Income	14
Section 4.02.		Distributions of Net Residual Proceeds and of Liquidation Proceeds	14
Section 4.03.		Allocation of Income and Loss From Operations	14
Section 4.04.		Allocation of Income and Loss Arising From a Repayment, Sale or Liquidation	15
Section 4.05.		Determination of Allocations and Distributions Among Limited Partners and BUC Holders	15
Section 4.06.		Capital Accounts	16
Section 4.07.		Rights to Distributions	16
ARTICLE V
RIGHTS, OBLIGATIONS AND POWERS OF THE GENERAL PARTNER
Section 5.01.		Management of the Partnership	17

 

 

 

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Section 5.02.		Authority of the General Partner	17
Section 5.03.		Authority of General Partner and Its Affiliates To Deal With Partnership	20
Section 5.04.		General Restrictions on Authority of the General Partner	22
Section 5.05.		Compensation and Fees	23
Section 5.06.		Duties and Obligations of the General Partner	24
Section 5.07.		Delegation of Authority	25
Section 5.08.		Other Activities	25
Section 5.09.		Limitation on Liability of the General Partner and Initial Limited Partner; Indemnification	25
Section 5.10.		Special Amendments to the Agreement	26
Section 5.11.		Issuance of Series A Preferred Units	27
Section 5.12.		Issuance of Series A-1 Preferred Units	27
Section 5.13.		Issuance of Series B Preferred Units	27
ARTICLE VI
CHANGES IN GENERAL PARTNERS
Section 6.01.		Withdrawal of General Partner	27
Section 6.02.		Admission of a Successor or Additional General Partner	27
Section 6.03.		Removal of a General Partner	28
Section 6.04.		Interest of Departing General Partner and Successor General Partner	28
Section 6.05.		Effect of Incapacity of a General Partner	30
ARTICLE VII
TRANSFERABILITY OF BUCS AND LIMITED PARTNERS’ INTERESTS
Section 7.01.		Free Transferability of BUCs	31
Section 7.02.		Restrictions on Transfers of BUCs and of Interests of Limited Partners Other Than the Initial Limited Partner	32
Section 7.03.		Assignees of Limited Partners Other Than the Initial Limited Partner	33
Section 7.04.		Joint Ownership of Interests	34
ARTICLE VIII
DISSOLUTION AND LIQUIDATION OF THE PARTNERSHIP
Section 8.01.		Events Causing Dissolution	34
Section 8.02.		Liquidation	35
ARTICLE IX
RIGHTS, OBLIGATIONS AND POWERS OF THE GENERAL PARTNER
Section 9.01.		Books and Records	36

 

 

 

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Section 9.02.		Accounting Basis and Fiscal Year	37
Section 9.03.		Reports	37
Section 9.04.		Designation of Partnership Representative	38
Section 9.05.		Expenses of Partnership Representative	38
ARTICLE X
MEETINGS AND VOTING RIGHTS OF LIMITED PARTNERS AND BUC HOLDERS
Section 10.01.		Meetings	39
Section 10.02.		Voting Rights of Limited Partners and BUC Holders	40
Section 10.03.		Opinion Regarding Effect of Action by Limited Partners and BUC Holders	41
Section 10.04.		Other Activities	41
ARTICLE XI
ASSIGNMENT OF LIMITED PARTNERSHIP INTERESTS TO BUC HOLDERS AND RIGHTS OF BUC HOLDERS
Section 11.01.		Assignment of Limited Partnership Interests to BUC Holders	42
Section 11.02.		Rights of BUC Holders	43
Section 11.03.		Voting by the Initial Limited Partner on Behalf of BUC Holders	43
Section 11.04.		Preservation of Tax Status	44
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01.		Appointment of the General Partner as Attorney‑in‑Fact	44
Section 12.02.		Signatures	45
Section 12.03.		Amendments	46
Section 12.04.		Binding Provisions	47
Section 12.05.		Applicable Law	47
Section 12.06.		Separability of Provisions	47
Section 12.07.		Captions	48
Section 12.08.		Entire Agreement	48
Section 12.09.		Investments	48
Section 12.10.		Reliance on Exemption	48
SCHEDULE A
EXHIBIT AP – Terms of Series A Preferred Units
EXHIBIT A-1P – Terms of Series A-1 Preferred Units
EXHIBIT BP – Terms of Series B Preferred Units

 

 

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GREYSTONE HOUSING IMPACT INVESTORS LP

SECOND AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

This SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF GREYSTONE HOUSING IMPACT INVESTORS LP is made as of December 5, 2022 by and among America First Capital Associates Limited Partnership Two, a Delaware limited partnership (the “General Partner”), and Greystone ILP, Inc., a Delaware corporation (the “Initial Limited Partner”), and the other Limited Partners listed on Schedule A attached hereto, together with any other Persons who become Partners in the Partnership or parties hereto as provided herein.

RECITALS

WHEREAS, the General Partner, the Initial Limited Partner and the other Limited Partners are parties to that certain First Amended and Restated Agreement of Limited Partnership of the Partnership dated September 15, 2015, as amended (the “First Amended Partnership Agreement”); and

WHEREAS, Section 5.02(a) of the First Amended Partnership Agreement provides that the General Partner is authorized, among other things, to amend the Partnership’s certificate of limited partnership (the “Certificate”) and to amend the First Amended Partnership Agreement as provided in Section 12.03 therein, and that the General Partner is also authorized to engage in any activity necessary or incidental to, or in connection with, the accomplishment of the purposes of the Partnership; and

WHEREAS, Section 5.02(b) of the First Amended Partnership Agreement provides that, with respect to its obligations, powers, and responsibilities under the First Amended Partnership Agreement, the General Partner is authorized to execute and deliver, for and on behalf of the Partnership, such documents as it deems proper, all on such terms and conditions as it deems proper; and

WHEREAS, the General Partner has determined that it is in the best interest of the Partnership to change the name of the Partnership from “America First Multifamily Investors, L.P.” to “Greystone Housing Impact Investors LP”; and

WHEREAS, Section 12.03(a) of the First Amended Partnership Agreement provides that the General Partner, without the consent or approval of the Limited Partners or the BUC Holders, under certain circumstances, which the General Partner has determined are applicable hereto, may amend the First Amended Partnership Agreement and the Certificate, and, among other things, prepare, file, and record such documents and certificates as shall be required in making such amendments; and

WHEREAS, the General Partner filed an amendment to the Partnership’s Certificate in the office of the Secretary of State of the State of Delaware effecting such change in the Partnership’s name effective as of December 5, 2022; and

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WHEREAS, the General Partner, being authorized to do so, now desires to amend the First Amended Partnership Agreement to reflect such name change, and to make certain conforming and other changes which are not materially adverse to the interests of the Limited Partners and BUC Holders, and to restate the First Amended Partnership Agreement, as so amended, in its entirety.

NOW, THEREFORE, the First Amended Partnership Agreement is hereby amended, and restated in its entirety, as follows:

The defined terms used in this Agreement shall, unless the context otherwise requires, have the meanings specified in this Article I. The singular shall include the plural and the masculine genders shall include the feminine and neuter gender, and vice versa, as the context requires.

“Accountants” means such nationally recognized firm of independent public accountants as shall be engaged from time to time by the General Partner on behalf of the Partnership.

“Act” means the Delaware Revised Uniform Limited Partnership Act, which consists of Title 6, Chapter 17 of the Delaware Code Annotated, as it may be amended or revised from time to time, or any other provision of Delaware law which may, from time to time, supersede part or all of the Delaware Revised Uniform Limited Partnership Act.

“Administrative Fee” means the fee payable to the General Partner that is described in Section 5.05(a) hereof.

“AFCA” means America First Capital Associates Limited Partnership Two, a Delaware limited partnership.

“Affiliate” means, when used with reference to a specified Person, (i) any Person who directly or indirectly controls or is controlled by or is under common control with the specified Person, (ii) any Person who is (or has the power to designate) an officer of, general partner in or trustee of, or serves (or has the power to designate a person to serve) in a similar capacity with respect to, the specified Person, or of which the specified Person is an officer, general partner or trustee, or with respect to which the specified Person serves in a similar capacity, and (iii) any Person who, directly or indirectly, is the beneficial owner of 10% or more of any class of equity securities of the specified Person or of which the specified Person is directly or indirectly the owner of 10% or more of any class of equity securities. An Affiliate of the Partnership or the General Partner does not include any limited partner of the General Partner or a Limited Partner holding Preferred Units if such Person is not otherwise an Affiliate of the Partnership or the General Partner.

“Agreement” means this Second Amended and Restated Agreement of Limited Partnership, as originally executed and as amended from time to time.

