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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
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Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: May 24, 1999
RECKSON ASSOCIATES REALTY CORP.
and
RECKSON OPERATING PARTNERSHIP, L.P.
(Exact name of each Registrant as specified in its Charter)
Exhibit 3.1
RECKSON ASSOCIATES REALTY CORP.
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF A SERIES OF SHARES OF PREFERRED STOCK
Reckson Associates Realty Corp., a Maryland corporation (the
"Corporation"), certifies to the State Department of Assessments and Taxation of
Maryland that:
First: Pursuant to the authority expressly vested in the Board of Directors of
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the Corporation by Article VI of its Charter, as heretofore amended (which, as
hereafter restated or amended from time to time, are together with these
Articles Supplementary herein called the "Articles"), the Board of Directors
has, by resolution, duly designated and classified 6,000,000 shares of the
Preferred Stock of the Corporation into a series designated Series B Convertible
Cumulative Preferred Stock and has provided for the issuance of such series.
Second: The preferences, rights, voting powers, restrictions, limitations as to
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distributions, qualifications and terms and conditions of redemption of the
shares of such series of Preferred Stock, which upon any restatement of the
Articles shall be included as part of Article VI of the Articles, are as
follows:
SERIES B CONVERTIBLE CUMULATIVE PREFERRED STOCK
(1) Designation and Number. A series of Preferred Stock of the Corporation
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("Preferred Stock"), designated the "Series B Cumulative Convertible Preferred
Stock" (the "Series B Preferred"), is hereby established. The number of shares
of the Series B Preferred shall be 6,000,000.
(2) Rank. The Series B Preferred will, with respect to distribution rights and
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rights upon liquidation, dissolution or winding up of the Corporation, rank: (a)
senior to all classes or series of Common Stock of the Corporation ("Common
Stock") and to all equity securities issued by the Corporation the terms of
which provide that such equity securities shall rank junior to such Series B
Preferred; (b) on a parity with the 7 5/8% Series A Convertible Cumulative
Preferred Stock of the Corporation and all equity securities issued by the
Corporation other than those referred to in clauses (a) and (c); and (c) junior
to all equity securities issued by the Corporation that rank senior to the
Series B Preferred in accordance with Section 6(d). The term "equity securities"
shall not include convertible debt securities.
(3) Distributions.
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(a) Holders of the shares of Series B Preferred shall be entitled to
receive, when and as authorized by the Board of Directors, out of funds legally
available for the payment of distributions, cumulative cash distributions at a
rate equal to (i) in the case of the period from and including the date of
original issue to but excluding April 30, 2000, 7.85% per annum of the
liquidation preference per share (equivalent to $1.9625 per annum per share),
(ii) in the case of the period from and including April 30, 2000 to but
excluding April 30, 2001, 8.35% per annum of the liquidation preference per
share (equivalent to $2.0875 per annum per share) and (iii) in the case of the
period from and including April 30, 2001 and thereafter until any applicable
redemption or conversion, 8.85% per annum of the liquidation preference per
share (equivalent to $2.2125 per annum per share). Distributions on the Series B
Preferred shall be cumulative from the date of original issue and shall be
payable quarterly in arrears on January 31, April 30, July 31 and October 31 of
each year or, if not a Business Day, the next succeeding Business Day,
commencing July 31, 1999 (each, a "Distribution Payment Date"). Any distribution
payable on the Series B Preferred for a partial distribution period will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Distributions will be payable to holders of record as they appear in the stock
transfer records of the Corporation at the close of business on the applicable
record date, which shall be such date designated by the Board of Directors of
the Corporation for the payment of distributions that is not more than 30 nor
less than 10 days prior to such Distribution Payment Date (each, a "Distribution
Payment Record Date"). When used herein, the term "distributions" shall include
any liquidated damages referred to in clause (g) below.
(b) No distributions on the Series B Preferred shall be authorized by the
Board of Directors of the Corporation or be paid or set apart in trust for
payment by the Corporation at such time as the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness, prohibits such authorization, payment or setting apart for payment
or provides that such authorization, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such authorization or
payment shall be restricted or prohibited by law.
(c) Distributions on the Series B Preferred will accumulate whether or not
the Corporation has earnings, whether or not there are funds legally available
for the payment of such distributions and whether or not such distributions are
authorized. Accumulated but unpaid distributions on the Series B Preferred will
not bear interest and holders of the Series B Preferred will not be entitled to
any distributions in excess of full cumulative distributions as described above.
(d) No full distributions will be authorized or paid or set apart in trust
for payment on any equity securities of the Corporation ranking, as to
distributions, on a parity with or junior to the Series B Preferred for any
period unless full distributions have been or contemporaneously are authorized
and paid or authorized and a sum sufficient for the payment thereof is set apart
in trust for such payment on the Series B Preferred for all past distribution
periods and the then current distribution period. When distributions are not
paid in full or a sum sufficient for such full payment is not so set apart in
trust upon the Series B Preferred and the other equity securities of the
Corporation ranking on a parity as to distributions with the Series B Preferred,
all distributions authorized upon the Series B Preferred and any other equity
securities of the Corporation ranking on a parity as to distributions with the
Series B Preferred shall be authorized pro rata so that the amount of
distributions authorized per share of Series B Preferred and such other equity
securities shall in all cases bear to each other the same ratio that accumulated
distributions per share on the Series B Preferred and such other equity
securities (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such equity securities do not
have cumulative distributions) bear to each other. No interest, or sum of money
in lieu of interest, shall be payable in respect of any distribution payment or
payments on Series B Preferred which may be in arrears.
(e) Except as provided in Section 3(d), unless full distributions on the
Series B Preferred have been or contemporaneously are authorized and paid or
authorized and a sum sufficient for the payment thereof is set apart in trust
for payment for all past distribution periods and the then current distribution
period, no distributions (other than in shares of Common Stock or other equity
securities of the Corporation ranking junior to the Series B Preferred as to
distributions and upon liquidation) shall be authorized or paid or set aside in
trust for payment or other distribution shall be authorized or made upon the
Common Stock or any other equity securities of the Corporation ranking junior to
or on a parity with the Series B Preferred as to distributions or upon
liquidation, nor shall any shares of Common Stock or any other equity securities
of the Corporation ranking junior to or on a parity with the Series B Preferred
as to distributions or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any monies be paid to or made available for a
sinking fund for the redemption of any such shares) by the Corporation (except
(1) by conversion into or exchange for other stock of the Corporation ranking
junior to the Series B Preferred as to distributions and upon liquidation or (2)
redemptions for the purpose of preserving the Corporation's status as a real
estate investment trust (a "REIT") under the Internal Revenue Code of 1986, as
amended (the "Code").
(f) Any distribution payment made on shares of the Series B Preferred shall
first be credited against the earliest accumulated but unpaid distribution due
with respect to such shares which remains payable.
(g) If the Corporation fails to file a registration statement within the
period of time required by the Registration Rights Agreement dated June 2, 1999
between the Corporation and the initial purchasers named therein (the
"Registration Rights Agreement"), or such registration statement does not become
effective within the period of time required by the Registration Rights
Agreement, or the Corporation fails to maintain the effectiveness of the
required registration statement as required by the Registration Rights
Agreement, liquidated damages shall accumulate on the liquidation preference of
the Series B Preferred at a rate of 0.25% per annum (equivalent to a fixed
annual amount of $0.125 per share).
(4) Liquidation Preference.
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(a) Upon any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation (referred to herein as a "liquidation"),
the holders of the Series B Preferred will be entitled to be paid out of the
assets of the Corporation legally available for distribution to its stockholders
liquidating distributions, in cash or property at its fair market value as
determined by the Corporation's Board of Directors, in the amount of a
liquidation preference of $25.00 per share, plus an amount equal to any
accumulated and unpaid distributions to the date of such liquidation, before any
distribution or payment is made to holders of Common Stock or any other equity
securities of the Corporation ranking junior to the Series B Preferred as to the
distribution of assets upon a liquidation. After payment of the full amount of
the liquidating distributions to which they are entitled, the holders of Series
B Preferred will have no right or claim to any of the remaining assets of the
Corporation.
(b) In the event that, upon any liquidation of the Corporation, the
available assets of the Corporation are insufficient to pay the amount of the
liquidating distributions on all outstanding shares of Series B Preferred and
the corresponding amounts payable on all other equity securities of the
Corporation ranking on a parity with Series B Preferred in the distribution of
assets upon a liquidation, then the holders of Series B Preferred and all other
such equity securities shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions per share to which they would
otherwise be respectively entitled.
(c) The consolidation or merger of the Corporation with or into any other
entity, or the merger of another entity with or into the Corporation, or a
statutory share exchange by the Corporation, or the sale, lease or conveyance of
all or substantially all of the property or business of the Corporation, shall
not be deemed to constitute a liquidation of the Corporation.
(d) The liquidation preference of the outstanding shares of Series B
Preferred will not be added to the liabilities of the Corporation for the
purpose of determining whether under the Maryland General Corporation Law a
distribution may be made to stockholders of the Corporation whose preferential
rights upon dissolution of the Corporation are junior to those of holders of
Series B Preferred. This Section 4(d) shall be without prejudice to the
provisions of Sections 3(a) and 4(a) hereof.
(5) Redemption.
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(a) Shares of Series B Preferred will not be redeemable prior to March 2,
2002, subject to the provisions of Sections 5(d) and 8. On or after March 2,
2002, the Corporation may redeem shares of the Series B Preferred, in whole or
in part, from time to time, at a redemption price per share in cash equal to (i)
in the case of a redemption from and including March 2, 2002 to and including
June 2, 2003, an amount that provides an annual rate of return in respect of
such share of 15% calculated based on the timing and amount of all payments
(including all distributions other than liquidated damages) made to and
including the date of redemption, relative to the liquidation preference
thereof, (ii) in the case of a redemption from and including June 2, 2003 to and
including June 2, 2004, $25.50 and (iii) in the case of a redemption from and
including June 2, 2004 and thereafter, $25.00, plus, in each case, all
accumulated and unpaid distributions thereon to the date of redemption (the
"Cash Redemption Right").
(b) In addition to the Cash Redemption Right, on or after March 2, 2002,
the Series B Preferred shall be redeemable by the Corporation, in whole or in
part, at the option of the Corporation, for such number of shares of Common
Stock (as defined in Section 7(a)) as equals the redemption price per share of
Series B Preferred referred to in clause (i), (ii) or (iii), as applicable, in
Section 5(a), exclusive of accumulated and unpaid distributions to the date of
redemption, divided by the Conversion Price (as defined in Section 7(a)) as of
the opening of business on the date set forth for such redemption (the "Stock
Redemption Right").
