UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 5, 2022 |
Greystone Housing Impact Investors LP
(Exact name of Registrant as Specified in Its Charter)
Delaware |
001-41564 |
47-0810385 |
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(State or Other Jurisdiction |
(Commission File Number) |
(IRS Employer |
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14301 FNB Parkway, Suite 211 |
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Omaha, Nebraska |
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68154 |
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(Address of Principal Executive Offices) |
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(Zip Code) |
Registrant’s Telephone Number, Including Area Code: 402 952-1235 |
AMERICA FIRST MULTIFAMILY INVESTORS, L.P. |
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Trading |
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Beneficial Unit Certificates representing assignments of limited partnership interests in Greystone Housing Impact Investors LP |
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GHI |
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New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On December 5, 2022, America First Capital Associates Limited Partnership Two (the “General Partner”), in its capacity as the general partner of Greystone Housing Impact Investors LP (formerly known as America First Multifamily Investors, L.P.) (the “Partnership”), and Greystone ILP, Inc. (the “Initial Limited Partner”), in its capacity as the initial limited partner of the Partnership, entered into the Greystone Housing Impact Investors LP Second Amended and Restated Agreement of Limited Partnership (the “Second Amended and Restated LP Agreement”), which amended and restated the America First Multifamily Investors, L.P. First Amended and Restated Agreement of Limited Partnership dated September 15, 2015, as further amended (the “Limited Partnership Agreement”). The Second Amended and Restated LP Agreement was approved by the Board of Managers (the “Board”) of Greystone AF Manager LLC (“Greystone Manager”), which is the general partner of the General Partner of the Partnership, and the amendments made pursuant to the Second Amended and Restated LP Agreement did not require the approval of the holders of the Partnership’s beneficial unit certificates representing assignments of limited partnership interests (“BUCs”). A copy of the Second Amended and Restated LP Agreement is attached as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated by reference herein.
The material amendments to the Limited Partnership Agreement set forth in the Second Amended and Restated LP Agreement accomplish the following:
The foregoing description of the amendments reflected in the Second Amended and Restated LP Agreement is a summary and is qualified in its entirety by reference to the full text of the Second Amended and Restated LP Agreement, a copy of which is attached as Exhibit 3.1 to this Current Report on Form 8-K and incorporated by reference herein.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On December 5, 2022, the Partnership’s BUCs began trading on the NYSE under the symbol “GHI.” The CUSIP number for the Partnership’s BUCs continues to be 02364V 206 and has not changed in connection with the listing of the BUCs on the NYSE and the name change disclosed elsewhere in this Current Report on Form 8-K.
Item 3.03 Material Modification to Rights of Security Holders.
The disclosures set forth above in Item 1.01 and below under Item 5.03 are incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As previously disclosed, on November 29, 2022, the Partnership filed an Amendment to the Certificate of Limited Partnership of the Partnership (the “Certificate Amendment”) with the Secretary of State of the State of Delaware to change the name of the Partnership to “Greystone Housing Impact Investors LP.” On December 5, 2022, the Certificate Amendment became effective and the name of the Partnership changed from “America First Multifamily Investors, L.P.” to “Greystone Housing Impact Investors LP”. The Certificate Amendment and name change were approved by the Board of Greystone Manager and did not require the approval of the Partnership’s BUC holders. The name change will not affect the Partnership’s outstanding BUCs or the rights of the holders thereof, and BUC holders will not be required to exchange currently outstanding BUCs certificates for new certificates.
The disclosures set forth above under Item 1.01 with respect to the entering into of the Second Amended and Restated LP Agreement are incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On December 5, 2022, the Partnership issued a press release in connection with the name change of the Partnership and the commencement of trading of the BUCs on the NYSE, a copy of which is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated by reference herein.
In accordance with General Instruction B.2 to Form 8-K, the information provided under this Item 7.01 and the information attached to this Current Report on Form 8-K as Exhibit 99.1 shall be deemed to be “furnished” and shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, regardless of the general incorporation language of such filing, except as expressly set forth by specific reference in such filing.
Item 8.01 Other Events.
On December 5, 2022, the Board of Greystone Manager amended and restated the Partnership’s 2015 Equity Incentive Plan (the “Plan”) to reflect the Partnership’s name change to Greystone Housing Impact Investors LP. No material or other changes were made to the Plan. A copy of the amended and restated Plan is attached hereto as Exhibit 10.1 and incorporated by reference herein.
Forward-Looking Statements
Certain statements in this report are intended to be covered by the safe harbor for “forward-looking statements” provided by the Private Securities Litigation Reform Act of 1995. These forward-looking statements generally can be identified by use of statements that include, but are not limited to, phrases such as “believe,” “expect,” “future,” “anticipate,” “intend,” “plan,” “foresee,” “may,” “should,” “will,” “estimates,” “potential,” “continue,” or other similar words or phrases. Similarly, statements that describe objectives, plans, or goals also are forward-looking statements. Such forward-looking statements involve inherent risks and uncertainties, many of which are difficult to predict and are generally beyond the control of the Partnership. The Partnership cautions readers that a number of important factors could cause actual results to differ materially from those expressed in, implied, or projected by such forward-looking statements. Risks and uncertainties include, but are not limited to, those risks detailed in the Partnership’s SEC filings (including but not limited to, the Partnership’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K). Readers are urged to consider these factors carefully in evaluating the forward-looking statements.
If any of these risks or uncertainties materializes or if any of the assumptions underlying such forward-looking statements proves to be incorrect, the developments and future events concerning the Partnership set forth in this report may differ materially from those expressed or implied by these forward-looking statements. You are cautioned not to place undue reliance on these statements, which speak only as of the date of this document. We anticipate that subsequent events and developments will cause our expectations and beliefs to change. The Partnership assumes no obligation to update such forward-looking statements to reflect events or circumstances after the date of this document or to reflect the occurrence of unanticipated events, unless obligated to do so under the federal securities laws.
Item 9.01 Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
(d) Exhibits.