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“Associate” means, when used to indicate a relationship with any Person, (i) any corporation or organization of which such Person is a director, officer, or partner, or is, directly or indirectly, the owner of 20% or more of any class of voting stock or other voting interest; (ii) any trust or other estate in which such Person has at least a 20% beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity; or (iii) any relative or spouse of such Person, or any relative of such spouse, who has the same principal residence as such Person.

“Bankruptcy” or “Bankrupt” as to any Person means the filing of a petition for relief by such Person as debtor or bankrupt under the United States Bankruptcy Code of 1978 or like provision of law or insolvency of such Person as finally determined by a court proceeding.

“Bond” or “Bonds” means the tax-exempt housing bonds and tax-exempt housing loans issued by various state or local authorities in order to provide construction and permanent financing for apartment complexes and other multifamily properties which are held by the Partnership from time to time.

“BUC” means a Limited Partnership Interest which is credited to the Initial Limited Partner on the books and records of the Partnership and assigned by the Initial Limited Partner to a BUC Holder.

“BUC Holder” means any Person who has been assigned one or more Limited Partnership Interests by the Initial Limited Partner pursuant to Section 11.01. A BUC Holder is not a Limited Partner and will have no right to be admitted as a Limited Partner.

“Business Day” means any day other than a Saturday, Sunday, or a day on which banking institutions in either New York, New York or Omaha, Nebraska are obligated by law or executive order to be closed.

“Capital Account” means the capital account of a Partner or a BUC Holder as described in Section 4.06 hereof.

“Capital Contribution” means the total amount contributed to the capital of the Partnership by or on behalf of all Partners or any class of Partners or by any one Partner, as the context may require (or by the predecessor holders of the Partnership Interests of such Persons) and, with respect to a BUC Holder, the Capital Contribution of the Initial Limited Partner made on behalf of such BUC Holder.

“Cause” means conduct which constitutes fraud, bad faith, gross negligence, or willful misconduct.

“Certificate” means the certificate of limited partnership of the Partnership filed pursuant to Section 17‑201 of the Act, as it may be amended from time to time.

“Code” means the Internal Revenue Code of 1986, as amended, or any corresponding provision or provisions of succeeding law.a

 

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“Combined Interest” shall have the meaning set forth in Section 6.04(a) of this Agreement.

“Consent” means either the consent given by a vote at a meeting called and held in accordance with the provisions of Section 10.01 hereof or the written consent (including by Electronic Transmission), as the case may be, of a Person to do the act or thing for which the consent is solicited, or the act of granting such consent, as the context may require. Consent given after the act or thing is done with respect to which the Consent is solicited shall be deemed to relate back to the date such act or thing was done.

“Contingent Interest” means (i) any Interest Income paid from the net cash flow of a project (or any Residual Proceeds paid from the proceeds of a sale or refinancing of the project), the payment of either of which is not required under the terms of the Mortgage Investment unless there is specified cash flow from a project or other specified contingencies are satisfied, and (ii) any amounts received by the Partnership on the sale or other disposition of a Mortgage Investment other than amounts representing repayment of principal and amounts constituting Interest Income.

“Counsel” means the law firm representing the General Partner in connection with the operation of the Partnership or the law firm, if any, selected by the General Partner to represent the Partnership.

“Departing General Partner” means a former General Partner from and after the effective date of any withdrawal or removal of such former General Partner pursuant to Section 6.02 or 6.03.

“Distribution Date” means a Business Day selected by the General Partner for the distribution of Net Interest Income or Net Residual Proceeds with respect to a Distribution Period, which Business Day shall be no later than 60 days following the last day of the Distribution Period to which such Distribution Date relates.

“Distribution Period” means the period of time selected by the General Partner for which the distribution of Net Interest Income or Net Residual Proceeds is made, which period may be no longer than six calendar months.

“Electronic Transmission” means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved, and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process.

“First Amended Partnership Agreement” has the meaning set forth in the Recitals to this Agreement.

“General Partner” means AFCA or any Person or Persons who, at the time of reference thereto, have been admitted as successors to the Partnership Interest of AFCA or as additional General Partners, in each such Person’s capacity as a General Partner.

“General Partner Distribution Rights” means the rights of the General Partner to receive (i) distributions of Net Interest Income pursuant to Section 4.01, (ii) distributions of Net Residual

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Proceeds (Tier 2) pursuant to the Section 4.02, and (iii) distributions of Liquidation Proceeds pursuant to Section 4.02.

“General Partner Interest” means the ownership interest of the General Partner in the Partnership in its capacity as a general partner without reference to any Limited Partnership Interest or BUCs held by it.

“GP Percentage Interest” means, as of any date of determination, the amount of the General Partner’s aggregate Capital Contributions to the Partnership divided by the aggregate Capital Contributions made to the Partnership by all Partners.

“Group” means a Person that, with or through any of its Affiliates or Associates, has any contract, arrangement, understanding, or relationship for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent given to such Person in response to a proxy or consent solicitation made to 10 or more Persons), exercising investment power, or disposing of any Partnership Interests with any other Person that beneficially owns, or whose Affiliates or Associates beneficially own, directly or indirectly, Partnership Interests.

“Incapacity” or “Incapacitated” means, as to any Person, death, the adjudication of incompetency or insanity, Bankruptcy, dissolution, termination, withdrawal pursuant to Section 6.01 or removal pursuant to Section 6.03, as the case may be, of such Person.

“Income” means the taxable income of the Partnership as determined in accordance with the Partnership’s method of accounting and computed under Section 703 of the Code; any item of taxable income required to be separately stated on the Partnership’s federal income tax return pursuant to Section 703(a)(1) of the Code; and any income of the Partnership excluded from the gross income of the Partnership for federal income tax purposes under Section 103 of the Code.

“Indemnitee” and “Indemnitees” have the meanings set forth in Section 5.09(a) of this Agreement.

“Initial Limited Partner” means Greystone ILP, Inc., a Delaware corporation, as successor to America First Fiduciary Corporation Number Five a Nebraska corporation, or any Person or Persons who, at the time of reference thereto, have been admitted to the Partnership, with the consent of the General Partner, as successors to the Limited Partnership Interest of Greystone ILP, Inc.

“Interest Income” means all cash receipts of the Partnership with respect to any period except for (i) Capital Contributions, (ii) amounts received by the Partnership upon a Repayment or upon the sale or other disposition of a Mortgage Investment, Tax Exempt Investment, Other Investment, or other Partnership asset which do not represent accrued interest on the Mortgage Investment, Tax Exempt Investment, or Other Investment other than accrued interest which represents accrued Contingent Interest, or (iii) the proceeds of any loan to the Partnership or the refinancing of any loan, including proceeds received from the reissuance of any Mortgage Investment, Tax Exempt Investment, or Other Investment.

“Limited Partner” means any Person who is a Limited Partner, including the Initial Limited Partner, at the time of reference thereto, in such Person’s capacity as a Limited Partner of the

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Partnership. A BUC Holder is not a Limited Partner and has no right to be admitted as a Limited Partner.

“Limited Partnership Interest” means the Partnership Interest held by a Limited Partner, including the Limited Partnership Interests assigned to BUC Holders.

“Liquidation Proceeds” means all cash receipts of the Partnership (other than operating income and sale proceeds) arising from the liquidation of the Partnership’s assets in the course of the dissolution of the Partnership.

“Loss” means taxable losses of the Partnership, as determined in accordance with the Partnership’s method of accounting and computed under Section 703 of the Code; any item of loss or expense required to be separately stated on the Partnership’s federal income tax return pursuant to Section 703(a)(1) of the Code; and any expenditures of the Partnership not deductible in computing its taxable income and not properly treated as a capital expenditure.

“Merger Agreement” means the Amended Agreement of Merger, dated June 12, 1998, by and between the Partnership and the Prior Partnership pursuant to which the Partnership and the Prior Partnership were merged in accordance with the provisions of the Act, with the Partnership being the surviving partnership.

“Merger Date” means the effective date of the merger of the Partnership and the Prior Partnership specified in the Merger Agreement.

“Monthly Record Date” means the last day of a calendar month.

“Mortgage Investment” means a direct or indirect interest in a tax‑exempt mortgage revenue Bond secured by a Property, including residual interests in one or more trusts which hold tax‑exempt mortgage revenue Bonds, and any other loan (whether or not the interest thereon is exempt from federal income taxation) secured by a mortgage on a Property on which the Partnership also directly or indirectly holds a tax‑exempt mortgage revenue Bond.