(c) If fewer than all of the outstanding shares of Series B Preferred are
to be redeemed pursuant to the Cash Redemption Right or the Stock Redemption
Right, the shares to be redeemed shall be determined pro rata or by lot or in
such other manner as prescribed by the Board of Directors of the Corporation. In
the event that such redemption is to be by lot and, as a result of such
redemption, any holder of Series B Preferred would own, or be deemed by virtue
of the attribution provisions of the Code to own, in excess of 9.0% in value of
all outstanding equity securities of the Corporation because such holder's
shares were not redeemed, or were only redeemed in part, then the Corporation,
to the extent permitted by operative law, will redeem the requisite number of
shares of Series B Preferred of such stockholder such that such stockholder will
not own, or be deemed by virtue of the attribution provisions of the Code to
own, in excess of 9.0% in value of all equity securities of the Corporation
issued and outstanding subsequent to such redemption.
(d) Notwithstanding anything to the contrary contained herein, the
Corporation may redeem shares of Series B Preferred at any time, whether or not
prior to March 2, 2002, if the Board of Directors of the Corporation determines
that such redemption is necessary or advisable to preserve the Corporation's
status as a REIT at a redemption price per share equal to (i) in the case of a
redemption prior to March 2, 2002, in cash or stock , the greater of the
liquidation preference of such shares of Series B Preferred and the fair market
value of such shares of Series B Preferred as determined in good faith by the
Corporation's Board of Directors; and (ii) in the case of a redemption or after
March 2, 2002, as set forth in Section 5(a).
(e) Notice of redemption will be mailed by the Corporation, postage
prepaid, not less than 30 nor more than 60 days prior to the date fixed for
redemption (the "Series B Preferred Stock Redemption Date"), addressed to the
respective holders of record of the Series B Preferred to be redeemed at their
respective addresses as they appear on the stock transfer records of the
Corporation.
Each notice of redemption shall state: (i) the Series B Preferred Stock
Redemption Date; (ii) the number of shares of Series B Preferred to be redeemed;
(iii) with respect to the Cash Redemption Right, the redemption price; (iv) with
respect to the Stock Redemption Right, the number of shares of Common Stock to
be issued with respect to each share of Series B Preferred; (v) the place or
places where certificates representing such shares of Series B Preferred are to
be surrendered for payment of the redemption price in cash, with respect to the
Cash Redemption Right, and in certificates representing shares of Common Stock,
with respect to the Stock Redemption Right; (vi) that distributions on the
shares to be redeemed will cease to accumulate on such Series B Preferred Stock
Redemption Date; and (vii) the date upon which the holder's conversion rights as
to such shares shall terminate. If fewer than all the shares of Series B
Preferred are to be redeemed, the notice mailed to each such holder thereof
shall also specify the number of shares of Series B Preferred to be redeemed
from each such holder.
(f) At its election, the Corporation, prior to the Series B Preferred Stock
Redemption Date, may irrevocably deposit the redemption price (including
accumulated and unpaid distributions) (in cash or shares of Common Stock, as
applicable) of the Series B Preferred so called for redemption in trust for the
holders thereof with a bank or trust company organized and doing business under
the laws of the United States of America or any State thereof and having a
combined capital and surplus of not less than $50,000,000, in which case the
notice of redemption to holders of the Series B Preferred to be redeemed will
(i) state the date of such deposit, (ii) specify the office of such bank or
trust company as the place of payment of the redemption price and (iii) state
that such holders will be paid only against presentation and surrender of the
certificates representing such Series B Preferred at such place on or about the
date fixed in such redemption notice (which may not be later than the Series B
Preferred Stock Redemption Date). Any monies or shares of Common Stock so
deposited which remain unclaimed by the holders of the Series B Preferred at the
end of two years after the Series B Preferred Stock Redemption Date will be
returned by such bank or trust company to the Corporation, without prejudice to
the claims of such holders of the Series B Preferred in respect of the
Corporation.
(g) No failure to give notice of redemption or any defect thereto or in the
mailing thereof shall affect the validity of the proceedings for the redemption
of any shares of Series B Preferred except as to the holder to whom notice was
defective or not given.
(h) On or after the Series B Preferred Stock Redemption Date, the
redemption price of the related Series B Preferred (in cash or shares of Common
Stock, as applicable) will be paid to or on the order of the person whose name
appears on the certificates representing the Series B Preferred as the owner
thereof against presentation and surrender of such certificates to the
Corporation at the place designated in the notice of redemption and thereupon
each surrendered certificate will be canceled. In the event that fewer than all
the shares of Series B Preferred are to be redeemed, a new certificate will be
issued representing the unredeemed shares.
(i) At the close of business on a Series B Preferred Stock Redemption Date
relating to the exercise of the Corporation's Stock Redemption Right, each
holder of Series B Preferred to be redeemed (unless the Corporation defaults in
the delivery of the shares of Common Stock payable on such Series B Preferred
Stock Redemption Date) will be deemed to be the record holder of the number of
shares of Common Stock into which such Series B Preferred is to be redeemed,
regardless of whether such holder has surrendered the certificates representing
the Series B Preferred shares.
(j) From and after the Series B Preferred Stock Redemption Date (unless the
Corporation defaults in payment of the redemption price), all distributions on
the Series B Preferred called for redemption will cease to accumulate and all
rights of the holders thereof, except the right to receive the redemption price
thereof (including all accumulated and unpaid distributions to the Series B
Preferred Stock Redemption Date), will cease and terminate and such shares will
not thereafter be transferred (except with the consent of the Corporation) on
the Corporation's records, and such shares shall not be deemed to be outstanding
for any purpose whatsoever.
(k) Unless full distributions on all shares of Series B Preferred shall
have been or contemporaneously are authorized and paid or authorized and a sum
sufficient for the payment thereof is set apart in trust for payment for all
past distribution periods and the then current distribution period, no shares of
Series B Preferred shall be redeemed unless all outstanding shares of Series B
Preferred are simultaneously redeemed; provided, however, that the foregoing
shall not prevent the purchase or acquisition of shares of Series B Preferred to
preserve the REIT status of the Corporation or pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
Series B Preferred.
(l) Unless full distributions on all shares of Series B Preferred have been
or contemporaneously are authorized and paid or authorized and a sum sufficient
for the payment thereof is set apart in trust for payment for all past
distribution periods and the then current distribution period, the Corporation
shall not purchase or otherwise acquire or cause any Affiliate (as defined in
Section 9) to purchase or otherwise acquire, directly or indirectly, any shares
of Series B Preferred (except by conversion into or exchange for equity
securities of the Corporation ranking junior to the Series B Preferred as to
distributions and upon liquidation); provided, however, that the foregoing shall
not prevent the purchase or acquisition of Series B Preferred to preserve the
REIT status of the Corporation or pursuant to a purchase or exchange offer made
on the same terms to holders of all outstanding shares of Series B Preferred.
(m) Immediately prior to any redemption of Series B Preferred, the
Corporation shall pay, in cash, any accumulated and unpaid distributions to the
Series B Preferred Stock Redemption Date against presentation and surrender of
the certificates representing such Series B Preferred, unless such Series B
Preferred Stock Redemption Date falls after a Distribution Payment Record Date
and on or prior to the corresponding Distribution Payment Date, in which case
each holder of Series B Preferred at the close of business on such Distribution
Payment Record Date shall be entitled to the distribution payable on such shares
on the corresponding Distribution Payment Date notwithstanding the redemption of
such shares on or prior to such Distribution Payment Date. Except as provided
above, the Corporation will make no payment or allowance for unpaid
distributions, whether or not in arrears, on Series B Preferred for which a
notice of redemption has been given.
(n) Any shares of Series B Preferred that have been redeemed shall, after
such redemption, have the status of authorized but unissued Preferred Stock,
without designation as to series, until such shares are once more designated as
part of a particular series by the Board of Directors of the Corporation.
(o) No fractional shares of Common Stock will be issued upon redemption of
Series B Preferred pursuant to the Corporation's Stock Redemption Right. Instead
of any fractional interest in a share of Common Stock that would otherwise be
deliverable upon the redemption of Series B Preferred, the Corporation will pay
to the holder of such Series B Preferred an amount in cash in respect of such
fractional interest (computed to the nearest cent) based upon the Current Market
Price of shares of Common Stock on the Trading Day immediately preceding the
Series B Preferred Stock Redemption Date. If more than one share of Series B
Preferred shall be surrendered for redemption at one time by the same holder,
the number of full shares of Common Stock issuable upon redemption thereof shall
be computed on the basis of the aggregate number of shares of Series B Preferred
so surrendered.
(p) The Corporation covenants that any shares of Common Stock issued upon
redemption of Series B Preferred will be validly issued, fully paid and
non-assessable.
(q) The Series B Preferred will not have a stated maturity date and will
not be subject to any sinking fund or mandatory redemption provisions.
(6) Voting Rights.
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(a) Holders of the Series B Preferred will not have any voting rights,
except as set forth below. In any matter in which the Series B Preferred is
entitled to vote, including any action by written consent, each share of Series
B Preferred shall be entitled to one vote.
(b) So long as any shares of Series B Preferred remain outstanding, the
Corporation shall not, without the affirmative vote or consent of the holders of
record of at least two-thirds of the outstanding shares of the Series B
Preferred given in person or by proxy, either in writing or at a meeting (such
series voting separately as a class), (i) authorize or create, or increase the
authorized or issued amount of, any equity securities ranking senior to the
Series B Preferred with respect to payment of distributions or the distribution
of assets upon a liquidation of the Corporation or reclassify any authorized
stock of the Corporation into any such equity securities, or create, authorize
or issue any obligation or security convertible into or evidencing the right to
purchase any such stock or (ii) amend, alter or repeal the provisions of the
Articles, whether by merger, consolidation or otherwise (an "Event"), so as to
materially and adversely affect any right, preference, privilege or voting power
of the Series B Preferred or the holders thereof; provided, however, that the
holders of the Series B Preferred shall not be entitled to any voting rights in
connection with an Event if as a result of such Event (a) shares of Series B
Preferred remain outstanding with the terms thereof materially unchanged or (b)
the Corporation is not the surviving entity but the surviving entity issues to
the holders of the Series B Preferred the same number of shares of a separate
class of preferred stock with rights, preferences, privileges and voting powers
that are materially unchanged from the preferences, rights, privileges and other
terms of the Series B Preferred; and provided, further, that (x) any increase in
the amount of the authorized Series B Preferred or the creation or issuance of
any other series of Preferred Stock or (y) any increase in the amount of
authorized shares of such series, in each case ranking on a parity with or
junior to the Series B Preferred with respect to payment of distributions or the
distribution of assets upon a liquidation of the Corporation, shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers.
(c) The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of Series B Preferred shall have been
converted, redeemed or called for redemption upon proper notice and sufficient
funds or shares of Common Stock, as applicable, shall have been deposited in
trust to effect such redemption.