Exhibit Number |
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Description |
3.1 |
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3.2 |
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10.1 |
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Amended and Restated Greystone Housing Impact Investors LP 2015 Equity Incentive Plan. |
10.2 |
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99.1 |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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Greystone Housing Impact Investors LP |
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Date: |
December 5, 2022 |
By: |
/s/ Jesse A. Coury |
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Printed: Jesse A. Coury |
Exhibit 3.1
GREYSTONE HOUSING
IMPACT INVESTORS LP
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
TABLE OF CONTENTS
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ARTICLE I |
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DEFINED TERMS |
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ARTICLE II |
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NAME, PLACE OF BUSINESS, PURPOSE AND TERM |
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Section 2.01. |
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Name |
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Section 2.02. |
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Principal Office and Name and Address of Resident Agent |
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Section 2.03. |
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Purpose |
10 |
Section 2.04. |
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Term |
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ARTICLE III |
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PARTNERS AND CAPITAL |
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Section 3.01. |
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General Partner |
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Section 3.02. |
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Limited Partner |
11 |
Section 3.03. |
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Partnership Capital |
12 |
Section 3.04. |
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Liability of Partners and BUC Holders |
12 |
Section 3.05. |
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Splits and Combinations |
13 |
Section 3.06. |
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Fully Paid and Non-Assessable Nature of Limited Partnership Interests |
13 |
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ARTICLE IV |
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DISTRIBUTIONS OF CASH; ALLOCATIONS OF INCOME AND LOSS |
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Section 4.01. |
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Distributions of Net Interest Income |
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Section 4.02. |
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Distributions of Net Residual Proceeds and of Liquidation Proceeds |
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Section 4.03. |
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Allocation of Income and Loss From Operations |
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Section 4.04. |
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Allocation of Income and Loss Arising From a Repayment, Sale or Liquidation |
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Section 4.05. |
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Determination of Allocations and Distributions Among Limited Partners and BUC Holders |
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Section 4.06. |
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Capital Accounts |
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Section 4.07. |
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Rights to Distributions |
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ARTICLE V |
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RIGHTS, OBLIGATIONS AND POWERS OF THE GENERAL PARTNER |
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Section 5.01. |
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Management of the Partnership |
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Section 5.02. |
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Authority of the General Partner |
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Section 5.03. |
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Authority of General Partner and Its Affiliates To Deal With Partnership |
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Section 5.04. |
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General Restrictions on Authority of the General Partner |
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Section 5.05. |
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Compensation and Fees |
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Section 5.06. |
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Duties and Obligations of the General Partner |
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Section 5.07. |
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Delegation of Authority |
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Section 5.08. |
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Other Activities |
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Section 5.09. |
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Limitation on Liability of the General Partner and Initial Limited Partner; Indemnification |
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Section 5.10. |
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Special Amendments to the Agreement |
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Section 5.11. |
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Issuance of Series A Preferred Units |
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Section 5.12. |
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Issuance of Series A-1 Preferred Units |
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Section 5.13. |
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Issuance of Series B Preferred Units |
27 |
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ARTICLE VI |
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CHANGES IN GENERAL PARTNERS |
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Section 6.01. |
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Withdrawal of General Partner |
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Section 6.02. |
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Admission of a Successor or Additional General Partner |
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Section 6.03. |
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Removal of a General Partner |
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Section 6.04. |
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Interest of Departing General Partner and Successor General Partner |
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Section 6.05. |
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Effect of Incapacity of a General Partner |
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ARTICLE VII |
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TRANSFERABILITY OF BUCS AND LIMITED PARTNERS’ INTERESTS |
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Section 7.01. |
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Free Transferability of BUCs |
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Section 7.02. |
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Restrictions on Transfers of BUCs and of Interests of Limited Partners Other Than the Initial Limited Partner |
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Section 7.03. |
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Assignees of Limited Partners Other Than the Initial Limited Partner |
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Section 7.04. |
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Joint Ownership of Interests |
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ARTICLE VIII |
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DISSOLUTION AND LIQUIDATION OF THE PARTNERSHIP |
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Section 8.01. |
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Events Causing Dissolution |
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Section 8.02. |
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Liquidation |
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ARTICLE IX |
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RIGHTS, OBLIGATIONS AND POWERS OF THE GENERAL PARTNER |
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Section 9.01. |
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Books and Records |
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Section 9.02. |
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Accounting Basis and Fiscal Year |
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Section 9.03. |
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Reports |
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Section 9.04. |
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Designation of Partnership Representative |
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Section 9.05. |
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Expenses of Partnership Representative |
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ARTICLE X |
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MEETINGS AND VOTING RIGHTS OF LIMITED PARTNERS AND BUC HOLDERS |
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Section 10.01. |
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Meetings |
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Section 10.02. |
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Voting Rights of Limited Partners and BUC Holders |
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Section 10.03. |
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Opinion Regarding Effect of Action by Limited Partners and BUC Holders |
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Section 10.04. |
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Other Activities |
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ARTICLE XI |
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ASSIGNMENT OF LIMITED PARTNERSHIP INTERESTS TO BUC HOLDERS AND RIGHTS OF BUC HOLDERS |
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Section 11.01. |
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Assignment of Limited Partnership Interests to BUC Holders |
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Section 11.02. |
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Rights of BUC Holders |
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Section 11.03. |
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Voting by the Initial Limited Partner on Behalf of BUC Holders |
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Section 11.04. |
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Preservation of Tax Status |
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ARTICLE XII |
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MISCELLANEOUS PROVISIONS |
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Section 12.01. |
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Appointment of the General Partner as Attorney‑in‑Fact |
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Section 12.02. |
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Signatures |
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Section 12.03. |
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Amendments |
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Section 12.04. |
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Binding Provisions |
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Section 12.05. |
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Applicable Law |
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Section 12.06. |
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Separability of Provisions |
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Section 12.07. |
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Captions |
48 |
Section 12.08. |
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Entire Agreement |
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Section 12.09. |
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Investments |
48 |
Section 12.10. |
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Reliance on Exemption |
48 |
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SCHEDULE A |
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EXHIBIT AP – Terms of Series A Preferred Units |
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EXHIBIT A-1P – Terms of Series A-1 Preferred Units |
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EXHIBIT BP – Terms of Series B Preferred Units |
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/ Stephen Rosenberg
Name: Stephen Rosenberg
Title: President
INITIAL LIMITED PARTNER:
GREYSTONE ILP, INC.
By: /s/ Kenneth C. Rogozinski
Name: Kenneth C. Rogozinski
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
152 West 57th Street, 60th Floor
New York, NY 10019
INITIAL LIMITED PARTNER:
Greystone ILP, Inc. $72,644,126
152 West 57th Street, 60th Floor
New York, NY 10019
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
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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
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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
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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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Exhibit 10.1
AMENDED AND RESTATED
GREYSTONE HOUSING IMPACT INVESTORS LP
2015 EQUITY INCENTIVE PLAN
Section 1. Purpose of the Plan. The Greystone Housing Impact Investors LP 2015 Equity Incentive Plan (the “Plan”) is intended to promote the interests of Greystone Housing Impact Investors LP (the “Partnership”) and the Company and their Affiliates (as defined below), including America First Capital Associates Limited Partnership Two, a Delaware limited partnership (the “General Partner”), which is the general partner of the Partnership, by providing to Employees and/or Managers incentive compensation awards based on Units (as defined below) to encourage superior performance. The Plan is also contemplated to enhance the ability of the Company and its Affiliates to attract and retain the services of individuals who are essential for the growth and profitability of the Partnership and its subsidiaries and to encourage them to devote their best efforts to advancing the business of the Partnership and its subsidiaries.
Section 2. Definitions. As used in this Plan, the following terms shall have the meanings set forth below:
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the Person in question. As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise.
“Award” means an Option, Unit Appreciation Right, Restricted Unit, Phantom Unit, an Other Unit-Based Award, or a Unit Award granted under the Plan, and includes any tandem DERs granted with respect to a Phantom Unit.
“Award Agreement” means the written or electronic agreement by which an Award shall be evidenced.
“Board” means the Board of Managers of the Company.
“Cause” means, except as otherwise provided in the terms of an Award Agreement, (i) conviction of a Participant by a court of competent jurisdiction of any felony or a crime involving moral turpitude; (ii) a Participant’s willful and intentional failure or willful and intentional refusal to follow reasonable and lawful instructions of the Board; (iii) a Participant’s material breach or default in the performance of his or her obligations under an Award Agreement or any written employment agreement between the Participant and the Company or any Affiliate; or (iv) a Participant’s act of misappropriation, embezzlement, intentional fraud or similar conduct involving the Company or any of its Affiliates.
“Change of Control” means, and shall be deemed to have occurred upon one or more of the following events:
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(i) any “person” or “group” within the meaning of those terms as used in Sections 13(d) and 14(d)(2) of the Exchange Act, other than the Company or an Affiliate of the Company, shall become the beneficial owner, by way of merger, consolidation, recapitalization, reorganization, or otherwise, of 50% or more of the combined voting power of the equity interests in the Company or the Partnership;
(ii) the limited partners of the Partnership approve, in one or a series of transactions, a program of complete liquidation of the Partnership;
(iii) the sale or other disposition by either the Company or the Partnership of all or substantially all of its assets in one or more transactions to any Person other than the Company or an Affiliate of the Company;
(iv) a transaction resulting in a Person other than the Company or an Affiliate of the Company being the general partner of the Partnership; or
(v) except with respect to Other Unit-Based Awards evidenced by “Performance Unit-Based Award Agreements” which provide for the deferral of compensation and are subject to Section 409A of the Code (“Section 409A Performance Unit-Based Awards”), any time at which individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a Company Manager subsequent to the Effective Date whose appointment, or nomination for election by the Company’s members, was approved by a vote of at least a majority of the Managers then comprising the Incumbent Board will be considered as though such individual were a member of the Incumbent Board.
Notwithstanding the foregoing, if a Change of Control constitutes a payment event with respect to any Award which provides for the deferral of compensation and is subject to Section 409A of the Code, then, to the extent required to comply with Section 409A of the Code, the transaction or event described in clause (i), (ii), (iii), (iv), or (v) above with respect to such Award must also constitute a “change of control event” as defined in Treasury Regulation § 1.409A-3(i)(5).
For the avoidance of doubt, clause (v) of this definition shall not constitute a “Change of Control” for purposes of any Section 409A Performance Unit-Based Award.
“Code” means the Internal Revenue Code of 1986, as amended.
“Committee” means the Board or the Compensation Committee of the Board or such other committee as may be appointed by the Board to administer the Plan.