“Net Agreed Value” means the fair market value of the Partnership’s assets, reduced by any liabilities to which such assets are subject. For these purposes, the fair market value of the Partnership’s assets shall be determined by an independent investment banking firm or other independent expert selected by the General Partner, which, in turn, may rely on other experts, and the determination of which shall be conclusive as to such matter.

“Net Interest Income” means, with respect to any Distribution Period, all Interest Income received by the Partnership during such Distribution Period, plus any amounts previously set aside as Reserves from Interest Income which the General Partner releases from Reserves as being no longer necessary to hold as part of Reserves, less (i) expenses of the Partnership (including fees and reimbursements paid to the General Partner but excluding any expenses of the Partnership which are directly attributable to the sale of a Mortgage Investment, Tax Exempt Investment, or Other Investment) paid from Interest Income during the Distribution Period (other than operating expenses paid from previously established Reserves), (ii) all cash payments made from Interest Income during such Distribution Period to discharge Partnership indebtedness, and (iii) all amounts from Interest Income set aside as Reserves or used to acquire additional Mortgage

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Investments, Tax Exempt Investments, or Other Investments during such Distribution Period. Net Interest Income will consist of Net Interest Income (Tier 1), Net Interest Income (Tier 2) and Net Interest Income (Tier 3). During each Distribution Period the additions and deductions from Interest Income set forth above shall be first applied against Net Interest Income (Tier 1).

“Net Interest Income (Tier 1)” means, with respect to any Distribution Period, all Net Interest Income, other than Contingent Interest, received by the Partnership during such Distribution Period.

“Net Interest Income (Tier 2)” means, with respect to any Distribution Period, all Net Interest Income representing Contingent Interest received by the Partnership during such Distribution Period up to an amount which, when combined with all prior amounts of Contingent Interest distributed pursuant to Sections 4.02(b) and 4.03(b), aggregates 0.9% per annum of the principal amount of the Mortgage Investments during the period such Mortgage Investments are held by the Partnership or the Prior Partnership.

“Net Interest Income (Tier 3)” means, with respect to any Distribution Period, all Net Interest Income representing Contingent Interest received by the Partnership during such Distribution Period in excess of any Contingent Interest included in Net Interest Income (Tier 2).

“Net Residual Proceeds” means, with respect to any Distribution Period, all Residual Proceeds received by the Partnership during such Distribution Period, plus any amounts previously set aside as Reserves from Residual Proceeds which the General Partner releases from Reserves as being no longer necessary to hold as part of Reserves, less (i) all expenses of the Partnership which are directly attributable to a Repayment or sale or other disposition of a Mortgage Investment, Tax Exempt Investment, or Other Investment, (ii) all cash payments made from Residual Proceeds during such Distribution Period to discharge Partnership indebtedness and (iii) all amounts from Residual Proceeds set aside as Reserves or used to acquire additional Mortgage Investments, Tax Exempt Investments, or Other Investments during such Distribution Period or held by the Partnership to acquire additional Mortgage Investments, Tax Exempt Investments, or Other Investments in future Distribution Periods. Net Residual Proceeds will consist of Net Residual Proceeds (Tier 1), Net Residual Proceeds (Tier 2) and Net Residual Proceeds (Tier 3). During each Distribution Period the additions and deductions from Residual Proceeds set forth above shall be first applied against Net Residual Proceeds (Tier 1).

“Net Residual Proceeds (Tier 1)” means, with respect to any Distribution Period, all Net Residual Proceeds received by the Partnership during such Distribution Period representing the principal amount of a Mortgage Investment, Tax Exempt Investment, or Other Investment which is the subject of a Repayment, sale or other disposition, plus any amounts previously set aside as Reserves from Residual Proceeds which the General Partner releases from Reserves for distribution.

“Net Residual Proceeds (Tier 2)” means, with respect to any Distribution Period, all Net Residual Proceeds representing Contingent Interest received by the Partnership during such Distribution Period up to an amount which, when combined with all prior amounts of Contingent Interest distributed pursuant to Sections 4.02(b) and 4.03(b) and the Contingent Interest to be distributed by the Partnership pursuant to Section 4.02(b) for the current Distribution Period,

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aggregates 0.9% per annum of the principal amount of the Mortgage Investments during the period such Mortgage Investments are held by the Partnership or the Prior Partnership.

“Net Residual Proceeds (Tier 3)” means, with respect to any Distribution Period, all Net Residual Proceeds representing Contingent Interest received by the Partnership during such Distribution Period in excess of any Contingent Interest included in Net Residual Proceeds (Tier 2).

“Notice” means a writing, containing the information required by this Agreement to be communicated to any Person, personally delivered to such Person or sent by registered, certified or regular mail, postage prepaid, to such Person at the last known address of such Person.

“Other Investments” means any securities, other than Mortgage Investments and Tax Exempt Investments, which are acquired by the Partnership and not held in Reserve, including, without limitation, any securities the interest on which is taxable for federal income tax purposes.

 

“Outstanding” means, with respect to Partnership Securities, all Partnership Securities that are issued by the Partnership and reflected as outstanding on the Partnership’s books and records as of the date of determination; provided, however, that, if at any time any Person or Group (other than the General Partner or its Affiliates) beneficially owns 20% or more of any Outstanding Partnership Securities of any class then Outstanding, none of the Partnership Securities owned by such Person or Group shall be voted on any matter and shall not be considered to be Outstanding when sending notices of a meeting of Limited Partners or BUC Holders to vote on any matter (unless otherwise required by law), calculating required votes, determining the presence of a quorum, or for other similar purposes under this Agreement; provided, further, that, the foregoing limitation shall not apply to (i) any Person or Group who acquired 20% or more of the Outstanding Partnership Securities of any class then Outstanding directly from the General Partner or its Affiliates, (ii) any Person or Group who acquired 20% or more of the Outstanding Partnership Securities of any class then Outstanding directly or indirectly from a Person or Group described in clause (i) provided that the General Partner shall have notified such Person or Group in writing that such limitation shall not apply, or (iii) any Person or Group who acquired 20% or more of any Partnership Securities issued by the Partnership with the prior approval of the board of managers of the general partner of the General Partner.

 

“Partner” means the General Partner or any Limited Partner.

“Partnership” means Greystone Housing Impact Investors LP, a Delaware limited partnership formerly known as America First Multifamily Investors, L.P., as said limited partnership may from time to time be constituted.

“Partnership Interest” means the entire ownership interest of a Partner in the Partnership at any particular time, including the right of such Partner to any and all benefits to which a Partner may be entitled under this Agreement, together with the obligations of such Partner to comply with all the terms and provisions of this Agreement and the Act.

“Partnership Representative” has the meaning set forth in Section 9.04 of this Agreement.

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“Partnership Security” means any class or series of equity interest in the Partnership, including General Partner Interests, Limited Partnership Interests, BUCs, and General Partner Distribution Rights.

“Person” means any individual, partnership, corporation, trust, association or other legal entity.

“Prior Partnership” means America First Tax Exempt Mortgage Fund Limited Partnership, a Delaware limited partnership.

“Property” or “Properties” means the real property, including land and the buildings thereon, which is secured by a mortgage or other similar encumbrance backing a Mortgage Investment held by the Partnership.

“Regulations” means the United States Treasury Regulations promulgated or proposed under the Code.

“Repayment” means the payment of the outstanding principal, and Contingent Interest, if any, upon the maturity of a Mortgage Investment, Tax Exempt Investment, or Other Investment or at such earlier time as the Partnership may require the payment of outstanding principal.

“Reserve” means such amount of funds as shall be withheld from Capital Contributions, Interest Income or Residual Proceeds by the General Partner from time to time in order to provide working capital for the Partnership and which may be used for any purpose relating to the operation of the Partnership and its Mortgage Investments, Tax Exempt Investments, and Other Investments, including the acquisition of additional Mortgage Investments, Tax Exempt Investments, and Other Investments.

“Residual Proceeds” means all amounts received by the Partnership upon a Repayment or upon the sale of or other disposition of a Mortgage Investment, Tax Exempt Investment, Other Investment, or other Partnership asset except for amounts representing accrued interest on a Mortgage Investment (other than accrued Contingent Interest), Tax Exempt Investment, or Other Investment. Amounts representing accrued interest (other than accrued Contingent Interest) received by the Partnership upon a Repayment or upon the sale or other disposition of a Mortgage Investment, Tax Exempt Investment, or Other Investment shall be included in Interest Income. Residual Proceeds will not include any amount received by the Partnership representing proceeds from the securitization of a Mortgage Investment.

“Schedule A” means the schedule, as amended from time to time, of Partners’ names, addresses and Capital Contributions, which schedule, in its initial form, is attached to and made a part of this Agreement.