(d) Whenever distributions on any shares of Series B Preferred shall be in
arrears for six or more quarterly periods (a "Preferred Distribution Default"),
the holders of such shares of Series B Preferred (voting separately as a class
with all other series of Preferred Stock upon which like voting rights have been
conferred and are exercisable) will be entitled to vote for the election of two
additional directors of the Corporation (the "Preferred Stock Directors") at a
special meeting called by the holders of record of at least 10% of the
outstanding shares of Series B Preferred or the holders of any other series of
Preferred Stock so in arrears (unless such request is received less than 90 days
before the date fixed for the next annual or special meeting of stockholders) or
at the next annual meeting of stockholders, and at each subsequent annual
meeting until all distributions accumulated on such shares of Series B Preferred
for the past distribution periods and the then current distribution period shall
have been fully paid or declared and a sum sufficient for the payment thereof is
set aside in trust for payment. In such cases, the entire Board of Directors of
the Corporation will be increased by two directors.
(e) If and when all accumulated distributions and the distribution for the
current distribution period on the Series B Preferred shall have been paid in
full or set aside in trust for payment in full, the holders of shares of Series
B Preferred shall be divested of the voting rights set forth in Section 6(d)
(subject to revesting in the event of each and every Preferred Distribution
Default) and, if all accumulated distributions and the distribution for the
current distribution period have been paid in full or set aside in trust for
payment in full on all other series of Preferred Stock upon which like voting
rights have been conferred and are exercisable, the term of office of each
Preferred Stock Director so elected shall terminate immediately. So long as a
Preferred Distribution Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the Preferred Stock
Director remaining in office or, if none remains in office, by a vote of the
holders of record of a majority of the outstanding shares of Series B Preferred
when they have the voting rights set forth in Section 6(d) (voting separately as
a class with all other series of Preferred Stock upon which like voting rights
have been conferred and are exercisable). The Preferred Stock Directors shall
each be entitled to one vote per director on any matter presented to the Board
of Directors.
(7) Conversion.
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(a) Subject to Section 8, shares of Series B Preferred will be convertible
at any time, at the option of the holders thereof, into Class A common stock of
the Corporation (the "Common Stock") at a conversion price of $26.05 per share
of Common Stock (equivalent to a conversion rate of .9597 shares of Common Stock
for each share of Series B Preferred), subject to adjustment as described below
(the "Conversion Price"); provided, however, that the right to convert shares of
Series B Preferred called for redemption will terminate at the close of business
on the fifth Business Day prior to any Series B Preferred Stock Redemption Date
for such shares.
(b) To exercise the conversion right, the holder of each Series B Preferred
to be converted shall surrender the certificate representing such Series B
Preferred, duly endorsed or assigned to the Corporation or in blank, at the
principal office of the Transfer Agent accompanied by written notice to the
Corporation that such holder elects to convert such Series B Preferred. Unless
the shares of Common Stock issuable on conversion are to be issued in the same
name as the name in which such Series B Preferred is registered, in which case
the Corporation shall bear the related taxes, each share surrendered for
conversion shall be accompanied by instruments of transfer, in form satisfactory
to the Corporation, duly executed by the holder or such holder's duly authorized
attorney and an amount sufficient to pay any transfer or similar tax (or
evidence reasonably satisfactory to the Corporation demonstrating that such
taxes have been paid or that such taxes are not due).
(c) Each conversion shall be deemed to have been effected immediately prior
to the close of business on the date on which the certificates representing
shares of Series B Preferred shall have been surrendered and such notice (and if
applicable, payment of an amount equal to the distribution payable on such
shares) received by the Corporation as aforesaid, and the person or persons in
whose name or names any certificate or certificates representing shares of
Common Stock shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of the shares represented thereby at such
time on such date, and such conversion shall be at the Conversion Price in
effect at such time and on such date unless the stock transfer records of the
Corporation shall be closed on that date, in which event such person or persons
shall be deemed to have become such holder or holders of record at the close of
business on the next succeeding day on which such stock transfer records are
open, but such conversion shall be at the Conversion Price in effect on the date
on which such shares have been surrendered and such notice received by the
Corporation.
(d) Holders of shares of Series B Preferred at the close of business on a
Distribution Payment Record Date shall be entitled to receive the distribution
payable on such shares on the corresponding Distribution Payment Date
notwithstanding the conversion of such shares following such Distribution
Payment Record Date and prior to such Distribution Payment Date. A holder of
Series B Preferred on a Distribution Payment Record Date who (or whose
transferee) tenders any such shares for conversion into Common Stock on such
Distribution Payment Date shall receive the distribution payable by the
Corporation on such Series B Preferred on such date, and the converting holder
need not include payment of the amount of such distribution upon surrender of
certificates representing such Series B Preferred for conversion. Except as
provided above, the Corporation shall make no payment or allowance for unpaid
distributions, whether or not in arrears, on converted shares or for
distribution on the Common Stock that is issued upon such conversion.
As promptly as practicable after the surrender of certificates for Series B
Preferred as aforesaid, the Corporation shall issue and shall deliver at such
office to such holder, or on his written order, a certificate or certificates
for the number of full shares of Common Stock issuable upon the conversion of
such shares in accordance with the provisions of this Section 7, and any
fractional interest in respect of a share of Common Stock arising upon such
conversion shall be settled as provided in Section 7(e).
(e) No fractional shares of Common Stock shall be issued upon conversion of
Series B Preferred. Instead of any fractional share of Common Stock that would
otherwise be deliverable upon the conversion of a share of Series B Preferred,
the Corporation shall pay to the holder of such share an amount in cash in
respect of such fractional interest based upon the Current Market Price of a
share of Common Stock on the Trading Day immediately preceding the date of
conversion. If more than one share of Series B Preferred shall be surrendered
for conversion at one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares of Series B Preferred so surrendered.
(f) The Conversion Price shall be adjusted from time to time as follows:
(i) If the Corporation shall after the date on which shares of Series
B Preferred are first issued (the "Issue Date") (A) pay or make a distribution
in Common Stock to holders of its equity securities, (B) subdivide its
outstanding Common Stock into a greater number of shares, (C) combine its
outstanding Common Stock into a smaller number of shares or (D) issue any equity
securities by reclassification of its Common Stock, then the Conversion Price in
effect at the opening of business on the day following the record date for the
determination of stockholders entitled to receive such distribution or at the
opening of business on the day following the day on which such subdivision,
combination or reclassification becomes effective, as the case may be, shall be
adjusted so that the holder of any share of Series B Preferred thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Common Stock that such holder would have owned or have been entitled to receive
after the happening of any of the events described above had such shares been
converted immediately prior to the record date in the case of a distribution or
the effective date in the case of a subdivision, combination or
reclassification. An adjustment made pursuant to this subsection (i) shall
become effective immediately after the opening of business on the day following
such record date (except as provided in Section 7(j)) in the case of a
distribution and shall become effective immediately after the opening of
business on the day next following the effective date in the case of a
subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date rights,
options or warrants to all holders of Common Stock entitling them to subscribe
for or purchase shares of Common Stock (or securities convertible into or
exchangeable for Common Stock) at a price per share less than the Fair Market
Value per share of Common Stock on the record date for the determination of
stockholders entitled to receive such rights, options or warrants, then the
Conversion Price in effect at the opening of business on the day following such
record date shall be adjusted to equal the price determined by multiplying (I)
the Conversion Price in effect immediately prior to the opening of business on
the day following the record date for such determination by (II) a fraction, the
numerator of which shall be the sum of (A) the number of shares of Common Stock
outstanding on the close of business on the record date for such determination
and (B) the number of shares that the aggregate proceeds to the Corporation from
the exercise of such rights, options or warrants for Common Stock would purchase
at such Fair Market Value, and the denominator of which shall be the sum of (A)
the number of shares of Common Stock outstanding on the close of business on the
record date for such determination and (B) the number of additional shares of
Common Stock offered for subscription or purchase pursuant to such rights,
options or warrants. Such adjustment shall become effective immediately after
the opening of business on the day following such record date (except as
provided in Section 7(j)). In determining whether any rights, options or
warrants entitle the holders of Common Stock to subscribe for or purchase Common
Stock at less than the Fair Market Value, there shall be taken into account any
consideration received by the Corporation upon issuance and upon exercise of
such rights, options or warrants, the value of such consideration, if other than
cash, to be determined in good faith by the Corporation's Chief Executive
Officer or the Board of Directors of the Corporation.
(iii) If the Corporation shall distribute to all holders of its Common
Stock any equity securities of the Corporation (other than Common Stock) or
evidences of its indebtedness or assets (excluding Permitted Common Stock Cash
Distributions and those rights, options and warrants referred to in and treated
under subsection (ii) above), then the Conversion Price shall be adjusted so
that it shall equal the price determined by multiplying (I) the Conversion Price
in effect immediately prior to the close of business on the record date for the
determination of stockholders entitled to receive such distribution by (II) a
fraction, the numerator of which shall be the Fair Market Value per share of
Common Stock on the record date for such determination less the then fair market
value (as determined by the Corporation's Chief Executive Officer or the Board
of Directors of the Corporation, whose determination shall be conclusive) of the
portion of the equity securities, evidences of indebtedness or assets so
distributed applicable to one share of Common Stock, and the denominator of
which shall be the Fair Market Value per share of Common Stock on the record
date for such determination. Such adjustment shall become effective immediately
at the opening of business on the day following such record date (except as
provided in Section7(j)). For the purposes of this subsection (iii), the
distribution of equity securities, evidences of indebtedness or assets which are
distributed not only to the holders of Common Stock on the record date for the
determination of stockholders entitled to such distribution, but also are
distributed with each share of Common Stock delivered to a person converting a
share of Series B Preferred after such record date, shall not require an
adjustment of the Conversion Price pursuant to this subsection (iii), provided
that on the date, if any, on which a person converting a share of Series B
Preferred would no longer be entitled to receive such equity securities,
evidences of indebtedness or assets with a share of Common Stock (other than as
a result of the termination of all such equity securities, evidences of
indebtedness or assets), a distribution of such equity securities, evidences of
indebtedness or assets shall be deemed to have occurred and the Conversion Price
shall be adjusted as provided in this subsection (iii) (and such day shall be
deemed to be "the record date for the determination of the stockholders entitled
to receive such distribution" within the meaning of the two preceding
sentences).