“Company” means Greystone AF Manager LLC, a Delaware limited liability company.
“DER” or “Distribution Equivalent Right” means a contingent right, which may be granted, if it all, only in tandem with a specific Phantom Unit Award, to receive with respect to each Phantom Unit subject to the Award an amount in cash, Units, and/or Phantom Units
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equivalent in value to the distributions made by the Partnership with respect to a Unit during the period such Award is outstanding.
“Effective Date” means June 24, 2015, provided that the Plan is approved by the holders of Units of the Partnership within 12 months following June 24, 2015.
“Employee” means an employee of the Company or an Affiliate of the Company, who performs services for the Company, the Partnership, or an Affiliate of either.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fair Market Value” of a Unit means the closing sales price of a Unit on the principal national securities exchange or other market in which trading in Units occurs on the applicable date (or, if there is no trading in the Units on such date, on the next preceding date on which there was trading) as reported in The Wall Street Journal (or other reporting service approved by the Committee). If Units are not traded on a national securities exchange or other market at the time a determination of fair market value is required to be made hereunder, the determination of fair market value shall be made in good faith by the Committee.
“General Partner” has the meaning set forth in Section 1 of this Plan.
“Manager” means a member of the Board of Managers of the Company.
“Option” means an option to purchase Units granted under this Plan.
“Other Unit-Based Award” means an Award granted pursuant to Section 6(d) of this Plan.
“Participant” means an Employee or Manager granted an Award under this Plan.
“Partnership” has the meaning set forth in Section 1 of this Plan.
“Partnership Agreement” means the Agreement of Limited Partnership of the Partnership, as it may be amended or amended and restated from time to time.
“Person” means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, governmental agency, or political subdivision thereof, or other entity.
“Phantom Unit” means a notional share granted under this Plan that, upon vesting, entitles the Participant to receive a Unit or an amount of cash equal to the Fair Market Value of a Unit, as determined by the Committee in its sole discretion.
“Plan” means the Greystone Housing Impact Investors LP 2015 Equity Incentive Plan, as may be amended from time to time.
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“Restricted Period” means the period of time established by the Committee with respect to an Award during which the Award remains subject to forfeiture and is either not exercisable by or payable to the Participant, as the case may be.
“Restricted Unit” means a Unit granted under this Plan that is subject to a Restricted Period.
“Rule 16b-3” means Rule 16b-3 promulgated by the SEC under the Exchange Act or any successor rule or regulation thereto as in effect from time to time.
“SEC” means the Securities and Exchange Commission, or any successor thereto.
“Time-Based Phantom Unit Award” has the meaning set forth in Section 6(b)(1) of this Plan.
“Time-Based Restricted Unit Award” has the meaning set forth in Section 6(b)(2) of this Plan.
“UDR” means a distribution made by the Partnership with respect to a Restricted Unit.
“Unit” means a beneficial unit certificate of the Partnership representing an assigned limited partnership interest of the Partnership.
“Unit Appreciation Right” or “UAR” means a contingent right that entitles the holder to receive, in cash or Units, as determined in the sole discretion of the Committee, the excess of the Fair Market Value of a Unit on the exercise date of the UAR over the exercise price of the UAR.
“Unit Award” means a grant of a Unit that is not subject to a Restricted Period.
Section 3. Administration. The Plan shall be administered by the Committee. A majority of the Committee shall constitute a quorum, and the acts of the members of the Committee who are present at any meeting thereof at which a quorum is present, or acts unanimously approved by the members of the Committee in writing (including an email, fax, or other electronic communication that is authenticated according to the Uniform Electronic Transactions Act or that is deemed signed by the Committee’s Chair), shall be the acts of the Committee. Subject to the terms of the Plan and applicable law, and in addition to other express powers and authorizations conferred on the Committee by the Plan, the Committee shall have full power and authority to: (a) designate Participants; (b) determine the type or types of Awards to be granted to a Participant; (c) determine the number of Units to be covered by Awards; (d) determine the terms and conditions of any Award (including, but not limited to performance requirements for such Award); (e) determine whether, to what extent, and under what circumstances Awards may be exercised, canceled, forfeited, or settled (and, if settled, whether and the extent to which settlement is in Units, cash, other property, or any combination thereof), and the method or methods by which Awards may be exercised, canceled, forfeited, or settled; (f) interpret and administer the Plan and any instrument or agreement relating to an Award made under the Plan; (g) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; (h) take any action or exercise any power or right reserved, explicitly or implicitly, to the Committee under the Plan or any Award Agreement; and (i) make
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any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan or an Award Agreement in such manner and to such extent as the Committee deems necessary or appropriate. The Committee may, in its sole discretion, provide for the extension of the exercisability of an Award, accelerate the vesting or exercisability of an Award, eliminate or make less restrictive any restrictions applicable to an Award, waive any restriction or other provision of this Plan or an Award, or otherwise amend or modify an Award in any manner that is either (x) not adverse to the Participant to whom such Award was granted, or (y) consented to by such Participant. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Committee, may be made at any time, and shall be final, conclusive, and binding upon all Persons, including the Company, the Partnership, any Affiliate of the Company, any Participant, and any other holder or beneficiary of any Award.
Section 4. Units.
(a) Limits on Units Deliverable. Subject to adjustment as provided in Section 4(c), the maximum number of Units that may be delivered with respect to Awards under this Plan is 1,000,000 Units. Units withheld from an Award to either satisfy the Company’s or an Affiliate’s tax withholding obligations with respect to the Award, or pay the exercise price of an Award, shall not be considered to be Units delivered under the Plan for this purpose. If any Award is forfeited, cancelled, exercised, paid, or otherwise terminates or expires without the actual delivery of Units pursuant to such Award (the grant of Restricted Units is not a delivery of Units for this purpose), the Units subject to such Award shall again be available for Awards under the Plan. There shall not be any limitation on the number of Awards that may be granted and paid in cash. The Board and the appropriate officers of the Company are authorized to take from time to time whatever actions are necessary, and to file any required documents with governmental authorities, stock exchanges, and transaction reporting systems to ensure that Units are available for issuance pursuant to Awards. If no Units remain available under the Plan for issuance in settlement of an Award, such Award shall be settled in cash.
(b) Sources of Units Deliverable Under Awards. Any Units delivered pursuant to an Award may consist, in whole or in part, of Units acquired in the open market, from the Partnership, any Affiliate of the Partnership, or any other Person, or newly issued Units, or any combination of the foregoing, as determined by the Committee in its sole discretion.
(c) Adjustments. In the event that any distribution (whether in the form of cash, Units, other securities, or other property), recapitalization, split, reverse split, reorganization or liquidation, merger, consolidation, split-up, spin-off, separation, combination, repurchase, acquisition of property or securities, or exchange of Units or other securities of the Partnership, issuance of warrants or other rights to purchase Units or other securities of the Partnership, or other similar transaction or event affects the Units, then the Committee shall make such adjustments as it may deem appropriate and equitable, in its sole discretion, of any or all of the following: (i) the number and type of Units (or other securities or property) with respect to which Awards may be granted; (ii) the number and type of Units (or other securities or property) subject to outstanding Awards; (iii) the grant or exercise price with respect to any Award; (iv) the performance criteria
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(if any) for an Award that vests upon satisfaction of performance criteria other than continued service as an Employee or Manager; (v) the appropriate Fair Market Value and other price determinations for such Awards; and (vi) any other limitations contained within this Plan or make provision for a cash payment to the holder of an outstanding Award; provided that, the number of Units subject to any Award shall always be a whole number.
Section 5. Eligibility. Any Employee or Manager shall be eligible to be designated a Participant by the Committee and receive an Award under the Plan.
Section 6. Awards.
(a) Options and UARs. The Committee shall have the authority to determine the Employees and Managers to whom Options and/or UARs shall be granted, the number of Units to be covered by each Option or UAR, the exercise price thereof, the Restricted Period, if any, and other conditions and limitations applicable to the Option or UAR, including the terms and conditions set forth below in this Section 6(a). Each Option and UAR Award shall be evidenced by an Award Agreement, in the form approved by the Committee, and may contain such provisions as the Committee deems appropriate; provided that, such terms and conditions are not inconsistent with the provisions of the Plan, including the provisions set forth in this Section 6(a).