“Tax Exempt Investments” means any securities, other than Mortgage Investments, which are acquired by the Partnership and not held in Reserve and the interest on which is exempt from federal income taxation; provided that, any security acquired by the Partnership which is not secured by a direct or indirect interest in a Property must be rated in one of the four highest rating categories by at least one nationally recognized rating agency in order to constitute a “Tax Exempt Investment” under this Agreement.

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“Tax Matters Partner” means the Partner designated as the Tax Matters Partner of the Partnership by the General Partner pursuant to Section 9.04.

“Trust” has the meaning set forth in Section 8.02(d) of this Agreement.

“Trustee” has the meaning set forth in Section 8.02(d) of this Agreement.

“Withdrawal Opinion of Counsel” means a written opinion of counsel (who may be regular counsel to the Partnership or the General Partner or any of its Affiliates) acceptable to the General Partner that the withdrawal of the General Partner in accordance with this Agreement (following the selection of the successor General Partner) would not result in the loss of the limited liability of any Limited Partner or BUC Holder or cause the Partnership or any of its Affiliates to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for federal income tax purposes (to the extent not already so treated or taxed).

“’40 Act” has the meaning set forth in Section 12.03(a)(viii) of this Agreement.

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(d) Each additional Partnership Security authorized to be issued pursuant to Section 5.02(a)(iii) may be issued in one or more classes, or one or more series of any such classes, with such designations, preferences, rights, powers, and duties (which may be senior to existing classes and series of Partnership Securities, including BUCs), as shall be fixed by the General Partner, including (i) the right to share in Partnership profits and losses or items thereof; (ii) the right to share in Partnership distributions; (iii) the rights upon dissolution and liquidation of the Partnership; (iv) whether, and the terms and conditions upon which, the Partnership may redeem the Partnership Security; (v) whether such Partnership Security is issued with the privilege of conversion or exchange and, if so, the terms of such conversion or exchange; (vi) the terms and conditions upon which each Partnership Security will be issued, evidenced by certificates, and assigned or transferred; and (vii) the right, if any, of each such Partnership Security to vote on Partnership matters, including matters relating to the relative rights, preferences, and privileges of such Partnership Security.

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(f) Nothing in this Section 5.03 shall prevent an Affiliate of the General Partner from acquiring and holding debt securities or other interests secured by a property, provided that the Mortgage Investment, Tax Exempt Investment, or Other Investment held

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by the Partnership that is secured by the same property may not be junior or subordinate to the interest held by such Affiliate.

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(c) Except as expressly set forth in this Agreement, neither the General Partner nor any other Indemnitee shall have any duties or liabilities, including fiduciary duties, to the Partnership or any Limited Partner, BUC Holder, or assignee, and the provisions of this Agreement, to the extent they restrict, eliminate, or otherwise modify the duties and liabilities, including fiduciary duties, of the General Partner or any other Indemnitee otherwise existing at law or in equity, are agreed by the Partners to replace such other duties and liabilities of the General Partner or such other Indemnitee.

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For purposes of this Section 6.04(a), the fair market value of the Departing General Partner’s Combined Interest shall be the sum of (i) the present value of future Administrative Fees and Net Interest Income which would be paid to the Departing General Partner if the General Partner would not have withdrawn or been removed, and (ii) the amount the Departing General Partner would receive upon dissolution and termination of the Partnership, assuming that such dissolution or termination occurred on the date of the withdrawal or removal, as the case may be, and the assets of the Partnership were sold for their then fair market value without any compulsion on the part of the Partnership to sell such assets. The fair market value of such Departing General Partner’s Combined Interest shall be determined by agreement between the Departing General Partner and its successor or, failing agreement within 30 days after the effective date of such Departing General Partner’s withdrawal or removal, by an independent investment banking firm or other independent expert selected by the Departing General Partner and its successor, which, in turn, may rely on other experts, and the determination of which shall be conclusive as to such matter. If such parties cannot agree upon one independent investment banking firm or other independent expert within 45 days after the effective date of such departure, then the Departing General Partner shall designate an independent investment banking firm or other independent expert, the Departing General Partner’s successor shall designate an independent investment banking firm or other independent expert, and such firms or experts shall mutually select a third independent investment banking firm or independent expert, which third independent investment banking firm or other independent expert shall determine the fair market value of the Combined Interest of the Departing General Partner. In making its determination, such third independent investment banking firm or other independent expert may consider the then current trading price of BUCs on any national securities exchange on which BUCs are then listed or admitted to trading, the value of the Partnership’s assets, the rights and obligations of the Departing General Partner, and other factors it may deem relevant.

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(d) If deemed necessary, appropriate, or desirable by the General Partner, in its absolute discretion, upon the dissolution of the Partnership and in furtherance of the liquidation and distribution of the Partnership’s assets in accordance with the provisions of this Section 8.02 and Article IV of this Agreement, as a final liquidating distribution or from time to time, the General Partner may transfer to one or more liquidating trustees (the “Trustees”), for the benefit of the Partners and BUC Holders under a liquidating trust (the “Trust”), any assets of the Partnership, including cash, intended for distribution to creditors, Partners, and BUC Holders, as the case may be, not disposed of at the time of dissolution of the Partnership, including any reserve established pursuant to Section 8.02(b). The General Partner shall be authorized to appoint one or more Persons, including, without limitation, any one or more officers, employees, agents, Affiliates, or representatives of the Partnership or General Partner, to act as the Trustee or Trustees. Any Trustees appointed as provided in the preceding sentence shall succeed to all right, title, and interest of the Partnership of any kind and character with respect to the assets transferred to the Trustee(s) and, to the extent of the assets so transferred and solely in their capacity as Trustees, shall assume all of the claims and obligations of the Partnership, including, without limitation, any unsatisfied claims and unknown or contingent liabilities. The General Partner, in its absolute discretion, may enter into a liquidating trust agreement with the Trustee(s), on such terms and conditions as the General Partner, in its absolute discretion, may deem necessary, appropriate, or desirable.

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Notwithstanding the foregoing, the Partnership may issue additional BUCs from time to time as determined by the General Partner, in which case the foregoing assignment will be deemed to include an assignment to the holders of such additional BUCs and such additional BUCs shall participate in the rights and interest of the Initial Limited Partner to the same extent as the BUCs existing on the Merger Date. All Persons becoming BUC Holders shall be bound by the terms and conditions of, and shall be entitled to all rights of, Limited Partners under this Agreement.

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provided, however, that, no amendment shall be adopted pursuant to this Section 12.03(a) unless the adoption thereof (A) is consistent with Section 5.01 and is not prohibited by Section 5.04; (B) does not affect the distribution of Net Interest Income, Net Residual Proceeds or Liquidation Proceeds or the allocation of Income or Loss (except as provided in Section 5.10); and (C) does not, in the sole judgment of the General Partner after consultation with Counsel, affect the limited liability of the Limited Partners or the BUC Holders or cause the Partnership not to be treated as a partnership for federal income tax purposes.

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[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first above written.

GENERAL PARTNER:

 

AMERICA FIRST CAPITAL ASSOCIATES LIMITED PARTNERSHIP TWO, as General Partner and on behalf of the existing Limited Partners (other than the Initial Limited Partner)

 

By: Greystone AF Manager LLC, its general partner

 

By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇

Title: President

 

 

INITIAL LIMITED PARTNER:

 

GREYSTONE ILP, INC.

 

By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇

Title: President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Signature Page of Second Amended and Restated Agreement of

Limited Partnership of Greystone Housing Impact Investors LP]

 

 

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SCHEDULE A

GENERAL PARTNER:

America First Capital Associates Limited Partnership Two $4,996

▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇

INITIAL LIMITED PARTNER:

Greystone ILP, Inc. $72,644,126

▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇

OTHER LIMITED PARTNERS:

Holders of Series A Preferred Units of the Partnership on the date hereof, the names, addresses and Capital Contributions of which are reflected in the books maintained by the Partnership for the Series A Preferred Units.

Holders of Series A-1 Preferred Units of the Partnership on the date hereof, the names, addresses and Capital Contributions of which are reflected in the books maintained by the Partnership for the Series A-1 Preferred Units.

 

 

 

 

 

 

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EXHIBIT AP

DESIGNATION OF THE PREFERENCES, RIGHTS, RESTRICTIONS, AND LIMITATIONS OF THE SERIES A PREFERRED UNITS

1. Definitions. In addition to those terms defined in the Agreement, the following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in the Agreement and this Exhibit AP.

“BUCs Ratio” means the quotient obtained by dividing the aggregate market value of the issued and outstanding BUCs as of the close of business, New York time, on any date by the aggregate value of the issued and outstanding Series A Preferred Units, as shown on the Partnership’s financial statements, on that same date.