(iv) No adjustment in the Conversion Price shall be required unless
such adjustment would require a cumulative increase or decrease of at least 1%
in the Conversion Price; provided, however, that any adjustments that by reason
of this subsection (iv) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment until made; and provided,
further, that any adjustment shall be required and made in accordance with the
provisions of this Section 7 (other than this subsection (iv)) not later than
such time as may be required in order to preserve the tax-free nature of a
distribution to the holders of Common Stock. Notwithstanding any other
provisions of this Section 7, the Corporation shall not be required to make any
adjustment of the Conversion Price for the issuance of any Common Stock pursuant
to any plan providing for the reinvestment of distributions or interest payable
on securities of the Corporation and the investment of additional optional
amounts in Common Stock under such plan. All calculations under this Section 7
shall be made to the nearest cent (with $.005 being rounded upward) or to the
nearest one-tenth of a share (with .05 of a share being rounded upward), as the
case may be. Anything in this subsection (f) to the contrary notwithstanding,
the Corporation shall be entitled, to the extent permitted by law, to make such
reductions in the Conversion Price, in addition to those required by this
subsection (f), as it in its discretion shall determine to be advisable in order
that any share distributions, subdivision, reclassification or combination of
shares, distribution of rights, options or warrants to purchase shares or
securities, or a distribution of other assets (other than cash distributions)
hereafter made by the Corporation to its stockholders shall not be taxable.
(g) Except as otherwise provided for in Section 7(f), if the Corporation
shall be a party to any transaction (including, without limitation, a merger,
consolidation, statutory share exchange, tender offer for all or substantially
all of the Common Stock or sale of all or substantially all of the Corporation's
assets), in each case as a result of which Common Stock shall be converted into
the right to receive shares, stock, securities or other property (including cash
or any combination thereof (each of the foregoing being referred to herein as a
"Transaction")), each share of Series B Preferred, if convertible after the
consummation of the Transaction, which is not converted into the right to
receive shares, stock, securities or other property in connection with such
Transaction shall thereafter be convertible into the kind and amount of shares,
stock, securities and other property (including cash or any combination thereof)
receivable upon the consummation of such Transaction by a holder of that number
of shares of Common Stock into which one share of Series B Preferred was
convertible immediately prior to such Transaction, assuming such holder of
Common Stock (i) is not a Person with which the Corporation consolidated or into
which the Corporation merged or which merged into the Corporation or to which
such sale or transfer was made, as the case may be (a "Constituent Person"), or
an affiliate of a Constituent Person and (ii) failed to exercise his rights of
the election, if any, as to the kind or amount of shares, stock, securities and
other property (including cash or any combination thereof) receivable upon such
Transaction (each, a "Non-Electing Share") (provided that if the kind and amount
of shares, stock, securities and other property (including cash or any
combination thereof) receivable upon consummation of such Transaction is not the
same for each Non-Electing Share, the kind and amount receivable by each
Non-Electing Share shall be deemed to be the kind and amount receivable per
share by a plurality of the Non-Electing Shares). The Corporation shall not be a
party to any Transaction unless the terms of such Transaction are consistent
with the provisions of this subsection (g), and it shall not consent or agree to
the occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
benefit of the holders of the Series B Preferred that will contain provisions
enabling holders of Series B Preferred that remains outstanding after such
Transaction to convert into the consideration received by holders of Common
Stock at the Conversion Price in effect immediately prior to such Transaction.
The provisions of this subsection (g) shall similarly apply to successive
Transactions.
(h) If:
(i) the Corporation shall declare a distribution on the Common Stock
(other than Permitted Common Stock Cash Distributions) or there shall be a
reclassification, subdivision or combination of the Common Stock; or
(ii) the Corporation shall grant to the holders of the Common Stock
rights, options or warrants to subscribe for or purchase Common Stock at less
than Fair Market Value; or
(iii) the Corporation shall enter into a Transaction; or
(iv) there shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation,
then the Corporation shall cause to be filed with the Transfer Agent and shall
cause to be mailed to the holders of the Series B Preferred at their addresses
as shown on the stock transfer records of the Corporation, as promptly as
possible, but at least 15 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken for
the purpose of such distribution or rights, options or warrants, or, if a record
is not to be taken, the date as of which the holders of Common Stock of record
to be entitled to such distribution or rights, options or warrants are to be
determined or (B) the date on which such reclassification, subdivision,
combination, Transaction or liquidation, dissolution or winding up is expected
to become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property, if any, deliverable upon such reclassification,
subdivision, combination, Transaction or liquidation, dissolution or winding up.
Failure to give or receive such notice or any defect therein shall not affect
the legality or validity of the proceedings described in this Section 7.
(i) Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall promptly file with the Transfer Agent an officer's certificate
setting forth the Conversion Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment, which certificate shall
be conclusive evidence of the correctness of such adjustment absent manifest
error. Promptly after delivery of such certificate, the Corporation shall
prepare a notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the effective date such adjustment becomes
effective and shall mail such notice of such adjustment of the Conversion Price
to the holder of each share of Series B Preferred at such holder's last address
as shown on the stock transfer records of the Corporation.
(j) In any case in which Section 7(f) provides that an adjustment shall
become effective on the day following the record date for an event, the
Corporation may defer until the occurrence of such event (A) issuing to the
holder of any share of Series B Preferred converted after such record date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment required by such event
over and above the shares of Common Stock issuable upon such conversion before
giving effect to such adjustment and (B) fractionalizing any share of Series B
Preferred and/or paying to such holder any amount of cash in lieu of any
fraction pursuant to Section 7(e).
(k) There shall be no adjustment of the Conversion Price in case of the
issuance of any equity securities of the Corporation in a reorganization,
acquisition or other similar transaction except as specifically set forth in
this Section 7. If any action or transaction would require adjustment of the
Conversion Price pursuant to more than one subsection of Section 7(f), only one
adjustment shall be made, and such adjustment shall be the amount of adjustment
that has the highest absolute value.
(l) If the Corporation shall take any action affecting the Common Stock,
other than action described in this Section 7, that in the judgment of the Board
of Directors of the Corporation would materially adversely affect the conversion
rights of the holders of the Series B Preferred, the Conversion Price for the
Series B Preferred may be adjusted, to the extent permitted by law, in such
manner, if any, and at such time, as the Board of Directors of the Corporation,
in its sole discretion, may determine to be equitable under the circumstances.
(m) The Corporation shall at all times reserve and keep available, free
from preemptive rights, out of the aggregate of its authorized but unissued
Common Stock, for the purpose of effecting conversion of the Series B Preferred,
the full number of shares of Common Stock deliverable upon the conversion of all
outstanding shares of Series B Preferred not theretofore converted. For purposes
of this subsection (m), the number of shares of Common Stock that shall be
deliverable upon the conversion of all outstanding shares of Series B Preferred
shall be computed as if at the time of computation all such outstanding shares
were held by a single holder.
(n) The Corporation will pay any and all documentary stamp or similar issue
or transfer taxes payable in respect of the issue or delivery of Common Stock or
other securities or property on conversion of the Series B Preferred pursuant
hereto; provided, however, that the Corporation shall not be required to pay any
tax that may be payable in respect of any transfer involved in the issue or
delivery of Common Stock or other securities or property in a name other than
that of the record holder of the Series B Preferred to be converted, and no such
issue or delivery shall be made unless and until the person requesting such
issue or delivery has paid to the Corporation the amount of any such tax or
established, to the reasonable satisfaction of the Corporation, that such tax
has been paid.
(8) Ownership Limitations. Notwithstanding Article VII of the Articles, the
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provisions of this Section 8 shall apply with respect to the limitations on the
ownership and acquisition of shares of Series B Preferred.
(a) Restriction on Ownership and Transfer.
(i) Except as provided in Section 8(h), no Person shall Beneficially
Own or Constructively Own any shares of Series B Preferred such that such Person
would Beneficially Own or Constructively Own Capital Stock in excess of the
Aggregate Stock Ownership Limit, and the intended transferee shall acquire no
rights in such Series B Preferred; and
(ii) Notwithstanding any other provisions contained in this Section 8,
any Transfer (whether or not such Transfer is the result of a transaction
entered into through the facilities of the NYSE) or other event that, if
effective, would result in the Corporation being "closely held" within the
meaning of Section 856(h) of the Code, or would otherwise result in the
Corporation failing to qualify as a REIT (including, but not limited to, a
Transfer or other event that would result in the Corporation owning (directly or
Constructively) an interest in a tenant that is described in Section
856(d)(2)(B) of the Code if the income derived by the Corporation from such
tenant would cause the Corporation to fail to satisfy any of the gross income
requirements of Section 856(c) of the Code) shall be void ab initio as to the
Transfer of the Series B Preferred or other event which would cause the
Corporation to be "closely held" within the meaning of Section 856(h) of the
Code or would otherwise result in the Corporation failing to qualify as a REIT;
and the intended transferee or owner or Constructive or Beneficial Owner shall
acquire or retain no rights in such Series B Preferred.
(b) Conversion Into and Exchange For Series B Excess Preferred. If,
notwithstanding the other provisions contained in this Section 8, at any time
after the Issue Date, there is a purported Transfer or Acquisition (whether or
not such Transfer or Acquisition is the result of a transaction entered into
through the facilities of the NYSE), change in the capital structure of the
Corporation or other event such that one or more of the restrictions on
ownership and transfers described in Section 8(a), above, has been violated,
then the Series B Preferred being Transferred or Acquired (or in the case of an
event other than a Transfer or Acquisition, the Series B Preferred owned or
Constructively Owned or Beneficially Owned or, if the next sentence applies, the
Series B Preferred identified in the next sentence) which would cause one or
more of the restrictions on ownership or transfer to be violated (rounded up to
the nearest whole share) shall be automatically converted into an equal number
of shares of Series B Excess Preferred. If at any time of such purported
Transfer or Acquisition any of the shares of the Series B Preferred are then
owned by a depositary to permit the trading of beneficial interests in
fractional shares of Series B Preferred, then shares of Series B Preferred that
shall be converted to Series B Excess Preferred shall be first taken from any
Series B Preferred that is not in such depositary that is Beneficially Owned or
Constructively Owned by the Person whose Beneficial Ownership or Constructive
Ownership would otherwise violate the restrictions of Section 8(a) prior to
converting any shares in such depositary. Any conversion pursuant to this
subparagraph shall be effective as of the close of business on the Business Day
prior to the date of such Transfer or other event.
(c) Remedies For Breach. If the Board of Directors or its designees shall
at any time determine in good faith that a Transfer or other event has taken
place in violation of Section 8(a) or that a Person intends to Transfer or
Acquire, has attempted to Transfer or Acquire or may Transfer or Acquire direct
ownership, beneficial ownership (determined without reference to any rules of
attribution), Beneficial Ownership or Constructive Ownership of any shares of
the Corporation in violation of Section 8(a), the Board of Directors or its
designees shall take such action as it deems advisable to refuse to give effect
to or to prevent such Transfer, Acquisition or other event, including, but not
limited to, causing the Corporation to purchase such shares upon the terms and
conditions specified by the Board of Directors in its sole discretion, refusing
to give effect to such Transfer, Acquisition or other event on the books of the
Corporation or instituting proceedings to enjoin such Transfer, Acquisition or
other event; provided, however, that any Transfer or Acquisition (or, in the
case of events other than a Transfer or Acquisition, ownership or Constructive
Ownership or Beneficial Ownership) in violation of Section 8(a) shall
automatically result in the conversion described in Section 8(b), irrespective
of any action (or non-action) by the Board of Directors.