(1) Exercise Price. The exercise price per Unit purchasable under an Option or subject to a UAR shall be determined by the Committee at the time the Option or UAR is granted, but may not be less than the Fair Market Value of a Unit as of the date of grant of the Option or UAR.
(2) Time and Method of Exercise. The Committee shall determine the exercise terms and the Restricted Period, if any, with respect to an Option or UAR grant, which may include, without limitation, a provision for vesting upon the achievement of specified performance goals or other events, and the method or methods by which payment of the exercise price with respect to an Option may be made or deemed to have been made, which may include, without limitation, cash, check acceptable to the Company, withholding Units from the Award, a “cashless-broker” exercise through procedures approved by the Company, delivery to the Partnership of Units already owned by the Participant (provided that such Units have been owned by the Participant for at least six months prior to delivery to the Partnership), or any combination of the above methods, having a Fair Market Value on the exercise date equal to the relevant exercise price.
(3) Termination of Service; Forfeitures. Except as otherwise provided in the terms of an Award Agreement or the terms of any written employment agreement between the Participant and the Company or any Affiliate, upon termination of all of a Participant’s service relationships, as applicable, with the Company and all of its Affiliates as an Employee or Manager for any reason (i) all outstanding, unvested Options and UARs as of the date of such termination shall be forfeited by the Participant; and (ii) the Participant may exercise his or her vested Options and UARs, but only on or prior to the date that is 90 days following the date of such termination (but in no event later than the expiration of the term of such Option or UAR, as set forth in the applicable Award Agreement); provided that, notwithstanding the foregoing provisions of this subsection (3)(ii), if the termination
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of the Participant’s service relationship was on account of death or disability (as defined in Section 22(e)(3) of the Code), the Participant may exercise his or her vested Options and UARs, but only on or prior to the date that is one year following the date of such termination (but in no event later than the expiration of the term of such Option or UAR, as set forth in the applicable Award Agreement).
(b) Restricted Units and Phantom Units. The Committee shall have the authority to determine the Employees and Managers to whom Restricted Units and/or Phantom Units shall be granted, the number of Restricted Units or Phantom Units to be granted to each such Participant, the Restricted Period, the conditions under which the Restricted Units or Phantom Units may become vested or forfeited, and such other terms and conditions as the Committee may establish with respect to such Awards. Each Restricted Unit and Phantom Unit Award shall be evidenced by an Award Agreement, in the form approved by the Committee, and may contain such provisions as the Committee deems appropriate; provided that, such terms and conditions are not inconsistent with the provisions of the Plan, including the provisions set forth in this Section 6(b).
(1) DERs. To the extent provided by the Committee, in its sole discretion, a grant of Phantom Units may or may not include a tandem DER grant, which may provide that such DERs shall be paid directly to the Participant, be credited to a bookkeeping account (with or without interest in the sole discretion of the Committee), be “reinvested” in Restricted Units or additional Phantom Units, and be subject to the same or different vesting restrictions as the tandem Phantom Unit Award, or be subject to such other provisions or restrictions as determined by the Committee in its sole discretion. Absent a contrary provision in an Award Agreement or any written employment agreement between the Participant and the Company or any Affiliate, with respect to a Phantom Unit Award that vests only upon continued service as an Employee or Manager (a “Time-Based Phantom Unit Award”), upon a distribution with respect to a Unit, DERs equal in value to such distribution shall be paid promptly to the Participant in cash without vesting restrictions. Notwithstanding the foregoing sentence, the Committee may provide that DERs paid with respect to a Time-Based Phantom Unit Award be used to acquire additional Phantom Units for the Participant, and such additional Phantom Units may be subject to such vesting and other terms as the Committee may prescribe. With respect to a Phantom Unit Award that vests upon satisfaction of performance criteria other than continued service as an Employee or Manager, DERs equal in value to such distribution that would otherwise be payable on or after the date of grant but prior to vesting of the associated Phantom Unit Award shall be credited to a bookkeeping account established by the Company, which bookkeeping account shall not bear interest and shall be subject to forfeiture until such time as the associated Phantom Unit Award vests, and the amounts credited to such bookkeeping account shall be paid to the holder of the Phantom Unit Award within 30 days following the vesting of the associated Phantom Unit Award.
(2) UDRs. To the extent provided by the Committee, in its sole discretion, a grant of Restricted Units may provide for a tandem grant of UDRs which shall be subject to the same forfeiture and other restrictions as the Restricted Unit. Absent a contrary provision in an Award Agreement or any written employment agreement between the Participant and the Company or any Affiliate, with respect to a Restricted Unit Award that vests only upon continued service as an Employee or Manager (a “Time-Based Restricted Unit Award”),
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upon a distribution with respect to a Unit, UDRs equal in value to such distribution shall be paid promptly to the Participant in cash without vesting restrictions. Notwithstanding the foregoing sentence, the Committee may provide that UDRs paid with respect to a Time-Based Restricted Unit Award be used to acquire additional Restricted Units for the Participant, and such additional Restricted Units may be subject to such vesting and other terms as the Committee may prescribe. With respect to a Restricted Unit Award that vests upon satisfaction of performance criteria other than continued service as an Employee or Manager, UDRs equal in value to such distribution that would otherwise be payable on or after the date of grant but prior to vesting of the associated Restricted Unit Award shall be credited to a bookkeeping account established by the Company, which bookkeeping account shall not bear interest and shall be subject to forfeiture until such time as the associated Restricted Unit Award vests, and the amounts credited to such bookkeeping account shall be paid to the holder of the Restricted Unit Award upon the vesting of the associated Restricted Unit Award.
(3) Forfeitures. Except as otherwise provided in the terms of an Award Agreement or the terms of any written employment agreement between the Participant and the Company or any Affiliate, upon termination of all of a Participant’s service relationships, as applicable, with the Company and all of its Affiliates as an Employee or Manager for any reason during the applicable Restricted Period, all outstanding, unvested Restricted Units and Phantom Units awarded the Participant shall be automatically forfeited upon such termination.
(4) Lapse of Restrictions.
(A) Phantom Units. Upon the vesting of each Phantom Unit and any terms of the Phantom Unit Award relating to payment, and further subject to the provisions of Section 8(b) of this Plan, the Participant shall receive from the Company one Unit or cash equal to the Fair Market Value of one Unit on the date of vesting. Whether a Phantom Unit Award is settled in Units or cash shall be determined in the sole discretion of the Committee.
(B) Restricted Units. Upon the vesting of each Restricted Unit, subject to the provisions of Section 8(b) of this Plan, the restrictions shall be removed with respect to his or her Unit, including any restrictions set forth on any Unit certificate, so that the Participant then holds an unrestricted Unit.
(5) Rights as a Unitholder. Subject to any contrary provision or conditions of an Award Agreement or any written employment agreement between the Participant and the Company or any Affiliate, upon receipt of a Restricted Unit Award, the Participant shall have the rights, if any, of a holder of Units of the Partnership with respect to the voting of the Units subject to the Award.
(c) Unit Awards. Unit Awards may be granted under the Plan to such Employees and/or Managers and in such amounts as the Committee, in its sole discretion, may select. Each Unit Award shall be evidenced by an Award Agreement, in the form approved by the Committee,
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and may contain such provisions as the Committee deems appropriate; provided that, such terms and conditions are not inconsistent with the provisions of the Plan.
(d) Other Unit-Based Awards. Other Unit-Based Awards may be granted under the Plan to such Employees and/or Managers as the Committee, in its sole discretion, may select. An Other Unit-Based Award shall be an award denominated or payable in, valued in, or otherwise based on or related to Units, in whole or in part. Each Other Unit-Based Award shall be evidenced by an Award Agreement, in the form approved by the Committee, and may contain such provisions as the Committee deems appropriate; provided that, such terms and conditions are not inconsistent with the provisions of the Plan. Upon vesting, an Other Unit-Based Award may be settled in cash, Units (including Restricted Units), other property, or any combination thereof, as determined in the sole discretion of the Committee. Except as otherwise provided in the terms of an Award Agreement or the terms of any written employment agreement between the Participant and the Company or any Affiliate, upon termination of all of a Participant’s service relationships, as applicable, with the Company and all of its Affiliates as an Employee or Manager for any reason, all outstanding, unvested Other Unit-Based Awards awarded the Participant shall be automatically forfeited upon such termination.