“Liquidation Preference” means an amount equal to the Original Series A Purchase Price.

“Original Series A Purchase Price” means an amount equal to $10.00 per Series A Preferred Unit.

“Pro Rata” means apportioned among all Series A Holders in accordance with the relative number or percentage of Series A Preferred Units held by each such holder.

“Ratio Determination Date” means any date on which the General Partner determines that the BUCs Ratio has fallen below 1.0 and has remained below 1.0 for the Ratio Period.

“Ratio Period” means any period of 15 consecutive business days for which the General Partner has determined that the BUCs Ratio has remained below 1.0.

“Redemption Right Trigger Date” means the date that is the sixth anniversary of the closing date of a Series A Holder’s purchase of Series A Preferred Units.

“Senior Securities” means any class or series of Partnership Securities established after the Series A original issue date, the terms of which class expressly provide that it ranks senior to the Series A Preferred Units as to distribution rights and/or as to rights on liquidation, winding-up, and dissolution of the Partnership.

“Series A Distribution Payment Date” means the 15th calendar day of January, April, July, and October in each year, commencing on July 15, 2016; provided that, if any Series A Distribution Payment Date would otherwise occur on a day that is not a Business Day, such Series A Distribution Payment Date shall instead be on the immediately succeeding Business Day.

 

 

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“Series A Distribution Period” means any quarterly distribution period commencing on January 1, April 1, July 1, and October 1 of each year, or on any date as determined by the General Partner, and ending on and including the day preceding the first day of the next succeeding Series A Distribution Period (other than the initial Series A Distribution Period with respect to each Series A Preferred Unit, which shall commence on the date on which such Series A Preferred Unit was issued by the Partnership and end on and include the day preceding the first day of the next succeeding Series A Distribution Period).

“Series A Distribution Rate” means a rate equal to 3.00% per annum of the Original Series A Purchase Price per Series A Preferred Unit.

“Series A Distribution Record Date” means the date established by the General Partner or otherwise in accordance with the Agreement for determining the identity of Series A Holders entitled to receive any Series A Distribution; provided that, any such Series A Distribution Record Date shall not be more than 30 and not fewer than 10 days prior to the scheduled Series A Distribution Payment Date to which such Series A Distribution Record Date relates.

“Series A Distributions” means distributions with respect to Series A Preferred Units pursuant to Section 4 of this Exhibit AP.

“Series A Holder” means the Person in whose name a Series A Preferred Unit is registered on the books of the Transfer Agent, as of the opening of business on a particular Business Day.

“Series A Preferred Unit” means a Limited Partnership Interest having the designations, preferences, rights, restrictions, and limitations as set forth in this Exhibit AP.

“Series A Purchase Price” means, with respect to any Series A Holder, the product obtained by multiplying (i) $10.00, by (ii) the number of Series A Preferred Units purchased by such Series A Holder.

“Series A Redeemed Holder” means a Series A Holder whose Series A Preferred Units have been redeemed or are subject to redemption pursuant to Section 7 of this Exhibit AP.

“Series A Redemption Date” means any date set by the General Partner as the date upon which the Series A Preferred Units shall be redeemed pursuant to the provisions of Section 7 of this Exhibit AP.

“Series A Redemption Notice” has the meaning set forth in Section 7(c)(i) of this Exhibit AP.

“Series A Redemption Price” means an amount equal to $10.00 per Series A Preferred Unit, plus an amount equal to all declared and unpaid Series A Distributions with respect to each such Series A Preferred Unit to the Series A Redemption Date.

“Transfer Agent” means such bank, trust company, or other Person (including the General Partner or one of its Affiliates) as shall be appointed from time to time by the General

AP-2

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Partner to act as registrar and transfer agent for the Series A Preferred Units; provided that, if no Transfer Agent is specifically designated for the Series A Preferred Units, the General Partner shall act in such capacity.

2. Designation. A series of Limited Partnership Interests to be known as “Series A Preferred Units” is hereby designated and created. This Exhibit AP fixes the preferences, rights, restrictions, and limitations of the Series A Holders and the Series A Preferred Units. Each Series A Preferred Unit shall be identical in all respects to every other Series A Preferred Unit, except as to the respective dates from which Series A Distributions may begin accruing, to the extent such dates may differ. Each Series A Preferred Unit represents a perpetual equity interest in the Partnership and shall not give rise to a claim by the holder thereof for payment of a principal amount at any particular date.

3. Units.

4. Distributions.

 

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Units shall be computed on the basis of the number of days elapsed in such other period and the convention of twelve 30-day months and a 360-day year. For example, by way of clarification only, if a shorter Distribution Period of 60 days is followed by a longer Distribution Period of 120 days, the amount of Series A Distributions payable for the first 60-day Distribution Period would be computed by prorating the Series A Distribution Rate by multiplying such rate by the quotient of 60 days divided by 360 days, whereas the amount of Series A Distributions payable for the second 120-day Distribution Period would be computed by prorating the Series A Distribution Rate by multiplying such rate by the quotient of 120 days divided by 360 days. Notwithstanding the foregoing, no provision herein shall be construed to result in the Series A Distributions being considered as cumulative distributions. Subject to Sections 5 and 7 of this Exhibit AP, the Series A Holders shall not be entitled to any distributions, whether payable in cash, property, or securities, in excess of the Series A Distributions, as herein provided, on the Series A Preferred Units. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on the Series A Preferred Units that may be in arrears.

5. Liquidation Preference.

(a) In the event of any liquidation, dissolution, or winding up of the Partnership, whether voluntary or involuntary, before any payment or distribution of the assets of the Partnership shall be made to or set apart for the holders of any other class or series of Limited Partnership Interest ranking junior to the Series A Preferred Units, the Series A Holders shall be entitled to receive the Liquidation Preference, plus an amount equal to all distributions declared and unpaid thereon to the date of final distribution. If, upon any such liquidation, dissolution, or winding up of the Partnership the assets of the Partnership, or proceeds thereof, distributable to the Series A Holders shall be insufficient to pay in full the preferential amount aforesaid as liquidating payments on any other Partnership Securities ranking on a parity with the Series A Preferred Units as to such distribution, then such assets, or the proceeds thereof, shall be distributed among the Series A Preferred Units and the holders of any such other Partnership Securities ratably in accordance with the respective amounts that would be payable on such Series A Preferred Units and any such other Partnership Securities if all amounts payable thereon were paid in full. For the purposes of this Section 5, (i) a consolidation or merger of the Partnership or General Partner with

AP-4

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one or more entities, (ii) a statutory unit or share exchange by the Partnership or General Partner, and (iii) a sale or transfer of all or substantially all of the Partnership’s or General Partner’s assets shall not be deemed to be a liquidation, dissolution, or winding up, voluntary or involuntary, of the Partnership or General Partner. In making liquidating distributions pursuant to any applicable provision of the Agreement, the General Partner shall take into account the provisions of this Section 5.

(b) Subject to the rights of the holders of Partnership Securities of any series or class ranking on a parity with or senior to the Series A Preferred Units upon any liquidation, dissolution, or winding up of the Partnership, after payment shall have been made in full to the Series A Holders as provided in this Section 5, any class or series of Limited Partnership Interest ranking junior to the Series A Preferred Units shall, subject to any respective terms and provisions applying thereto, be entitled to receive any and all assets remaining to be paid or distributed, and the Series A Holders shall not be entitled to share therein.

6. Voting Rights.

7. Optional Redemption Rights.

(a) Partnership’s Optional Redemption Rights.

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(b) Series A Holders’ Redemption Rights.

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(c) Redemption Procedures.

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(a) The Series A Preferred Units will, with respect to distribution rights, rank: (i) senior to the BUCs, and to any other class or series of Partnership Securities expressly designated as ranking junior to the Series A Preferred Units; (ii) junior to any other class or series of Partnership Securities expressly designated as ranking senior to the Series A Preferred Units; and (iii) junior

AP-8

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to all of our existing and future indebtedness (including indebtedness outstanding under our senior bank credit facility) and other liabilities with respect to assets available to satisfy claims against us.

(b) The Series A Preferred Units will, with respect to the distribution of assets upon the liquidation, dissolution, or winding up of the Partnership, rank: (i) senior to the BUCs, and to any other class or series of Partnership Securities expressly designated as ranking junior to the Series A Preferred Units; and (ii) junior to any other class or series of Partnership Securities expressly designated as ranking senior to the Series A Preferred Units.