(d) Notice of Restricted Transfer. Any Person who Acquires or attempts to
Acquire or Beneficially Owns or Constructively Owns shares of Series B Preferred
in excess of the aforementioned limitations, or any Person who is or attempts to
become a transferee such that Series B Excess Preferred results under the
provisions of these Articles, shall immediately give written notice or, in the
event of a proposed or attempted Transfer, give at least 15 days prior written
notice to the Corporation of such event and shall provide to the Corporation
such other information as it may request in order to determine the effect of any
such Transfer on the corporation's status as a REIT.
(e) Owners Required To Provide Information. From and after the Issue Date,
each Person who is a beneficial owner or Beneficial Owner or Constructive Owner
of Series B Preferred and each Person (including the stockholder of record) who
is holding Series B Preferred for a Beneficial Owner or Constructive Owner shall
provide to the Corporation such information that the Corporation may request, in
good faith, in order to determine the Corporation's status as a REIT.
(f) Remedies Not Limited. Nothing contained in this Section 8 (but subject
to Section 8(l)) shall limit the authority of the Board of Directors to take
such other action as it deems necessary or advisable to protect the Corporation
and the interests of its stockholders by preservation of the Corporation's
status as a REIT.
(g) Ambiguity. In the case of an ambiguity in the application of any of the
provisions of this Section 8, including any definition contained in Section 9,
the Board of Directors shall have the power to determine the application of the
provisions of this Section 8 with respect to any situation based on the facts
known to it (subject, however, to the provisions of Section 8(l)).
(h) Exceptions.
(i) Subject to Section 8(a)(ii), the Board of Directors, in its sole
and absolute discretion, with the advice of the Corporation's tax counsel, may
exempt a Person from the limitation on a Person Beneficially Owning Series B
Preferred in excess of the Aggregate Stock Ownership Limit if such Person is not
an individual for purposes of Section 542(a)(2) of the Code and the Board of
Directors obtains such representations and undertakings from such Person as are
reasonably necessary to ascertain that no individual's Beneficially Owning
Series B Preferred would violate the Aggregate Stock Ownership Limit and such
Person agrees that any violation of such representations or undertaking (or
other action which is contrary to the restrictions contained in this Section 8)
or attempted violation will result in such Series B Preferred being exchanged
for Series B Excess Preferred in accordance with Section 8(b).
(ii) Subject to Section 8(a)(ii), the Board of Directors, in its sole
and absolute discretion, with advice of the Corporation's tax counsel, may
exempt a Person from the limitation on a Person Beneficially Owning or Acquiring
Series B Preferred in excess of the Aggregate Stock Ownership Limit if such
Person does not and represents that it will not own, directly or constructively
(by virtue of the application of Section 318 of the Code, as modified by Section
856(d)(5) of the Code), own more than a 9% interest (as set forth in Section
856(d)(2)(B) of the Code) in a tenant of the Corporation and the Board of
Directors obtains such representations and undertakings from such Person as are
reasonably necessary to ascertain this fact and such Person agrees that any
violation or attempted violation will result in such Series B Preferred in
excess of the Aggregate Stock Ownership Limit being exchanged for Series B
Excess Preferred in accordance with Section 8(b).
(iii) Prior to granting any exception pursuant to Section 8(h)(ii),
the Board of Directors may require a ruling from the IRS, or an opinion of
counsel, in either case in form and substance satisfactory to the Board of
Directors, in its sole discretion as it may deem necessary or advisable in order
to determine or ensure the Corporation's status as a REIT; provided, however,
that obtaining a favorable ruling or opinion shall not be required for the Board
of Directors to grant an exception hereunder.
(i) Legend. Each certificate for Series B Preferred shall bear
substantially the following legend:
"The Corporation will furnish to any stockholder, on request and without
charge, a full statement of the information required by Section 2-211(b) of the
Corporations and Associations Article of the Annotated Code of Maryland with
respect to the designations and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends and other
distributions, qualifications, and terms and conditions of redemptions of the
stock of each class which the Corporation has authority to issue and, if the
Corporation is authorized to issue any preferred or special class in series, (i)
the differences in the relative rights and preferences between the shares of
each series to the extent set, and (ii) the authority of the Board of Directors
to set such rights and preferences of subsequent series. The foregoing summary
does not purport to be complete and is subject to and qualified in its entirety
by reference to the charter of the Corporation including all amendments and
supplements thereto (the "Charter"), a copy of which will be sent without charge
to each stockholder who so requests. Such request must be made to the Secretary
of the Corporation at its principal office or to the Transfer Agent.
The securities represented by this certificate are subject to restrictions
on ownership and transfer for the purpose of the Corporation's maintenance of
its status as a real estate investment trust under the Internal Revenue Code of
1986, as amended. Except as otherwise provided pursuant to the Charter of the
Corporation, no Person may Acquire any shares of Series B Preferred if, as a
result of such Acquisition, such Person shall Beneficially Own or Constructively
Own any shares of Series B Preferred such that such Person would Beneficially
Own or Constructively Own Capital Stock in excess of 9% in value of the
aggregate of the outstanding shares of Capital Stock of the Corporation. Any
Person who Acquires or attempts to Acquire or Beneficially Owns or
Constructively Owns shares of Series B Preferred in excess of the aforementioned
limitation, or any Person who is or attempts to become a transferee such that
Series B Excess Preferred would result under the provisions of the Charter,
shall immediately give written notice or, in the event of a proposed or
attempted Transfer, give at least 15 days prior written notice to the
Corporation of such event and shall provide to the Corporation such other
information as it may request in order to determine the effect of any such
Transfer on the corporation's status as a REIT. All capitalized terms in this
legend have the meanings defined in the Charter of the Corporation, a copy of
which, including the restrictions on transfer, will be sent to any stockholder
on request and without charge. Transfers in violation of the restrictions
described above shall be void ab initio. If the restrictions on ownership and
transfer are violated, the securities represented hereby will be designated and
treated as shares of Series B Excess Preferred which will be held in trust by
the Corporation. The foregoing summary does not purport to be complete and is
subject to and qualified in its entirety by reference to the Charter, a copy of
which, including the restrictions on transfer, will be sent without charge to
each stockholder who so requests. Such request must be made to the Secretary of
the Corporation at its principal office or to the Transfer Agent."
(j) Severability. If any provision of this Section 8 or any application of
any such provision is determined to be invalid by any federal or state court
having jurisdiction, the validity of the remaining provisions shall not be
affected and other applications of such provision shall be affected only to the
extent necessary to comply with the determination of such court.
(k) Series B Excess Preferred.
(i) Ownership In Trust. Upon any purported Transfer (whether or not
------------------
such Transfer is the result of a transaction entered into through the facilities
of the NYSE) that results in the issuance of Series B Excess Preferred pursuant
to Section 8(b), such Series B Excess Preferred shall be deemed to have been
transferred to the Corporation, as Trustee of a Trust for the exclusive benefit
of such Beneficiary or Beneficiaries to whom an interest in such Series B Excess
Preferred may later be transferred pursuant to Section 8(k)(v). Series B Excess
Preferred so held in trust shall be issued and outstanding shares of stock of
the Corporation. The Purported Record Transferee shall have no rights in such
Series B Excess Preferred except the right to designate a transferee of such
Series B Excess Preferred upon the terms specified in Section 8(k)(v). The
Purported Beneficial Transferee shall have no rights in such Series B Excess
Preferred except as provided in this Section 8.
(ii) Dividend Rights. Series B Excess Preferred will be entitled to
---------------
dividends and distributions authorized and declared with respect to the Series B
Preferred from which the Series B Excess Preferred was converted and will be
payable to the Trustee of the Trust in which such Series B Excess Preferred is
held, for the benefit of the Charitable Beneficiary. Dividends and distributions
will be authorized and declared with respect to each share of Series B Excess
Preferred in an amount equal to the dividends and distributions authorized and
declared on each share of Series B Preferred from which the Series B Excess
Preferred was converted. Any dividend or distribution paid prior to the
discovery by the Corporation that Series B Preferred has been transferred in
violation of the provisions of the Articles shall be repaid by the Purported
Record Transferee to the Trustee upon demand. The Corporation shall rescind any
dividend or distribution authorized and declared but unpaid as void ab initio
with respect to the Purported Record Transferee, and the Corporation shall pay
such dividend or distribution when due to the Trustee of the Trust for the
benefit of the Charitable Beneficiary.
(iii) Conversion Rights. Holders of shares of Series B Excess
-----------------
Preferred shall not be entitled to convert any shares of Series B Excess
Preferred into shares of Common Stock. Any conversion made prior to the
discovery by the Corporation that shares of Series B Preferred have been
converted into Series B Excess Preferred shall be void ab initio and the
Purported Record Transferee shall return the shares of Common Stock into which
the Series B Preferred were converted upon demand to the Corporation for
reconversion into Series B Preferred and deposit into the Trust.
(iv) Rights Upon Liquidation. In the event of any voluntary or
-----------------------
involuntary liquidation, dissolution or winding up of, or any other distribution
of all or substantially all of the assets of the Corporation, each holder of
shares of Series B Excess Preferred shall be entitled to receive, in the case of
Series B Excess Preferred converted from Series B Preferred, ratably with each
other holder of Series B Preferred and Series B Excess Preferred converted from
Series B Preferred, that portion of the assets of the Corporation available for
distribution to its stockholders as the number of shares of the Series B Excess
Preferred held by such holder bears to the total number of shares of Series B
Preferred and Series B Excess Preferred then outstanding (in the case of Series
B Excess Preferred converted from Series B Preferred).
Any liquidation distributions to be distributed with respect to Series B
Excess Preferred shall be distributed in the same manner as proceeds from the
sale of Series B Excess Preferred are distributed as set forth in Section
8(k)(v).