(e) General.
(1) Awards May Be Granted Separately or Together. Awards may, in the sole discretion of the Committee, be granted either alone or in addition to, in tandem with, or in substitution for any other Award granted under the Plan or any award granted under any other program of the Company or any Affiliate of the Company. Awards granted in addition to or in tandem with other Awards or awards granted under any other program of the Company or any Affiliate of the Company may be granted either at the same time as or at a different time from the grant of such other Awards or awards.
(2) Limits on Transfer of Awards. Except as otherwise provided in an Award Agreement or any written employment agreement between the Participant and the Company or any Affiliate:
(A) Each Option and Unit Appreciation Right shall be exercisable only by the Participant during the Participant’s lifetime, or by the person to whom the Participant’s rights shall pass by will or the laws of descent and distribution.
(B) No Award and no right under any such Award may be assigned, alienated, pledged, attached, sold, or otherwise transferred or encumbered by a Participant and any such purported assignment, alienation, pledge, attachment, sale, transfer, or encumbrance shall be void and unenforceable against the Company, the Partnership, or any Affiliate of the Company.
(3) Term of Awards. The term of each Award shall be for such period as may be determined by the Committee.
(4) Unit Certificates. All certificates for Units or other securities of the Partnership delivered under this Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem
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advisable under the Plan or the rules, regulations, and other requirements of the SEC, any stock exchange upon which such Units or other securities are then listed, and any applicable federal or state laws, and the Committee may cause a legend or legends to be inscribed on any such certificates to make appropriate reference to such restrictions.
(5) Consideration for Grants. Awards may be granted for such consideration, including services, as the Committee shall determine.
(6) Delivery of Units or Other Securities; Payment of Consideration. Notwithstanding anything in this Plan, any Award Agreement, or employment agreement to the contrary, delivery of Units pursuant to the exercise or vesting of an Award may be delayed for any period during which, in the good faith determination of the Committee, the Company or Partnership is not reasonably able to obtain Units to deliver pursuant to such Award without violating applicable law or the applicable rules or regulations of any governmental agency or authority or securities exchange. No Units or other securities shall be delivered pursuant to any Award until payment in full of any amount required to be paid pursuant to this Plan or the applicable Award Agreement (including, without limitation, any exercise price or tax withholding) is received by the Company or Partnership, as the case may be.
(7) Actions Upon the Occurrence of Certain Events. Upon the occurrence of a Change of Control, any change in applicable law or regulation affecting the Plan or Awards thereunder, or any change in accounting principles affecting the financial statements of the Partnership, or unless the Committee shall determine otherwise in an Award Agreement, the Committee, in its sole discretion, without the consent of any Participant or holder of the Award, and on such terms and conditions as it deems appropriate, may take any one or more of the following actions:
(A) provide for either (i) the termination of any Award in exchange for an amount of cash, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s rights (and, for the avoidance of doubt, if as of the date of the occurrence of such transaction or event, the Committee determines in good faith that no amount would have been attained upon the exercise of such Award or realization of the Participant’s rights, then such Award may be terminated without payment), or (ii) the replacement of such Award with other rights or property selected by the Committee in its sole discretion;
(B) provide that such Award be assumed by the successor or survivor entity, or a parent or subsidiary thereof, or be exchanged for similar options, rights, or awards covering the equity of the successor or survivor, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of equity interests, values and prices, including, but not limited to, exercise prices;
(C) make adjustments in the number and type of Units (or other securities or property) subject to outstanding Awards, and in the number and kind of outstanding Awards or in the terms and conditions of (including the exercise
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price), and the vesting and performance criteria included in, outstanding Awards, or both;
(D) provide that such Award shall be exercisable or payable, notwithstanding anything to the contrary in the Plan or the applicable Award Agreement; and
(E) provide that the Award cannot be exercised or become payable after such event (i.e., shall terminate upon such event).
(8) Prohibition on Repricing of Options and UARs. Subject to the provisions of Section 4(c) and Section 6(e)(7), the terms of outstanding Award Agreements may not be amended without the approval of the Partnership’s Unitholders so as to (A) reduce the Unit exercise price of any outstanding Options or UARs, (B) grant a new Option, UAR, or other Award in substitution for, or upon the cancellation of, any previously granted Option or UAR that has the effect of reducing the exercise price thereof, (C) exchange any Option or UAR for Units, cash, or other consideration when the exercise price per Unit under such Option or UAR exceeds the Fair Market Value of the underlying Units, or (D) take any other action that would be considered a “repricing” of an Option or UAR under the listing standards of the national securities exchange on which the Units are listed. Subject to Section 4(c) and Section 6(e)(7), the Committee shall have the authority, without the approval of the Partnership’s Unitholders, to amend any outstanding Award to increase the per Unit exercise price of any outstanding Options or UARs or to cancel and replace any outstanding Options or UARs with the grant of Options or UARs having a per Unit exercise price that is equal to or greater than the per Unit exercise price of the original Options or UARs.
(9) Section 83(b) Election. An Award Agreement may provide that the Participant may make an election under Section 83 (b) of the Code with respect to an Award of Restricted Units and/or Phantom Units. If the Participant chooses to make an election under Section 83(b) of the Code, such Section 83(b) election must be filed with the Internal Revenue Service within 30 days after the date of grant of the Award to which the election relates, and a copy of the election shall be provided to the Company.
Section 7. Amendment, Modification, and Termination. The Board may amend, modify, suspend, or terminate this Plan (and the Committee may amend an Award Agreement), except that (i) no amendment or alteration that would adversely affect the rights of any Participant under any Award previously granted to such Participant shall apply to such Participant without the consent of such Participant, and (ii) no amendment or alteration shall be effective prior to its approval by the holders of Units of the Partnership to the extent such approval is otherwise required by applicable legal requirements or the requirements of the securities exchange on which the Partnership’s Units are listed, including any amendment that (A) expands the types of Awards available under this Plan, (B) materially increases the number of Units available for Awards under this Plan, (C) materially expands the classes of persons eligible for Awards under this Plan, (D) materially extends the term of this Plan, (E) materially changes the method of determining the exercise price of Options or UARs, or (F) deletes or limits any provisions of this Plan that prohibit the repricing of Options or UARs.
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Section 8. General Provisions.
(a) No Rights to Award. No Person shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of Participants. The terms and conditions of Awards need not be the same with respect to each Participant.
(b) Tax Withholding. Unless other arrangements have been made that are acceptable to the Company, the Company or any Affiliate of the Company is authorized to withhold from any Award, from any payment due or transfer made under any Award, or from any compensation or other amount owing to a Participant at the time of the creation of compensation as defined in the applicable tax or withholding laws, rules, or regulations or at any later time, the amount (in cash, Units, Units that would otherwise be issued pursuant to such Award, or other property) of any applicable taxes payable in respect of the grant of an Award, its exercise, the lapse of restrictions thereon, or any payment or transfer under an Award or under the Plan, and to take such other action as may be necessary in the opinion of the Company or Partnership to satisfy its withholding obligations for the payment of such taxes.
(c) No Right to Employment or Services. The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of the Company or any Affiliate of the Company or in the service of the Company or any Affiliate of the Company as a Manager. Furthermore, the Company or an Affiliate of the Company may at any time dismiss a Participant from employment or service free from any liability or any claim under this Plan, unless otherwise expressly provided in the Plan, any Award Agreement, or other agreement.
(d) Governing Law. The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the laws of the State of Delaware, without regard to its conflicts of laws principles.
(e) Severability. If any provision of this Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable law or, if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person, or Award and the remainder of the Plan and any such Award shall remain in full force and effect.
(f) Other Laws. The Committee may refuse to issue or transfer any Units or other consideration under an Award if, in its sole discretion, it determines that the issuance or transfer of such Units or such other consideration might violate any applicable law or regulation, the rules of the principal securities exchange on which the Units are then traded, or entitle the Partnership or an Affiliate of the Partnership to recover the same under Section 16(b) of the Exchange Act, and any payment tendered by a Participant, other holder, or beneficiary in connection with the exercise of such Award shall be promptly refunded to the relevant Participant, holder, or beneficiary.
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(g) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company, the Partnership, or any participating Affiliate and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company, the Partnership, or any participating Affiliate pursuant to an Award, such right shall be no greater than the right of any general unsecured creditor of the Company, the Partnership, or any participating Affiliate.