10. Limitation on the Issuance of Series A Preferred Units. Notwithstanding any contrary provision herein, no Series A Preferred Units shall be issued by the Partnership if, as of the close of trading on the trading date for the New York Stock Exchange immediately prior to the date the Series A Preferred Units are intended to be issued by the Partnership to the Series A Holder thereof, the aggregate market capitalization of the BUCs on the New York Stock Exchange is less than three times the book value of the Series A Preferred Units, as shown on the Partnership’s then current accounting records.

11. No Sinking Fund. The Series A Preferred Units shall not have the benefit of any sinking fund.

12. Record Holders. To the fullest extent permitted by applicable law, the Partnership and the Transfer Agent may deem and treat any Series A Holder as the true, lawful, and absolute owner of the applicable Series A Preferred Units for all purposes, and, to the fullest extent permitted by law, neither the Partnership nor the Transfer Agent shall be affected by any notice to the contrary.

13. Notices. All notices or other communications in respect of the Series A Preferred Units shall be sufficiently given: (i) if given in writing in the English language and either delivered in person or sent by first class mail, postage prepaid; or (ii) if given in such other manner as may be permitted in this Exhibit AP, the Agreement, or by applicable law. Any notice or other communication given to a holder of a Series A Preferred Unit in book-entry form shall be given in the manner prescribed by the Transfer Agent, notwithstanding any contrary indication herein.

14. Other Rights. The Series A Preferred Units shall not have any voting powers, preferences, or relative, participating, optional, registration, or other special rights, or qualifications, limitations, or restrictions thereof, other than as set forth in this Exhibit AP or as required by applicable law.

 

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EXHIBIT A-1P

DESIGNATION OF THE PREFERENCES, RIGHTS, RESTRICTIONS, AND LIMITATIONS OF THE SERIES A-1 PREFERRED UNITS

1. Definitions. In addition to those terms defined in the Agreement and all other exhibits to the Agreement, which shall equally apply to this Exhibit A-1P, the following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in the Agreement and this Exhibit A-1P.

“Original Series A-1 Purchase Price” means an amount equal to $10.00 per Series A-1 Preferred Unit.

“Pro Rata (Series A-1)” means apportioned among all Series A Holders and Series A-1 Holders in accordance with the relative number or percentage of the Series A Preferred Units and Series A-1 Preferred Units, in the aggregate, held by each such holder.

“Series A Preferred Unit” has the meaning set forth in Exhibit AP, as amended, attached to the Agreement and made a part thereof.

“Series A-1 BUCs Ratio” means the quotient obtained by dividing the aggregate market value of the issued and outstanding BUCs as of the close of business, New York time, on any date by the aggregate value of the issued and outstanding Series A Preferred Units and Series A-1 Preferred Units, as shown on the Partnership’s financial statements, on that same date.

“Series A-1 Distribution Payment Date” means the 15th calendar day of January, April, July, and October in each year, commencing on the first such applicable date after the original issuance of Series A-1 Preferred Units by the Partnership; provided that, if any Series A-1 Distribution Payment Date would otherwise occur on a day that is not a Business Day, such Series A-1 Distribution Payment Date shall instead be on the immediately succeeding Business Day.

“Series A-1 Distribution Period” means any quarterly distribution period commencing on January 1, April 1, July 1, and October 1 of each year, or on any date as determined by the General Partner, and ending on and including the day preceding the first day of the next succeeding Series A-1 Distribution Period (other than the initial Series A-1 Distribution Period with respect to each Series A-1 Preferred Unit, which shall commence on the date on which such Series A-1 Preferred Unit was issued by the Partnership and end on and include the day preceding the first day of the next succeeding Series A-1 Distribution Period).

“Series A-1 Distribution Rate” means a rate equal to 3.00% per annum of the Original Series A-1 Purchase Price per Series A-1 Preferred Unit.

 

 

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“Series A-1 Distribution Record Date” means the date established by the General Partner or otherwise in accordance with the Agreement for determining the identity of Series A-1 Holders entitled to receive any Series A-1 Distribution; provided that, any such Series A-1 Distribution Record Date shall not be more than 30 and not fewer than 10 days prior to the scheduled Series A-1 Distribution Payment Date to which such Series A1 Distribution Record Date relates.

“Series A-1 Distributions” means distributions with respect to Series A-1 Preferred Units pursuant to Section 4 of this Exhibit A-1P.

“Series A-1 Holder” means the Person in whose name a Series A-1 Preferred Unit is registered on the books of the Series A-1 Transfer Agent, as of the opening of business on a particular Business Day.

“Series A-1 Liquidation Preference” means an amount equal to the Original Series A-1 Purchase Price.

“Series A-1 Preferred Unit” means a Limited Partnership Interest having the designations, preferences, rights, restrictions, and limitations as set forth in this Exhibit A-1P.

“Series A-1 Purchase Price” means, with respect to any Series A-1 Holder, the product obtained by multiplying (i) $10.00, by (ii) the number of Series A-1 Preferred Units purchased by such Series A-1 Holder.

“Series A-1 Ratio Determination Date” means any date on which the General Partner determines that the Series A-1 BUCs Ratio has fallen below 1.0 and has remained below 1.0 for the Series A-1 Ratio Period.

“Series A-1 Ratio Period” means any period of 15 consecutive business days for which the General Partner has determined that the Series A-1 BUCs Ratio has remained below 1.0.

“Series A-1 Redeemed Holder” means a Series A-1 Holder whose Series A-1 Preferred Units have been redeemed or are subject to redemption pursuant to Section 7 of this Exhibit A-1P.

“Series A-1 Redemption Date” means any date set by the General Partner as the date upon which the Series A-1 Preferred Units shall be redeemed pursuant to the provisions of Section 7 of this Exhibit A-1P.

“Series A-1 Redemption Notice” has the meaning set forth in Section 7(c)(i) of this Exhibit A-1P.

“Series A-1 Redemption Price” means an amount equal to $10.00 per Series A-1 Preferred Unit, plus an amount equal to all declared and unpaid Series A-1 Distributions with respect to each such Series A-1 Preferred Unit to the Series A-1 Redemption Date.

“Series A-1 Redemption Right Trigger Date” means the date that is the sixth anniversary of the closing date of a Series A-1 Holder’s purchase of Series A-1 Preferred Units.

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“Series A-1 Senior Securities” means any class or series of Partnership Securities established after April 20, 2021, the terms of which class expressly provide that it ranks senior to the Series A-1 Preferred Units as to distribution rights and/or as to rights on liquidation, winding-up, and dissolution of the Partnership.

“Series A-1 Transfer Agent” means such bank, trust company, or other Person (including the General Partner or one of its Affiliates) as shall be appointed from time to time by the General Partner to act as registrar and transfer agent for the Series A-1 Preferred Units; provided that, if no Series A-1 Transfer Agent is specifically designated for the Series A-1 Preferred Units, the General Partner shall act in such capacity.

2. Designation. A series of Limited Partnership Interests to be known as “Series A-1 Preferred Units” is hereby designated and created. This Exhibit A-1P fixes the preferences, rights, restrictions, and limitations of the Series A-1 Holders and the Series A-1 Preferred Units. Each Series A-1 Preferred Unit shall be identical in all respects to every other Series A-1 Preferred Unit, except as to the respective dates from which Series A-1 Distributions may begin accruing, to the extent such dates may differ. Each Series A-1 Preferred Unit represents a perpetual equity interest in the Partnership and shall not give rise to a claim by the holder thereof for payment of a principal amount at any particular date.

3. Units.

4. Distributions.

(a) The Series A-1 Holders shall be entitled to receive, when, as, and if declared by the General Partner, out of funds legally available therefor, non-cumulative distributions payable in cash at the Series A-1 Distribution Rate. Such distributions with respect to each Series A-1 Preferred Unit shall be payable quarterly, when, as, and if declared by the General Partner, in arrears on the Series A-1 Distribution Payment Dates, commencing on the first Series A-1 Distribution Payment Date; provided that, the amount per Series A-1 Preferred Unit to be paid in respect of the initial Series A-1 Distribution Period, or any other period shorter or longer than a full Series A-1 Distribution Period, shall be determined in accordance with Section 4(b) below. If any Series A-1 Distribution Payment Date otherwise would occur on a date that is not a Business Day, declared Series A-1 Distributions shall be paid on the immediately succeeding Business Day.

 

 

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In making distributions pursuant to any applicable provision of the Agreement, the General Partner shall take into account the provisions of this Section 4.