(v) Non-Transferability of Excess Stock. Series B Excess Preferred
-----------------------------------
shall not be transferable. In its sole discretion, the Trustee of the Trust may
transfer the interest in the Trust representing shares of Series B Excess
Preferred to any Person if the shares of Series B Excess Preferred would not be
Series B Excess Preferred in the hands of such Person. If such transfer is made,
the interest of the Charitable Beneficiary in the Series B Excess Preferred
shall terminate and the proceeds of the sale shall be payable by the Trustee to
the Purported Record Transferee and the Charitable Beneficiary as herein set
forth. The Purported Record Transferee shall receive from the Trustee the lesser
of (i) the price paid by the Purported Record Transferee for its shares of
Series B Preferred that were converted into Series B Excess Preferred or, if the
Purported Record Transferee did not give value for such shares (e.g., the stock
was received through a gift, devise or other transaction), the average closing
price for the class of shares from which such shares of Series B Excess
Preferred were converted for the ten trading days immediately preceding such
sale or gift, and (ii) the price received by the Trustee from the sale or other
disposition of the Series B Excess Preferred held in trust. The Trustee may
reduce the amount payable to the Purported Record Transferee by the amount of
dividends and distributions which have been paid to the Purported Record
Transferee and are owed by the Purported Record Transferee to the Trustee
pursuant to Section 8(k)(i). Any proceeds in excess of the amount payable to the
Purported Record Transferee shall be paid by the Trustee to the Charitable
Beneficiary. Upon such transfer of an interest in the Trust, the corresponding
shares of Series B Excess Preferred in the Trust shall be automatically
exchanged for an equal number of shares of Series B Excess Preferred and such
shares of Series B Excess Preferred shall be transferred of record to the
transferee of the interest in the Trust if such shares of Series B Excess
Preferred would not be Series B Excess Preferred in the hands of such
transferee. Prior to any transfer of any interest in the Trust, the Corporation
must have waived in writing its purchase rights under Section 8(k)(vii).
(vi) Voting Rights for Series B Excess Preferred. Any vote cast by a
-------------------------------------------
Purported Record Transferee of Series B Excess Preferred prior to the discovery
by the Corporation that Series B Preferred has been transferred in violation of
the provisions of these Articles shall be void ab initio. While the Series B
Excess Preferred is held in trust, the Purported Record Transferee will be
deemed to have given an irrevocable proxy to the Trustee to vote the shares of
Series B Preferred which have been converted into shares of Series B Excess
Preferred for the benefit of the Charitable Beneficiary.
(vii) Purchase Rights in Series B Excess Preferred. Notwithstanding
--------------------------------------------
the provisions of Section 8(k)(v), shares of Series B Excess Preferred shall be
deemed to have been offered for sale to the Corporation, or its designee, at a
price per share equal to the lesser of (i) the price per share in the
transaction that required the issuance of such Series B Excess Preferred (or, if
the Transfer or other event that resulted in the issuance of Series B Excess
Preferred was not a transaction in which the Purported Beneficial Transferee
gave full value for such Series B Excess Preferred, a price per share equal to
the Market Price on the date of the purported Transfer or other event that
resulted in the issuance of Series B Excess Preferred) and (ii) the Market Price
on the date the Corporation, or its designee, accepts such offer. The
Corporation shall have the right to accept such offer for a period of ninety
(90) days after the later of (i) the date of the Transfer or other event which
resulted in the issuance of such shares of Series B Excess Preferred and (ii)
the date the Board of Directors determines in good faith that a Transfer or
other event resulting in the issuance of shares of Series B Excess Preferred has
occurred, if the Corporation does not receive a notice of such Transfer or other
event pursuant to Section 8(d). The Corporation may appoint a special trustee of
the Trust for the purpose of consummating the purchase of Series B Excess
Preferred by the Corporation. In the event that the Corporation's actions cause
a reduction in the number of shares of Series B Preferred outstanding and such
reduction results in the issuance of Series B Excess Preferred, the Corporation
is required to exercise its option to repurchase such shares of Series B Excess
Preferred if the Beneficial Owner notifies the Corporation that it is unable to
sell its rights to such Series B Excess Preferred.
(l) Settlement. Nothing in this Section 8 shall preclude the settlement of
any transaction entered into through facilities of the NYSE.
(9) Definitions.
-----------
"Acquire". The term "Acquire" shall mean the acquisition of Beneficial
Ownership or Constructive Ownership of shares of Preferred Equity Stock by any
means including, without limitation, a Transfer, the exercise of or right to
exercise any rights under any option, warrant, convertible security, pledge or
other security interest or similar right to acquire shares, but shall not
include the acquisition of any such rights unless, as a result, the acquiror
would be considered a Beneficial Owner or Constructive Owner, as defined below
and shall not include Beneficial Ownership or Constructive Ownership that does
not result from an acquisition. The term "Acquisition" shall have the
correlative meaning.
"Affiliate". The term "Affiliate" has the same meaning as given to that
term in Rule 405 under the Securities Act of 1933, as amended, or any successor
rule thereunder.
"Aggregate Stock Ownership Limit". The term "Aggregate Stock Ownership
Limit" shall mean not more than 9% in value of the aggregate of the outstanding
shares of Capital Stock. The number and value of shares of the outstanding
shares of Capital Stock shall be determined by the Board of Directors of the
Corporation in good faith, which determination shall be conclusive for all
purposes thereof.
"Beneficial Ownership". The term "Beneficial Ownership" shall mean
ownership of Series B Preferred or Series B Excess Preferred by a Person who is
or would be treated as an owner of such Series B Preferred or Series B Excess
Preferred either directly or constructively through the application of Section
544 of the Code, as modified by Section 856(h)(1)(B) of the Code. The terms
"Beneficial Owner," "Beneficially Owns" and "Beneficially Owned" shall have the
correlative meanings.
"Business Day". The term "Business Day" shall mean any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions in The City of New York are authorized or required by law,
regulation or executive order to close.
"Capital Stock". The term "Capital Stock" shall mean all classes of series
of stock of the Corporation, including, without limitation, Common Equity and
Preferred Equity Stock.
"Charitable Beneficiary". The term "Charitable Beneficiary" shall mean a
beneficiary of the Trust as determined pursuant to Section 8(k).
"Common Equity". The term "Common Equity" shall mean all shares now or
hereafter authorized of any class of common stock of the Corporation, including
the Common Stock, and any other stock of the Corporation, howsoever designated,
authorized after the Issue Date, which has the right (subject always to prior
rights of any class or series of preferred stock) to participate in the
distribution of the assets and earnings of the Corporation without limit as to
per share amount.
"Constructive Ownership". The term "Constructive Ownership" shall mean
ownership of Series B Preferred or Series B Excess Preferred by a Person who is
or would be treated as an owner of such Series B Preferred or Series B Excess
Preferred either directly or constructively through the application of Section
318 of the Code, as modified by Section 856(d)(5) of the Code. The terms
"Constructive Owner," "Constructively Owns" and "Constructively Owned" shall
have the correlative meanings.
"Current Market Price" of publicly traded Common Stock or any other equity
security of the Corporation or any other issuer for any day shall mean the last
reported sales price, regular way, on such day, or, if no sale takes place on
such day, the average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the NYSE or, if such security is not
listed or admitted for trading on the NYSE, on the principal national securities
exchange on which such security is listed or admitted for trading or, if not
listed or admitted for trading on any national securities exchange, on the
Nasdaq National Market or, if such security is not quoted on the Nasdaq National
Market, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by Nasdaq or, if bid and asked prices for
such security on such day shall not have been reported through Nasdaq the
average of the bid and asked prices on such day as furnished by any NYSE member
firm regularly making a market in such security selected for such purpose by the
Corporation's Chief Executive Officer or the Board of Directors of the
Corporation.
"Fair Market Value" shall mean the average of the daily Current Market
Prices per share of Common Stock during the five consecutive Trading Days
selected by the Corporation commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the day before the
"ex" date with respect to the issuance or distribution requiring such
computation. The term "ex-date", when used with respect to any issuance or
distribution, means the first day on which the shares of Common Stock trade
regular way, without the right to receive such issuance or distribution, on the
exchange or in the market, as the case may be, for purposes of determining that
day's Current Market Price.
"IRS". The term "IRS" shall mean the United States Internal Revenue
Service.
"Market Price". The term "Market Price" as to any date shall mean the
average of the last sales price reported on the NYSE of Series B Preferred, on
the ten trading days immediately preceding the relevant date, or if not then
traded on the NYSE, the average of the last reported sales price of the Series B
Preferred on the ten trading days immediately preceding the relevant date as
reported on any exchange or quotation system over which the Series B Preferred
may be traded, of it not then traded over any exchange or quotation system, then
the market price of the Series B Preferred on the relevant date as determined in
good faith by the Board of Directors.
"Permitted Common Stock Cash Distributions" shall mean those cumulative
cash distributions paid with respect to the Common Stock after June 2, 1999,
which are not in excess of the following: the sum of (i) the Corporation's
cumulative undistributable funds from operations ("FFO"), as determined by the
Board of Directors of the Corporation, at June 2, 1999 plus (ii) the cumulative
amount of FFO, as determined by the Board of Directors of the Corporation, after
June 2, 1999 minus (iii) the cumulative amount of distributions accumulated or
paid on any other Preferred Stock after the Issue Date.
"Person". The term "Person" shall mean an individual, corporation,
partnership, estate, trust (including a trust qualified under Section 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set aside for or to be
used exclusively for the purposes described in Section 642(c) of the Code,
association, private foundation within the meaning of Section 509(a) of the
Code, joint stock company or other entity, and also includes a group as that
term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended; but does not include an underwriter which participates in a
public offering of the Series B Preferred or any interest therein, provided that
such ownership by such underwriter would not result in the Corporation being
"closely held" within the meaning of Section 856(h) of the Code, or otherwise
result in the Corporation failing to qualify as a REIT.
"Preferred Equity Stock." The term "Preferred Equity Stock" shall mean
shares of stock that are either Series B Preferred or Series B Excess Preferred.
"Purported Beneficial Transferee." The term "Purported Beneficial
Transferee" shall mean, with respect to any purported Transfer which results in
Series B Excess Preferred, the purported beneficial transferee or owner for whom
the Purported Record Transferee would have acquired or owned shares of Series B
Preferred if such Transfer had been valid under Section 8(a) below.
"Purported Record Transferee". The term "Purported Record Transferee" shall
mean, with respect to any purported Transfer which results in Series B Excess
Preferred Stock, the record holder of the Preferred Equity Stock if such
Transfer had been valid under Section 8(a) below.
"Trading Day" shall mean any day on which the securities in question are
traded on the NYSE or, if such securities are not listed or admitted for trading
on the NYSE, on the principal national securities exchange on which such
securities are listed or admitted or, if not listed or admitted for trading on
any national securities exchange, on the Nasdaq National Market or, if such
securities are not quoted on the Nasdaq National Market, in the applicable
securities market in which the securities are traded.
"Transfer". The term "Transfer" shall mean any sale, transfer, gift,
assignment, devise or other disposition of Preferred Equity Stock, including (i)
the granting of any option or entering into any agreement for the sale, transfer
or other disposition of Preferred Equity Stock or (ii) the sale, transfer,
assignment or other disposition of any securities (or rights convertible into or
exchangeable for Preferred Equity Stock), whether voluntary or involuntary,
whether of record or beneficially or Beneficially or Constructively Owned
(including but not limited to Transfers of interests in other entities which
result in changes in Beneficial or Constructive Ownership of Preferred Equity
Stock), and whether by operation of law or otherwise. The term "Transferring"
and "Transferred" shall have the correlative meanings.