(h) No Fractional Units. No fractional Units shall be issued or delivered pursuant to this Plan or any Award, and the Committee shall determine whether cash, other securities, or other property shall be paid or transferred in lieu of any fractional Units or whether such fractional Units or any rights thereto shall be canceled, terminated, or otherwise eliminated.
(i) Headings. Headings are given to the Sections and subsections of this Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof.
(j) Facility of Payment. Any amounts payable hereunder to any natural person under legal disability or who, in the judgment of the Committee, is unable to manage properly his or her financial affairs, may be paid to the legal representative of such natural person, or may be applied for the benefit of such natural person in any manner that the Committee may select, and the Company and any Affiliate of the Company shall be relieved of any further liability for payment of such amounts.
(k) Participation by Affiliates. In making Awards to Employees employed by an Affiliate of the Company, the Committee shall be acting on behalf of such Affiliate, and to the extent the Partnership has an obligation to reimburse such Affiliate for compensation paid for services rendered for the benefit of the Partnership, such payments or reimbursement payments may be made by the Partnership directly to such Affiliate, and, if made to the Company, shall be received by the Company as agent for such Affiliate.
(l) Gender and Number. Where the context deems it appropriate, words in the masculine gender shall include the feminine gender, the plural shall include the singular, and the singular shall include the plural.
(m) Compliance with Section 409A.
(1) Awards made under this Plan are intended to be exempt from Section 409A of the Code, and all provisions of this Plan shall be construed and interpreted in a manner consistent with such intent. As such, unless the Committee provides otherwise in an Award Agreement, each Award (other than Options and UARs structured to be exempt from the requirements of Section 409A of the Code) shall be settled no later than two and one-half months after the end of the first year in which the Award (or such portion thereof) is no longer subject to a “substantial risk of forfeiture” within the meaning of Section 409A of the Code.
(2) If the Committee determines that an Award is intended to be “deferred compensation” subject to Section 409A of the Code, the applicable Award Agreement shall
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include terms that are designed to satisfy the requirements of Section 409A of the Code and the following shall govern such award:
(A) Except as otherwise provided in the Award Agreement or any written employment agreement between the Participant and the Company or any Affiliate, any payment due upon a Participant’s cessation of providing services shall be paid only upon such the Participant’s “separation from service” within the meaning of Section 409A of the Code.
(B) Any payment to be made with respect to such Award in connection with the Participant’s separation from service within the meaning of Section 409A of the Code (and any other payment that would be subject to the limitations in Section 409A(a)(2)(b) of the Code) shall be delayed until six months after the Participant’s separation from service (or earlier death) in accordance with the requirements of Section 409A of the Code.
(C) To the extent necessary to comply with Section 409A of the Code, any other securities, other Awards or other property that the Company or the Partnership may deliver in lieu of Units in respect of an Award shall not have the effect of deferring delivery or payment beyond the date on which such delivery or payment would occur with respect to the Units that would otherwise have been deliverable (unless the Committee elects a later date for this purpose in accordance with the requirements of Section 409A of the Code).
(D) If the Award includes a “series of installment payments” (within the meaning of Section 1.409A-2(b)(2)(iii) of the Treasury Regulations), the Participant’s right to the series of installment payments shall be treated as a right to a series of separate payments and not as a right to a single payment.
(E) If the Award includes “dividend equivalents” (within the meaning of Section 1.409A-3(e) of the Treasury Regulations), the Participant’s right to the dividend equivalents shall be treated separately from the right to other amounts under the Award.
(n) No Guarantee of Tax Consequences. None of the Board, the Partnership, the Company, any Affiliate of the Company, or the Committee makes any commitment or guarantee that any federal, state, or local tax treatment will apply or be available to any Person participating or eligible to participate under this Plan.
(o) Claw-Back Policy. All Awards (including any proceeds, gains, or other economic benefit actually or constructively received by the Participant upon any receipt or exercise of any Award or upon the receipt or resale of any Units underlying the Award) shall be subject to the provisions of any claw-back policy implemented by the Partnership or the Company prior to, on, or after the Effective Date of this Plan, including, without limitation, any claw-back policy adopted to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and any rules or regulations promulgated thereunder, to the extent set forth in such claw-back policy and/or in the applicable Award Agreement.
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Section 9. Term of the Plan. The Plan shall be effective as of the Effective Date. The Plan shall continue until the earliest of (i) the date terminated by the Board, (ii) all Units available for delivery under the Plan have been issued to Participants, or (iii) the 10th anniversary of the Effective Date. However, any Award granted prior to such termination, and the authority of the Board or the Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to waive any conditions or rights under such Award, shall extend beyond such termination date.
Approved by Board June 24, 2015
Consent of Unitholders effective September 15, 2015
Amended effective as of September 10, 2019
Amended and restated December 5, 2022
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Exhibit 10.2
GREYSTONE HOUSING IMPACT INVESTORS LP
2015 EQUITY INCENTIVE PLAN
FORM OF RESTRICTED UNIT AWARD AGREEMENT
This Restricted Unit Award Agreement (this “Agreement”) is made and entered into by and between Greystone AF Manager LLC, a Delaware limited liability company (the “Company”), which is the general partner of America First Capital Associates Limited Partnership Two, a Delaware limited partnership (the “General Partner”), which is the general partner of Greystone Housing Impact Investors LP, a Delaware limited partnership (the “Partnership”), and _____________ (the “Participant”). This Agreement is entered into as of the ____day __________, 20___ (the “Date of Grant”). Capitalized terms used in this Agreement but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan (as defined below), unless the context requires otherwise.
RECITALS
WHEREAS, the Greystone Housing Impact Investors LP 2015 Equity Incentive Plan (the “Plan”) was adopted on June 24, 2015, to attract, retain, and motivate Employees and Managers; and
WHEREAS, the Board of Managers of the Company (the “Board”) has authorized the grant to Employees and Managers of restricted units of the Partnership as part of their compensation for services performed for the Company, the Partnership, or any other entity which is an affiliate (within the meaning of such term under the Exchange Act and the rules promulgated thereunder) of the foregoing entities (collectively, the “Partnership Entities”).
NOW, THEREFORE, in consideration of the Participant’s agreement to provide or to continue providing services to the Partnership Entities, the Participant and the Company agree as follows:
Section 1. Grant.
The Company hereby grants to the Participant as of the Date of Grant an award of ___________ Units, subject to the terms and conditions set forth in the Plan, which is incorporated herein by reference, and in this Agreement, including, without limitation, those restrictions described in Section 2 below (the “Restricted Units”).
Section 2. Restricted Units.
The Restricted Units are restricted in that they may be forfeited to the Company and in that they may not, except as otherwise provided in Section 5 below, be transferred or otherwise disposed of by the Participant until such restrictions are removed or expire as described in Section 4 of this Agreement. The Company shall issue in the Participant’s name the Restricted Units and shall retain the Restricted Units until the restrictions on such Restricted Units expire or until the Restricted Units are forfeited as described in Section 4 of this Agreement. The Participant agrees that the Company will hold the Restricted Units pursuant to the terms of this
Agreement until such time as the Restricted Units are either delivered to the Participant or forfeited pursuant to this Agreement.
Section 3. Rights of Participant; Unit Distribution Rights.
Effective as of the Date of Grant, the Participant shall be treated for all purposes as a unitholder with respect to all of the Restricted Units granted to him pursuant to Section 1 above (except that the Participant shall not be treated as the owner of the Units for federal income tax purposes until the Restricted Units vest (unless the Participant makes an election under Section 83(b) of the Code, in which case the Participant shall be treated as the owner of the Units for all purposes on the Date of Grant)), and shall, except as provided herein, have all of the rights and obligations of a unitholder with respect to all such Restricted Units, including any right to vote with respect to such Restricted Units and to receive any UDRs thereon if, as, and when declared and paid by the Partnership. Notwithstanding the preceding provisions of this Section 3, the Restricted Units shall be subject to the restrictions described herein, including, without limitation, those described in Section 2 above.
Section 4. Forfeiture and Expiration of Restrictions.
Vesting Date Portion Vested
The number of Restricted Units that vest as of each date described above will be rounded down to the nearest whole Restricted Unit, with any remaining Restricted Units to vest with the final installment.