5. Liquidation Preference.

(a) In the event of any liquidation, dissolution, or winding up of the Partnership, whether voluntary or involuntary, before any payment or distribution of the assets of the Partnership shall be made to or set apart for the holders of any other class or series of Limited Partnership Interest ranking junior to the Series A-1 Preferred Units, the Series A-1 Holders shall be entitled to receive the Series A-1 Liquidation Preference, plus an amount equal to all

distributions declared and unpaid thereon to the date of final distribution. If, upon any such liquidation, dissolution, or winding up of the Partnership the assets of the Partnership, or proceeds

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thereof, distributable to the Series A-1 Holders shall be insufficient to pay in full the preferential amount aforesaid as liquidating payments on any other Partnership Securities ranking on a parity with the Series A-1 Preferred Units as to such distribution, then such assets, or the proceeds thereof, shall be distributed among the Series A-1 Preferred Units and the holders of any such other Partnership Securities ratably in accordance with the respective amounts that would be payable on such Series A-1 Preferred Units and any such other Partnership Securities if all amounts payable thereon were paid in full. For the purposes of this Section 5, (i) a consolidation or merger of the Partnership or General Partner with one or more entities, (ii) a statutory unit or share exchange by the Partnership or General Partner, and (iii) a sale or transfer of all or substantially all of the Partnership’s or General Partner’s assets shall not be deemed to be a liquidation, dissolution, or winding up, voluntary or involuntary, of the Partnership or General Partner. In making liquidating distributions pursuant to any applicable provision of the Agreement, the General Partner shall take into account the provisions of this Section 5.

(b) Subject to the rights of the holders of Partnership Securities of any series or class ranking on a parity with or senior to the Series A-1 Preferred Units upon any liquidation, dissolution, or winding up of the Partnership, after payment shall have been made in full to the Series A-1 Holders as provided in this Section 5, any class or series of Limited Partnership Interest ranking junior to the Series A-1 Preferred Units shall, subject to any respective terms and provisions applying thereto, be entitled to receive any and all assets remaining to be paid or distributed, and the Series A-1 Holders shall not be entitled to share therein.

6. Voting Rights.

 

 

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7. Optional Redemption Rights.

(a) Partnership’s Optional Redemption Rights.

(b) Series A-1 Holders’ Redemption Rights.

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exception of the number of calendar days within which a Series A-1 Redemption Notice shall be given, the remainder of the redemption procedures set forth in Section 7(c) below shall be followed with respect to a redemption effected pursuant to the provisions of this paragraph.

(c) Redemption Procedures.

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Series A-1 Preferred Units shall be redeemed by such method of selection as the General Partner shall determine, either Pro Rata (Series A-1) or by lot, with adjustments to avoid redemption of fractional Series A-1 Preferred Units. The aggregate Series A-1 Redemption Price for any such partial redemption of the outstanding Series A-1 Preferred Units shall be allocated correspondingly among the redeemed Series A-1 Preferred Units. The Series A-1 Preferred Units not redeemed shall remain outstanding and entitled to all the rights and preferences provided in this Exhibit A-1P.

(iii) If the Partnership or Series A-1 Redeemed Holder, as the case may be, gives or causes to be given a Series A-1 Redemption Notice, the Partnership shall deposit with the Series A-1 Transfer Agent (or, if the General Partner is acting in the capacity of the Series A-1 Transfer Agent, the General Partner will secure) funds sufficient to redeem the Series A-1 Preferred Units as to which such Series A-1 Redemption Notice shall have been given, no later than 10:00 a.m. New York City time on the Series A-1 Redemption Date, and, to the extent applicable, shall give the Series A-1 Transfer Agent irrevocable instructions and authority to pay (or, if the General Partner is acting in the capacity of the Series A-1 Transfer Agent, the General Partner shall pay) the Series A-1 Redemption Price to the Series A-1 Holders to be redeemed, as set forth in the Series A-1 Redemption Notice. If the Series A-1 Redemption Notice shall have been given, from and after the Series A-1 Redemption Date, unless the Partnership defaults in providing or securing funds sufficient for such redemption at the time and place specified for payment pursuant to the Series A-1 Redemption Notice, all Series A-1 Distributions on such Series A-1 Preferred Units to be redeemed shall cease and all rights of holders of such Series A-1 Preferred Units with respect to such Series A-1 Preferred Units shall cease, except the right to receive the Series A-1 Redemption Price, including any amount equal to declared and unpaid distributions to the Series A-1 Redemption Date, and such Series A-1 Preferred Units shall not thereafter be transferred on the books of the Series A-1 Transfer Agent or the Partnership, as the case may be, or be deemed to be outstanding for any purpose whatsoever. The Partnership shall be entitled to receive from the Series A-1 Transfer Agent the interest income, if any, earned on such funds deposited with the Series A-1 Transfer Agent (to the extent that such interest income is not required to pay the Series A-1 Redemption Price of the Series A-1 Preferred Units to be redeemed), and the holders of any Series A-1 Preferred Units so redeemed shall have no claim to any such interest income. Any funds deposited with the Series A-1 Transfer Agent hereunder by the Partnership for any reason, including redemption of Series A-1 Preferred Units, that remain unclaimed or unpaid after two years after the applicable Series A-1 Redemption Date or other payment date, shall be, to the extent permitted by law, repaid to the Partnership upon its written request, after which repayment the Series A-1 Holders entitled to such redemption or other payment shall have recourse only to the Partnership. Notwithstanding any Series A-1 Redemption Notice, there shall be no redemption of any Series A-1 Preferred Units called for redemption until funds sufficient to pay the full Series A-1 Redemption Price of such Series A-1 Preferred Units shall have been deposited by the Partnership with the Series A-1 Transfer Agent or, if the General Partner is acting in the capacity of the Series A-1 Transfer Agent, secured by the General Partner for such purposes.

 

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10. Limitation on the Issuance of Series A-1 Preferred Units.

11. No Sinking Fund. The Series A-1 Preferred Units shall not have the benefit of any sinking fund.

12. Record Holders. To the fullest extent permitted by applicable law, the Partnership and the Series A-1 Transfer Agent may deem and treat any Series A-1 Holder as the true, lawful, and absolute owner of the applicable Series A-1 Preferred Units for all purposes, and, to the fullest extent permitted by law, neither the Partnership nor the Series A-1 Transfer Agent shall be affected by any notice to the contrary.

13. Notices. All notices or other communications in respect of the Series A-1 Preferred Units shall be sufficiently given: (i) if given in writing in the English language and either delivered in person or sent by first class mail, postage prepaid; or (ii) if given in such other manner as may be permitted in this Exhibit A-1P, the Agreement, or by applicable law. Any notice or other communication given to a holder of a Series A-1 Preferred Unit in book-entry form shall be given in the manner prescribed by the Series A-1 Transfer Agent, notwithstanding any contrary indication herein.

14. Other Rights. The Series A-1 Preferred Units shall not have any voting powers, preferences, or relative, participating, optional, registration, or other special rights, or qualifications, limitations, or restrictions thereof, other than as set forth in this Exhibit A-1P or as required by applicable law.

 

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EXHIBIT BP

DESIGNATION OF THE PREFERENCES, RIGHTS, RESTRICTIONS, AND LIMITATIONS OF THE SERIES B PREFERRED UNITS

1. Definitions. In addition to those terms defined in the Agreement and all other exhibits to the Agreement, which shall equally apply to this Exhibit BP, the following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in the Agreement and this Exhibit BP.

“Existing Senior Securities” has the meaning set forth in Section 6(b) of this Exhibit BP.

“New Senior Securities” has the meaning set forth in Section 6(b) of this Exhibit BP.

“Original Series B Purchase Price” means an amount equal to $10.00 per Series B Preferred Unit.

“Pro Rata (Series B)” means apportioned among all Series B Holders in accordance with the relative number or percentage of Series B Preferred Units held by each such holder.

“Series A Preferred Unit” has the meaning set forth in Exhibit AP attached to the Agreement and made a part thereof.

“Series A-1 Preferred Unit” has the meaning set forth in Exhibit A-1P attached to the Agreement and made a part thereof.

“Series A-1 Ratio Determination Date” has the meaning set forth in Exhibit A-1P attached to the Agreement and made a part thereof.

“Series A-1 Ratio Period” has the meaning set forth in Exhibit A-1P attached to the Agreement and made a part thereof.

“Series B Distribution Payment Date” means the 15th calendar day of January, April, July, and October in each year, commencing on the first such applicable date after the original issuance of Series B Preferred Units by the Partnership; provided that, if any Series B Distribution Payment Date would otherwise occur on a day that is not a Business Day, such Series B Distribution Payment Date shall instead be on the immediately succeeding Business Day.

“Series B Distribution Period” means any quarterly distribution period commencing on January 1, April 1, July 1, and October 1 of each year, or on any date as determined by the General Partner, and ending on and including the day preceding the first day of the next succeeding Series B Distribution Period (other than the initial Series B Distribution Period with respect to each Series B Preferred Unit, which shall commence on the date on which such Series B Preferred Unit was issued by the Partnership and end on and include the day preceding the first day of the next succeeding Series B Distribution Period).