"Transfer Agent" means American Stock Transfer & Trust Company, or such
other agent or agents of the Corporation as may be designated by the Board of
Directors of the Corporation or its designee as the transfer agent for the
Series B Preferred.
"Trust". The term "Trust" shall mean the trust created pursuant to Section
8(k).
"Trustee". The term "Trustee" shall mean the Person that is appointed by
the Corporation pursuant to Section 8(k) to serve as trustee of the Trust, and
any successor thereto.
(10) Any determination by the Board of Directors pursuant to the terms of
the Series B Preferred shall be final and binding upon the holders thereof and
shall be conclusive for all purposes.
Third: The Series B Preferred has been classified and designated by the Board
- -----
of Directors under the authority contained in the Charter.
Fourth: These Articles Supplementary have been approved by the Board of
- ------
Directors in the manner and by the vote required by law.
Fifth: These Articles Supplementary shall be effective at the time the State
- -----
Department of Assessments and Taxation of Maryland accepts these Articles
Supplementary for record.
IN WITNESS WHEREOF, RECKSON ASSOCIATES REALTY CORP. has caused these
presents to be signed in its name and on its behalf by its President and its
corporate seal to be hereunto affixed and attested by its Secretary, and the
said officers of the Corporation further acknowledge said instrument to be the
corporate act of the Corporation, and state under the penalties of perjury that,
to the best of their knowledge, information and belief, the matters and facts
therein set forth with respect to approval are true in all material respects.
RECKSON ASSOCIATES REALTY CORP.
By:/s/ Scott H. Rechler
-------------------------------
Name: Scott H. Rechler
Title: President
[SEAL]
ATTEST:
/s/ Gregg Rechler
-----------------------------
Name: Gregg Rechler
Title: Secretary
Exhibit 10.1
================================================================================
CREDIT AGREEMENT
Dated as of May 24, 1999
among
METROPOLITAN OPERATING PARTNERSHIP, L.P.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS,
WARBURG DILLON READ,
AS ARRANGER AND BOOK MANAGER,
and
UBS AG, STAMFORD BRANCH,
AS ADMINISTRATIVE AGENT,
================================================================================
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of May 24, 1999 (as amended,
supplemented or modified from time to time, the "Agreement") is entered into
among METROPOLITAN OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("Borrower"), the institutions from time to time a party hereto as Lenders,
whether by execution of this Agreement or an Assignment and Acceptance, WARBURG
DILLON READ, as Arranger and Book Manager, UBS AG, STAMFORD BRANCH, as
Administrative Agent, and 810 SEVENTH AVENUE, L.P., a New York limited
partnership ("Mortgagor").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. The following terms used in this Agreement
---------------------
shall have the following meanings, applicable both to the singular and the
plural forms of the terms defined:
"Administrative Agent" means UBS.
--------------------
"Affiliate", as applied to any Person, means any other Person that
---------
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power to vote ten percent (10.0%) or more of the equity
Securities having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting equity Securities or by
contract or otherwise.
"Agents" means, collectively, UBS in its capacity as Administrative
------
Agent, the Arranger, and each successor agent appointed pursuant to the terms
of Article XII of this Agreement.
"Agreement" has the meaning set forth in the preamble hereto.
---------
"Applicable Lending Office" means, with respect to a particular
-------------------------
Lender, (i) its Eurodollar Lending Office in respect of provisions relating to
Eurodollar Rate Loans, and (ii) its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Applicable Margin" means, with respect to the Eurodollar Loans
-----------------
secured by the Existing 810 Seventh Avenue Loan, 2.00%, with respect to each
other Eurodollar Loan, 2.25%, and with respect to each Base Rate Loan, 1%.
"Arranger" means WDR, appointed pursuant to the terms of Article XII
--------
of this Agreement.
"Assignment and Acceptance" means an Assignment and Acceptance in
-------------------------
substantially the form of EXHIBIT A attached hereto and made a part hereof
(with blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of Section 14.1.
"Authorized Financial Officer" means a chief executive officer,
----------------------------
president, chief financial officer, treasurer or other qualified senior officer
acceptable to the Administrative Agent.
"Base Eurodollar Rate" means, with respect to any Eurodollar Interest
--------------------
Period applicable to a Borrowing of Eurodollar Rate Loans, an interest rate per
annum determined by the Administrative Agent to be the rate per annum at which
deposits in Dollars are offered by the principal office of the Reference Bank in
London, England to major banks in the London interbank market at approximately
11:00 a.m. (London time) on the Eurodollar Interest Rate Determination Date for
such Eurodollar Interest Period for a period equal to such Eurodollar Interest
Period and in an amount substantially equal to the amount of the Eurodollar Rate
Loan.
"Base Rate" means, for any period, a fluctuating interest rate per
---------
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(i) the rate of interest announced publicly by UBS in New York, New
York from time to time, as UBS's prime rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum plus (B)
the Federal Funds Rate in effect from time to time during such period.
"Base Rate Loan" means (i) a Loan which bears interest at a rate
--------------
determined by reference to the Base Rate and the Applicable Margin as provided
in Section 5.1(a) or (ii) an overdue amount which was a Base Rate Loan
immediately before it became due.
"Benefit Plan" means any Plan that is subject to Title IV of ERISA.
------------
"Book Manager" means WDR, appointed pursuant to the terms of Article
------------
XII of this Agreement.
"Borrower" has the meaning set forth in the introductory paragraph
--------
hereof.
"Borrower Partnership Agreement" means the Agreement of Limited
------------------------------
Partnership of the Borrower dated July 2, 1998, as amended by the First
Amendment dated December 8, 1998, as such agreement may be further amended,
restated, modified or supplemented from time to time with the consent of the
Agents or as permitted under Section 10.9.
"Borrowing" means a borrowing consisting of Loans of the same type
---------
made, continued or converted on the same day.
"Business Day" means a day, in the applicable local time, which is not
------------
a Saturday or Sunday or a legal holiday and on which banks are not required or
permitted by law or other governmental action to close (i) in New York, New York
and (ii) in the case of Eurodollar Rate Loans, in London, England.
"Capital Expenditures" means, for any period, the aggregate of all
--------------------
expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity
with GAAP, are required to be included in or reflected by the Company's, the
Borrower's or any of its Subsidiaries' fixed asset accounts as reflected in any
of their respective balance sheets; provided, however, Capital Expenditures
shall include the sum of all expenditures by the Consolidated Businesses
allocable to the Consolidated Businesses for tenant improvements, leasing
commissions, property level capital expenditures (e.g., roof replacement,
parking lot repairs, etc., but not capital expenditures in connection with
expansions).
"Capital Lease" means any lease of any property (whether real,
-------------
personal or mixed) by a Person as lessee which, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person.
"Capital Stock" means, with respect to any Person, any capital stock
-------------
of such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Capitalization Rate" means, with respect to each Project, the
-------------------
capitalization rate for such Project as set forth on SCHEDULE A hereto.
"Capitalization Value" means the sum of (i) the quotient of (x) NOI
--------------------
from each Project multiplied by four (4), and (y) the applicable Capitalization
Rate; (ii) unrestricted Cash and Cash Equivalents; (iii) land and Projects under
development (at book value), which credit will be limited to ten percent (10%)
of Capitalization Value;
"Cash and Cash Equivalents" means unrestricted (i) cash, (ii)
-------------------------
marketable direct obligations issued or unconditionally guaranteed by the United
States government and backed by the full faith and credit of the United States
government; and (iii) domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations), which, at the time of
acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moody's
provided that the maturities of such Cash and Cash Equivalents shall not
exceed one year.
"CERCLA" means the Comprehensive Environmental Response, Compensation
------
and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., any amendments
thereto, any successor statutes, and any regulations or guidance promulgated
thereunder.
"Claim" means any claim or demand, by any Person, of whatsoever kind
-----
or nature for any alleged Liabilities and Costs, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means May 24, 1999.
------------
"Commission" means the Securities and Exchange Commission and any
----------
Person succeeding to the functions thereof.
"Commitment" means with respect to any Lender, the obligation of such
----------
Lender to make Loans pursuant to the terms and conditions of this Agreement, and
which shall not exceed the principal amount set forth opposite such Lender's
name under the heading "Commitment" on the signature pages hereof or the
signature page of the Assignment and Acceptance by which it became a Lender, as
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment and Acceptance, and "Commitments" means the
aggregate principal amount of the Commitments of all the Lenders, the maximum
amount of which shall be $130,000,000 as reduced from time to time pursuant to
Section 4.1.
"Company" means Metropolitan Partners LLC, a Delaware limited
-------
liability company.
"Compliance Certificate" has the meaning set forth in Section 8.2(b).
----------------------
"Consolidated" means consolidated, in accordance with GAAP.
------------
"Consolidated Businesses" means the Company, the Borrower and their
-----------------------
wholly-owned Subsidiaries.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
-----------
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos containing materials (in any
form or condition), polychlorinated biphenyls (PCBs), or any constituent of any
such sub stance or waste, and includes, but is not limited to, these terms as
defined in federal, state or local laws or regulations.
"Contingent Obligation" as to any Person means, without duplication,
---------------------
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Per son's financial statements in
accordance with GAAP, guaranteeing partially or in whole any non-recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets) and
guarantees of non-monetary obligations (other than guarantees of completion)
which have not yet been called on or quantified, of such Person or of any other
Person. Notwithstanding the foregoing, any litigation required to be disclosed
in the footnotes to such Person's financial statements in accordance with GAAP
shall not be included as a "Contingent Obligation" unless the same shall have
been reserved for in accordance with GAAP. The amount of any Contingent
Obligation described in clause (ii) shall be deemed to be (a) with respect to a
guaranty of interest or interest and principal, or operating income guaranty,
the sum of all payments required to be made there under (which in the case of an
operating income guaranty shall be deemed to be equal to the debt service for
the note secured thereby), calculated at the interest rate applicable to such
Indebtedness, through (i) in the case of an interest or interest and principal
guaranty, the stated date of maturity of the obligation (and commencing on the
date interest could first be payable thereunder), or (ii) in the case of an
operating income guaranty, the date through which such guaranty will remain in
effect, and (b) with respect to all guarantees not covered by the preceding
clause (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such guaranty is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as recorded on the
balance sheet and on the footnotes to the most recent financial statements of
the Borrower required to be delivered pursuant hereto. Notwithstanding anything
contained herein to the contrary, guarantees of completion shall not be deemed
to be Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion shall be deemed to be
a Contingent Obligation in an amount equal to any such claim. Subject to the
preceding sentence, (i) in the case of a joint and several guaranty given by
such Person and another Person (but only to the extent such guaranty is
recourse, directly or indirectly to the Borrower), the amount of the guaranty
shall be deemed to be 100% thereof unless and only to the extent that (X) such
other Person has delivered Cash or Cash Equivalents to secure all or any part
of such Person's guaranteed obligations or (Y) such other Person holds a credit
rating from either Moody's or S&P of BBB- (or its equivalent) or better, and
(ii) in the case of a guaranty, (whether or not joint and several) of an
obligation otherwise constituting Debt of such Person, the amount of such
guaranty shall be deemed to be only that amount in excess of the amount of the
obligation constituting Indebtedness of such Person. Notwithstanding anything
contained herein to the contrary, "Contingent Obligations" shall not be deemed
to include guarantees of loan commitments or of construction loans to the
extent the same have not been drawn.