(b) Termination of Service or Change of Control.
(i) Termination for Any Reason. If, at any time prior to the final Vesting Date, the Participant’s employment with the Partnership Entities or membership on the Board, as applicable, is terminated for any reason other than the Participant’s death or Disability (as defined below), then all Restricted Units granted pursuant to this Agreement that have not yet vested as of the date of the Participant’s termination shall become null and void as of the date of such termination, shall be forfeited to the Company, and the Participant shall cease to have any rights with respect thereto; provided, however, that the portion, if any, of the Restricted Units for which forfeiture restrictions have lapsed as of the Participant’s date of termination shall survive.
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(ii) Termination Due to Death or Disability. If, at any time prior to the final Vesting Date, the Participant’s employment with the Partnership Entities or membership on the Board, as applicable, is terminated by reason of the Participant’s death or Disability (as defined below), then all Restricted Units granted pursuant to this Agreement that remain unvested as of the date of the Participant’s termination shall immediately become fully vested and nonforfeitable as of the date of such termination.
(iii) Change of Control. In the event of a Change of Control prior to the final Vesting Date, except as otherwise provided in the Plan, all restrictions described in Section 2 above shall lapse and all Restricted Units granted pursuant to this Agreement shall become immediately vested and nonforfeitable.
(iv) “Disability.” For purposes of this Agreement, “Disability” shall mean (A) the mental or physical disability of the Participant defined as “Disability” under the terms of the long-term disability plan sponsored by the Company and in which the Participant is covered, as amended from time to time in accordance with the provisions of such plan; or (B) a determination by the Committee, in its sole discretion, of total disability (based on medical evidence) that precludes the Participant from engaging in any occupation or employment for wage or profit for at least 12 months and appears to be permanent. All decisions by the Committee relating to a Participant’s Disability (including a decision that a Participant is not disabled), shall be final and binding on all parties.
Section 5. Limitations on Transfer.
The Participant agrees that he or she shall not dispose of (meaning, without limitation, sell, transfer, pledge, exchange, hypothecate, or otherwise dispose of) any Restricted Units hereby acquired prior to the applicable Vesting Dates, including pursuant to a domestic relations order issued by a court of competent jurisdiction. Any attempted disposition of the Restricted Units in violation of the preceding sentence shall be null and void.
Section 6. Nontransferability of Agreement.
This Agreement and all rights under this Agreement shall not be transferable by the Participant other than by will or pursuant to applicable laws of descent and distribution. Any rights and privileges of the Participant in connection herewith shall not be transferred, assigned, pledged, or hypothecated by the Participant or by any other person or persons, in any way, whether by operation of law, or otherwise, and shall not be subject to execution, attachment, garnishment, or similar process. In the event of any such occurrence, the Restricted Units shall automatically be forfeited.
Section 7. Adjustment of Restricted Units.
The number of Restricted Units granted to the Participant pursuant to this Agreement shall be adjusted to reflect Unit splits or other changes in the capital structure of the Partnership, all in accordance with the Plan. All provisions of this Agreement shall be applicable to such new or additional or different Units or securities distributed or issued pursuant to the Plan to the same
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extent that such provisions are applicable to the Units with respect to which they were distributed or issued.
Section 8. Delivery of Vested Units.
Promptly following the expiration of the restrictions on the Restricted Units as contemplated in Section 4 of this Agreement, and subject to Section 9 below, the Company shall cause to be issued and delivered to the Participant or the Participant’s designee the number of Restricted Units as to which restrictions have lapsed, free of any restrictive legend relating to the lapsed restrictions, and shall pay to the Participant any previously unpaid UDRs distributed with respect to the Restricted Units. Neither the value of the Restricted Units nor the UDRs shall bear any interest owing to the passage of time.
Section 9. Securities Act.
The Company shall have the right, but not the obligation, to cause the Restricted Units to be registered under the appropriate rules and regulations of the SEC. The Company shall not be required to deliver any Units hereunder if, in the opinion of counsel for the Company, such delivery would violate the Securities Act of 1933, as amended, or any other applicable federal or state securities laws or regulations. By accepting this grant, the Participant agrees that any Units that the Participant may acquire upon vesting of this Award will not be sold or otherwise disposed of in any manner that would constitute a violation of any applicable federal or state securities laws.
Section 10. Copy of the Plan.
By the execution of this Agreement, the Participant acknowledges receipt of a copy of the Plan. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any applicable law, then such provision will be deemed to be modified to the minimum extent necessary to render it legal, valid, and enforceable; and if such provision cannot be so modified, then this Agreement will be construed as if not containing the provision held to be invalid, and the rights and obligations of the parties will be construed and enforced accordingly.
Section 11. Notices.
Whenever any notice is required or permitted hereunder, such notice must be in writing and personally delivered or sent by U.S. mail. Any such notice required or permitted to be delivered hereunder shall be deemed to be delivered on the date on which it is personally delivered or, whether actually received or not, on the third business day (on which banking institutions in the State of Nebraska are open) after it is deposited in the United States mail, certified or registered, postage prepaid, addressed to the person who is to receive it at the address which such person has theretofore specified by written notice delivered in accordance herewith. The Company or the Participant may change at any time and from time to time by written notice to the other, the address which it or he or she previously specified for receiving notices. The Company and the Participant agree that any notices shall be given to the Company or to the Participant at the following addresses:
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Company: |
Greystone AF Manager LLC |
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Attn: Chief Financial Officer |
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14301 FNB Parkway, Suite 211 |
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Omaha, Nebraska 68154 |
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Participant: |
At the Participant’s current address as shown in the Company’s records. |
Section 12. General Provisions.
(a) Administration. This Agreement shall at all times be subject to the terms and conditions of the Plan. The Committee shall have sole and complete discretion with respect to all matters reserved to it by the Plan and decisions of the Committee with respect thereto and with respect to this Agreement shall be final and binding upon the Participant and the Company. In the event of any conflict between the terms and conditions of this Agreement and the Plan, the provisions of the Plan shall control.
(b) Continuation of Service. This Agreement shall not be construed to confer upon the Participant any right to continue in the service of the Partnership Entities.
(c) Governing Law. This Agreement shall be interpreted and administered under the laws of the State of Delaware, without giving effect to any conflict of laws provisions.
(d) Amendments. This Agreement may be amended only by a written agreement executed by the Company and the Participant, except that the Committee may unilaterally waive any conditions or rights under, amend any terms of, or alter this Agreement provided no such change (other than pursuant to Section 4(c) or 6(e)(7) of the Plan) materially reduces the rights or benefits of the Participant with respect to the Restricted Units without his or her consent.
(e) Binding Effect. This Agreement shall be binding upon and inure to the benefit of any successor or successors of the Company and upon any person lawfully claiming under the Participant.
(f) Entire Agreement. This Agreement constitutes the entire agreement of the parties with regard to the subject matter hereof, and contains all the covenants, promises, representations, warranties, and agreements between the parties with respect to the Restricted Units granted hereby. Without limiting the scope of the preceding sentence, all prior understandings and agreements, if any, among the parties hereto relating to the subject matter hereof are hereby null and void and of no further force and effect.
(g) No Liability for Good Faith Determinations. Neither the Partnership Entities, nor the members of the Committee or the Board, nor any officer of the Company or Partnership, shall be liable for any act, omission, or determination taken or made in good faith with respect to this Agreement or the Restricted Units granted hereunder.
(h) No Guarantee of Interests. The Board and the Partnership Entities do not guarantee the Units from loss or depreciation.
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(i) Withholding Taxes. To the extent that the grant or vesting of a Restricted Unit or distribution thereon results in the receipt of compensation by the Participant with respect to which any Partnership Entity has a tax withholding obligation pursuant to applicable law, unless other arrangements have been made by the Participant that are acceptable to such Partnership Entity, the Participant shall deliver to the Partnership Entity such amount of money as the Partnership Entity may require to meet its withholding obligations under applicable law. No issuance of an unrestricted Unit shall be made pursuant to this Agreement until the Participant has paid or made arrangements approved by the Partnership Entity to satisfy in full the applicable tax withholding requirements of the Partnership Entity with respect to such event.
(j) Insider Trading Policy. The terms of the Company’s Insider Trading Policy with respect to Units are incorporated herein by reference.