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“Series B Distribution Rate” means a rate equal to 3.40% per annum of the Original Series B Purchase Price per Series B Preferred Unit.

“Series B Distribution Record Date” means the date established by the General Partner or otherwise in accordance with the Agreement for determining the identity of Series B Holders entitled to receive any Series B Distribution; provided that, any such Series B Distribution Record Date shall not be more than 30 and not fewer than 10 days prior to the scheduled Series B Distribution Payment Date to which such Series B Distribution Record Date relates.

“Series B Distributions” means distributions with respect to Series B Preferred Units pursuant to Section 4 of this Exhibit BP.

“Series B Holder” means the Person in whose name a Series B Preferred Unit is registered on the books of the Series B Transfer Agent, as of the opening of business on a particular Business Day.

“Series B Liquidation Preference” means an amount equal to the Original Series B Purchase Price.

“Series B Preferred Unit” means a Limited Partnership Interest having the designations, preferences, rights, restrictions, and limitations as set forth in this Exhibit BP.

“Series B Purchase Price” means, with respect to any Series B Holder, the product obtained by multiplying (i) $10.00, by (ii) the number of Series B Preferred Units purchased by such Series B Holder.

“Series B Redeemed Holder” means a Series B Holder whose Series B Preferred Units have been redeemed or are subject to redemption pursuant to Section 7 of this Exhibit BP.

“Series B Redemption Date” means any date set by the General Partner as the date upon which the Series B Preferred Units shall be redeemed pursuant to the provisions of Section 7 of this Exhibit BP.

“Series B Redemption Notice” has the meaning set forth in Section 7(c)(i) of this Exhibit BP.

“Series B Redemption Price” means an amount equal to $10.00 per Series B Preferred Unit, plus an amount equal to all declared and unpaid Series B Distributions with respect to each such Series B Preferred Unit to the Series B Redemption Date.

“Series B Redemption Right Trigger Date” means the date that is the eighth anniversary of the closing date of a Series B Holder’s purchase of Series B Preferred Units.

 

 

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“Series B Senior Securities” means any class or series of Partnership Securities established after August 26, 2021, the terms of which class expressly provide that it ranks senior to the Series B Preferred Units as to distribution rights and/or as to rights on liquidation, winding-up, and dissolution of the Partnership.

“Series B Transfer Agent” means such bank, trust company, or other Person (including the General Partner or one of its Affiliates) as shall be appointed from time to time by the General Partner to act as registrar and transfer agent for the Series B Preferred Units; provided that, if no Series B Transfer Agent is specifically designated for the Series B Preferred Units, the General Partner shall act in such capacity.

2. Designation. A series of Limited Partnership Interests to be known as “Series B Preferred Units” is hereby designated and created. This Exhibit BP fixes the preferences, rights, restrictions, and limitations of the Series B Holders and the Series B Preferred Units. Each Series B Preferred Unit shall be identical in all respects to every other Series B Preferred Unit, except as to the respective dates from which Series B Distributions may begin accruing, to the extent such dates may differ. Each Series B Preferred Unit represents a perpetual equity interest in the Partnership and shall not give rise to a claim by the holder thereof for payment of a principal amount at any particular date.

3. Units.

4. Distributions.

(a) The Series B Holders shall be entitled to receive, when, as, and if declared by the General Partner, out of funds legally available therefor, non-cumulative distributions payable in cash at the Series B Distribution Rate. Such distributions with respect to each Series B Preferred Unit shall be payable quarterly, when, as, and if declared by the General Partner, in arrears on the Series B Distribution Payment Dates, commencing on the first Series B Distribution Payment Date; provided that, the amount per Series B Preferred Unit to be paid in respect of the initial Series B Distribution Period, or any other period shorter or longer than a full Series B Distribution Period, shall be determined in accordance with Section 4(b) below. If any Series B Distribution Payment Date otherwise would occur on a date that is not a Business Day, declared Series B Distributions shall be paid on the immediately succeeding Business Day. In making distributions pursuant to any applicable provision of the Agreement, the General Partner shall take into account the provisions of this Section 4.

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5. Liquidation Preference.

(a) In the event of any liquidation, dissolution, or winding up of the Partnership, whether voluntary or involuntary, before any payment or distribution of the assets of the Partnership shall be made to or set apart for the holders of any other class or series of Limited Partnership Interest ranking junior to the Series B Preferred Units, the Series B Holders shall be entitled to receive the Series B Liquidation Preference, plus an amount equal to all distributions declared and unpaid thereon to the date of final distribution. If, upon any such liquidation, dissolution, or winding up of the Partnership the assets of the Partnership, or proceeds thereof, distributable to the Series B Holders shall be insufficient to pay in full the preferential amount aforesaid as liquidating payments on any other Partnership Securities ranking on a parity with the Series B Preferred Units as to such distribution, then such assets, or the proceeds thereof, shall be distributed among the Series B Preferred Units and the holders of any such other Partnership

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Securities ratably in accordance with the respective amounts that would be payable on such Series B Preferred Units and any such other Partnership Securities if all amounts payable thereon were paid in full. For the purposes of this Section 5, (i) a consolidation or merger of the Partnership or General Partner with one or more entities, (ii) a statutory unit or share exchange by the Partnership or General Partner, and (iii) a sale or transfer of all or substantially all of the Partnership’s or General Partner’s assets shall not be deemed to be a liquidation, dissolution, or winding up, voluntary or involuntary, of the Partnership or General Partner. In making liquidating distributions pursuant to any applicable provision of the Agreement, the General Partner shall take into account the provisions of this Section 5.

(b) Subject to the rights of the holders of Partnership Securities of any series or class ranking on a parity with or senior to the Series B Preferred Units upon any liquidation, dissolution, or winding up of the Partnership, after payment shall have been made in full to the Series B Holders as provided in this Section 5, any class or series of Limited Partnership Interest ranking junior to the Series B Preferred Units shall, subject to any respective terms and provisions applying thereto, be entitled to receive any and all assets remaining to be paid or distributed, and the Series B Holders shall not be entitled to share therein.

6. Voting Rights.

 

 

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(c) For any matter described in this Section 6 in which the Series B Holders are entitled to vote (whether separately as a class or together with the holders of any other Partnership Security), such Series B Holders shall be entitled to one vote per Series B Preferred Unit. Any Series B Preferred Units held by any of the Partnership’s subsidiaries or Affiliates shall not be entitled to vote.

7. Optional Redemption Rights.

(a) Partnership’s Optional Redemption Rights.

(b) Series B Holders’ Redemption Rights.

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(c) Redemption Procedures.

(i) Except with respect to any redemption effected pursuant to Section 7(b)(ii) above, the Partnership shall give notice of any redemption not less than 60 calendar days before the scheduled Series B Redemption Date, to the Series B Holders (as of 5:00 p.m. New York City time on the Business Day next preceding the day on which notice is given) of any Series B Preferred Units to be redeemed as such Series B Holders’ names appear on the books of the Series B Transfer Agent and at the address of such Series B Holders shown therein. Such notice (the “Series B Redemption Notice”) shall state: (i) the Series B Redemption Date; (ii) the number of Series B Preferred Units to be redeemed and, if

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less than all outstanding Series B Preferred Units are to be redeemed, the number of such units to be redeemed from such Series B Holder; (iii) the Series B Redemption Price; and (iv) that Series B Distributions on the Series B Preferred Units to be redeemed shall cease from and after such Series B Redemption Date.

 

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(a) The Series B Preferred Units will, with respect to distribution rights, rank: (i) senior to the BUCs, and to any other class or series of Partnership Securities expressly designated as ranking junior to the Series B Preferred Units; (ii) junior to the Series A Preferred Units and Series A-1 Preferred Units; (iii) junior to any other class or series of Partnership Securities expressly designated as ranking senior to the Series B Preferred Units; and (iv) junior to all of our existing and future indebtedness (including indebtedness outstanding under our senior bank credit facility) and other liabilities with respect to assets available to satisfy claims against the Partnership.

(b) The Series B Preferred Units will, with respect to the distribution of assets upon the liquidation, dissolution, or winding up of the Partnership, rank: (i) senior to the BUCs, and to any other class or series of Partnership Securities expressly designated as ranking junior to the Series B Preferred Units; (ii) junior to the Series A Preferred Units and Series A-1 Preferred Units; and (iii) junior to any other class or series of Partnership Securities expressly designated as ranking senior to the Series B Preferred Units.

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