(k) Section 83(b) Election. The Participant agrees that, if he or she makes an election under Section 83(b) of the Code with regard to Restricted Units, the Participant will notify the Company in writing within two (2) days after making such election.
Section 13. Claw-Back Policy.
In accordance with Section 8(o) of the Plan, the Restricted Units (including any distributions paid on the Restricted Units and any proceeds, gain, or other economic benefit actually or constructively received by the Participant in connection with or related to the Restricted Units or the sale of any Vested Units) shall be subject to the provisions of any claw-back policy implemented by the Partnership or the Company prior to, on, or after the Effective Date of the Plan.
Section 14. Lock-Up Agreement.
The Participant shall agree, if so requested by the Company or the Partnership and any underwriter in connection with any public offering of securities of the Partnership or any Affiliate thereof, not to directly or indirectly offer, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right, or warrant
for the sale of or otherwise dispose of or transfer any Units held by him or her for such period, not to exceed one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act of 1933, as amended, (the “Securities Act”) in connection with such public offering, as such underwriter shall specify reasonably and in good faith. The Company or the Partnership may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such 180-day period. Notwithstanding the foregoing, the 180-day period may be extended in the discretion of the Company for up to such number of additional days as is deemed necessary by such underwriter or the Company or Partnership to continue coverage by research analysts in accordance with FINRA Rule 2711 or any successor or other applicable rule.
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Section 15. Conformity to Securities Laws.
The Participant acknowledges that the Plan and this Agreement are intended to conform to the extent necessary with all provisions of the Securities Act and the Exchange Act, any and all regulations and rules promulgated by the SEC thereunder, and all applicable state securities laws and regulations. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the Phantom Units are granted, only in such a manner as to conform to such laws, rules, and regulations. To the extent permitted by applicable law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to such laws, rules, and regulations.
Section 16. Code Section 409A.
None of the Phantom Units or any amounts paid pursuant to this Agreement are intended to constitute or provide for a deferral of compensation that is subject to Section 409A of the Code. Nevertheless, to the extent that the Committee determines that the Phantom Units may not be exempt from (or compliant with) Section 409A of the Code, the Committee may (but shall not be required to) amend this Agreement in a manner intended to comply with the requirements of Section 409A of the Code or an exemption therefrom (including amendments with retroactive effect), or take any other actions as it deems necessary or appropriate to (a) exempt the Phantom Units from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the Phantom Units, or (b) comply with the requirements of Section 409A of the Code. To the extent applicable, this Agreement shall be interpreted in accordance with the provisions of Section 409A of the Code. Notwithstanding anything in this Agreement to the contrary, to the extent that any payment or benefit hereunder constitutes non-exempt “nonqualified deferred compensation” for purposes of Section 409A of the Code, and such payment or benefit would otherwise be payable or distributable hereunder by reason of the Participant’s cessation of Service, all references to the Participant’s cessation of Service shall be construed to mean a Separation from Service, and the Participant shall not be considered to have a cessation of Service unless such cessation constitutes a Separation from Service with respect to the Participant.
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The Participant’s signature below indicates the Participant’s agreement with and understanding that this award is subject to all of the terms and conditions contained in the Plan and in this Agreement, and that, in the event that there are any inconsistencies between the terms of the Plan and the terms of this Agreement, the terms of the Plan shall control. The Participant further acknowledges that the Participant has read and understands the Plan and this Agreement, which contains the specific terms and conditions of this grant of Restricted Units. The Participant hereby agrees to accept as binding, conclusive, and final all decisions or interpretations of the Committee upon any questions arising under the Program or this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its officer thereunto duly authorized, and the Participant has set his or her hand as to the date and year first above written.
THE COMPANY:
GREYSTONE AF MANAGER LLC
BY: __________________________________________
Name:
Title:
PARTICIPANT:
________________________________________________
[Name]
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Signature Page
Exhibit 99.1
PRESS RELEASE |
FOR IMMEDIATE RELEASE |
|
Omaha, Nebraska |
December 5, 2022
INVESTOR CONTACT:
Andy Grier
Investors Relations
402-952-1235
MEDIA CONTACT:
Karen Marotta
Greystone
212-896-9149
Karen.Marotta@greyco.com
America First Multifamily Investors, L.P. Announces Name Change to Greystone Housing Impact Investors LP and Listing on the New York Stock Exchange
Omaha, Nebraska – America First Multifamily Investors, L.P. announced that, effective 12:01 a.m. Eastern Time on December 5, 2022, it has changed its legal name to Greystone Housing Impact Investors LP (NYSE: GHI) (the “Partnership”). In addition, the Partnership also announced the commencement of trading of its beneficial unit certificates representing assigned limited partnership interests (“BUCs”) on the New York Stock Exchange (“NYSE”) as of the opening of markets on December 5, 2022 under the ticker symbol “GHI”.
The Partnership will ring the opening bell at the NYSE on Monday, December 12th to commemorate its name change and initial listing on the NYSE.
“Our alignment with the well-respected Greystone brand and our listing on the NYSE are key steps in our strategy to enhance the public profile of the Partnership for the benefit of our unitholders,” said Kenneth C. Rogozinski, Chief Executive of Officer of the Partnership. “In addition, we believe our new name highlights the positive social impact of the Partnership’s various investments that address the significant need for affordable multifamily housing across the United States.”
In conjunction with the Partnership’s name change, the general partner of the Partnership’s general partner approved the Second Amended and Restated Agreement of Limited Partnership (the “Partnership Agreement”) dated December 5, 2022, which supersedes the Partnership’s First Amended and Restated Agreement of Limited Partnership dated September 15, 2015, as further amended (the “Prior Partnership Agreement”). In addition, the general partner of the Partnership’s general partner approved the Amended and Restated Greystone Housing Impact Investors LP 2015 Equity Incentive Plan (the “Plan”) which supersedes the America First Multifamily Investors, L.P. 2015 Equity Incentive Plan (the “Prior Plan”). The Partnership Agreement and Plan include various administrative updates and incorporate various amendments to the Prior Partnership Agreement and Prior Plan, respectively. The changes to the Prior Partnership Agreement and Prior Plan do not require the approval of the Partnership’s BUC holders. Copies of the Partnership Agreement and the Plan are included in a Current Report on Form 8-K filed with the Securities and Exchange Commission (“SEC”) on December 5, 2022, which can be viewed on the SEC’s EDGAR site.
About Greystone Housing Impact Investors LP
Greystone Housing Impact Investors LP (formerly known as America First Multifamily Investors, L.P.) was formed in 1998 under the Delaware Revised Uniform Limited Partnership Act for the primary purpose of acquiring, holding, selling and otherwise dealing with a portfolio of mortgage revenue bonds which have been issued to provide construction and/or permanent financing for affordable multifamily, student housing and commercial properties. The Partnership is pursuing a business strategy of acquiring additional mortgage revenue bonds and other investments on a leveraged basis. The Partnership expects and believes the interest earned on these mortgage revenue bonds is excludable from gross income for federal income tax purposes. The Partnership seeks to achieve its investment growth strategy by investing in additional mortgage revenue bonds and other investments as permitted by its Second Amended and Restated Limited Partnership Agreement, dated December 5, 2022, taking advantage of attractive financing structures available in the securities market, and entering into interest rate risk management instruments. Greystone Housing Impact Investors LP press releases are available at www.ghiinvestors.com.
About Greystone
Greystone is a private national commercial real estate finance company with an established reputation as a leader in multifamily and healthcare finance, having ranked as a top FHA, Fannie Mae, and Freddie Mac lender in these sectors. Loans are offered through Greystone Servicing Company LLC, Greystone Funding Company LLC and/or other Greystone affiliates. For more information, visit www.greystone.com.
Safe Harbor Statement
Information contained in this press release contains “forward-looking statements,” which are based on current expectations, forecasts and assumptions that involve risks and uncertainties that could cause actual outcomes and results to differ materially. These risks and uncertainties include, but are not limited to, risks involving current maturities of our financing arrangements and our ability to renew or refinance such maturities, fluctuations in short-term interest rates, collateral valuations, mortgage revenue bond investment valuations and overall economic and credit market conditions. For a further list and description of such risks, see the reports and other filings made by the Partnership with the Securities and Exchange Commission, including but not limited to, its Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K. Readers are urged to consider these factors carefully in evaluating the forward-looking statements. The Partnership disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.