"Contractual Obligation", as applied to any Person, means any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by which
it or any of its properties is bound, or to which it or any of its properties is
subject.
"Credit Obligations" means, at any particular time, the outstanding
------------------
principal amount of the Loans at such time.
"Cure Loans" has the meaning set forth in Section 4.2(b)(v)(C).
----------
"Customary Permitted Liens" means
-------------------------
(i) Liens (other than Environmental Liens and Liens in favor of the
PBGC) with respect to the payment of taxes, assessments or governmental
charges or levies in all cases which are not yet due or which are being
contested in good faith by appropriate proceedings in accordance with
Section 9.4 and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP;
(ii) statutory and common law Liens of land lords against any Property
of the Borrower or any of its Subsidiaries;
(iii) Liens against any Property of the Borrower or any of its
Subsidiaries in favor of suppliers, mechanics, carriers, materialmen,
warehousemen or workmen and other Liens against any Property of the
Borrower or any of its Subsidiaries imposed by law created in the ordinary
course of business for amounts which could not reasonably be expected to
result in a Material Adverse Effect;
(iv) Liens (other than any Lien in favor of the PBGC) incurred or
deposits made in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety, appeal
and performance bonds; provided that (A) all such Liens do not in the
aggregate materially detract from the value of the Borrower's or such
Subsidiary's assets or Property or materially impair the use thereof in
the operation of their respective businesses, and (B) all Liens of
attachment or judgment and Liens securing bonds to stay judgments or in
connection with appeals which do not secure at any time an aggregate amount
of recourse Indebtedness exceeding $2,000,000; and
(v) Liens against any Property of the Borrower or any Subsidiary of
the Borrower arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the use
of Real Property which do not materially interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(vi) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower and its
Subsidiaries taken as a whole;
(vii) Liens placed upon equipment or machinery used in the ordinary
course of business of the Borrower or any of its Subsidiaries at the time
of acquisition thereof by the Borrower or any such Subsidiary or within
180 days thereafter to secure Indebtedness incurred to pay all or a portion
of the purchase price thereof, provided that the Lien encumbering the
equipment or machinery so acquired does not encumber any other asset of the
Borrower or such Subsidiary;
(viii) customary restrictions imposed by licensors of software or
trademarks on users thereof;
(ix) interests of licensees and sublicensees in any trademarks or
other intellectual property license or sublicense by the Borrower or any
of its Subsidiaries; and
(x) Environmental Liens less than $5,000,000, which are being
contested in good faith by appropriate proceedings.
"Debt Yield" has the meaning set forth in Section 10.11(d).
----------
"Designated Lender" has the meaning set forth in Section 13.4.
-----------------
"DOL" means the United States Department of Labor and any Person
---
succeeding to the functions thereof.
"Dollars" and "$" mean the lawful money of the United States.
------- -
"Domestic Lending Office" means, with respect to any Lender, such
-----------------------
Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Administrative Agent.
"Eligible Assignee" means (i) a Lender or any Affiliate thereof; (ii)
-----------------
a commercial bank having total assets in excess of $2,500,000,000; (iii) the
central bank of any country which is a member of the Organization for Economic
Cooperation and Development; or (iv) a finance company or other financial
institution reasonably acceptable to the Administrative Agent, which is
regularly engaged in making, purchasing or investing in loans and having total
assets in excess of $300,000,000 or is otherwise reasonably acceptable to the
Administrative Agent.
"Environmental, Health or Safety Requirements of Law" means all
---------------------------------------------------
Requirements of Law derived from or relating to any federal, state or local law,
ordinance, rule, regulation, Permit, license or other binding determination of
any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect.
"Environmental Lien" means a Lien in favor of any Governmental
------------------
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Environmental Property Transfer Act" means any applicable Requirement
-----------------------------------
of Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Environmental Cleanup Responsibility Act" or
"Responsible Property Transfer Act".
"Equipment" means equipment used in connection with the maintenance of
---------
Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
-----
U.S.C. Section 1000 et seq., any amendments thereto, any successor statutes, and
any regulations or guidance promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member of the
---------------
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Borrower; (ii) a partner ship or other trade
or business (whether or not incorporated) which is under common control (within
the meaning of Section 414(c) of the Internal Revenue Code) with the Borrower;
and (iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"ERISA Termination Event" means (i) a Report able Event with respect
-----------------------
to any Benefit Plan or Multiemployer Plan; (ii) the withdrawal of the Borrower
or any ERISA Affiliate from a Benefit Plan during a plan year in which the
Borrower or such ERISA Affiliate was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of 20% of Benefit Plan participants who are employees
of the Borrower or any ERISA Affiliate; (iii) the imposition of an obligation on
the Borrower or any ERISA Affiliate under Section 4041 of ERISA to provide
affected parties written notice of intent to terminate a Benefit Plan in a
distress termination described in Section 4041(c) of ERISA; (iv) the
institution by the PBGC of proceedings to terminate a Benefit Plan; (v) any
event or condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Benefit Plan; or (vi) the partial or complete withdrawal of the Borrower or any
ERISA Affiliate from a Multiemployer Plan.
"Eurodollar Affiliate" means, with respect to each Lender, the
--------------------
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Eurodollar Affiliate" on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the Borrower and
the Administrative Agent.
"Eurodollar Interest Period" has the meaning set forth in Section
--------------------------
5.2(b).
"Eurodollar Interest Rate Determination Date" has the meaning set
-------------------------------------------
forth in Section 5.2(c).
"Eurodollar Lending Office" means, with respect to any Lender, such
-------------------------
Lender's office (if any) specified as the "Eurodollar Lending Office" under its
name on the signature pages hereof or on the Assignment and Acceptance by which
it became a Lender or such other office or offices of such Lender as it may from
time to time specify by written notice to the Borrower and the Administrative
Agent.
"Eurodollar Rate" means, with respect to any Eurodollar Interest
---------------
Period applicable to a Eurodollar Rate Loan, an interest rate per annum obtained
by dividing (i) the Base Eurodollar Rate applicable to that Eurodollar Interest
Period by (ii) a percentage equal to 100% minus the Eurodollar Reserve
Percentage in effect on the relevant Eurodollar Interest Rate Determination
Date.
"Eurodollar Rate Loan" means (i) a Loan which bears interest at a rate
--------------------
determined by reference to the Eurodollar Rate and the Applicable Margin for
Eurodollar Rate Loans, as provided in Section 5.1(a) or (ii) an overdue amount
which was a Eurodollar Loan immediately before it became due.
"Eurodollar Reserve Percentage" means, for any day, that percentage
-----------------------------
which is in effect on such day, as prescribed by the Federal Reserve Board for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York, New York with deposits exceeding
five billion Dollars in respect of "Eurocurrency Liabilities" (or in respect of
any other category of liabilities which includes deposits by reference to which
the interest rate on Eurodollar Rate Loans is determined or any category of
extensions of credit or other assets which includes loans by a non-United States
office of any bank to United States residents).
"Event of Default" means any of the occurrences set forth in Section
----------------
11.1 after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in Section 11.1.
"Existing Credit Agreement" means the Amended and Restated Credit
-------------------------
Agreement, dated as of January 12, 1999, among Reckson, Reckson Morris Operating
Partner ship, L.P., the institutions from time to time party thereto as lender,
ING (U.S.) Capital LLC, as documentation agent, and The Chase Manhattan Bank,
as arranger, book manager and administrative agent, as the same may be amended,
modified or restated.
"Existing 810 Seventh Avenue Loan" the mortgage securing a portion of
--------------------------------
the Loans, not to exceed $60,000,000 in the aggregate, from 810 Seventh Avenue,
L.P. to the Administrative Agent, on behalf of the Lenders, effective as of the
date of the consummation of the Mergers.
"Existing Permitted Liens" means each of the Liens other than
------------------------
Customary Permitted Liens set forth on SCHEDULE 1.1.1 hereto.
"Fair Market Value" means, for any Project hereafter acquired, the
-----------------
lesser of (x) purchase price of such Project and (y) the quotient of (i) the NOI
from such Project and (ii) the Weighted Average Capitalization Rate.
"Federal Funds Rate" means, for any period, a fluctuating interest
------------------
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day in New York, New York, for the next preceding
Business Day) in New York, New York by the Federal Reserve Bank of New York, or
if such rate is not so published for any day which is a Business Day in New
York, New York, the average of the quotations for such day on transactions by
the Reference Bank, as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System or any Governmental Authority succeeding to its functions.
"Financial Statements" means (i) quarterly and annual consolidated
--------------------
statements of income and retained earnings, statements of cash flow, and balance
sheets, prepared in accordance with GAAP, consistently applied, and (ii) such
other financial statements of the Borrower, the Company and the other
Consolidated Businesses that the Company shall routinely and regularly prepare
and that the Arranger or the Requisite Lenders may from time to time reasonably
request.
"Fiscal Year" means the fiscal year of the Company and the Borrower
-----------
for accounting and tax purposes, which shall be the 12-month period ending on
December 31 of each calendar year.
"Fixed Charges" means, with respect to any fiscal period, the sum of
-------------
(a) Total Interest Expense and (b) the aggregate of all scheduled principal
payments on Total Outstanding Indebtedness according to GAAP made or required to
be made during such fiscal period for the Consolidated Businesses (but excluding
balloon payments of principal due upon the stated maturity of an Indebtedness),
(c) the aggregate of all scheduled ground lease rental payments required to be
made during such fiscal period for the Consolidated Business, if any, and (d)
the aggregate of all dividends payable (whether paid or accrued) on all
preferred stock and other preferred securities or preferential arrangements of
the Consolidated Businesses, including preferred stock owned by Reckson
Associates Realty Corp. and Crescent Real Estate Equities Limited Partnership.
"Funding Date" means the date on or after the Closing Date, on which
------------
all of the conditions described in Section 6.1 have been satisfied (or waived)
in a manner satisfactory to the Administrative Agent and the Lenders and on
which the Loans under this Agreement are made by the Lenders to the Borrower.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the Closing
Date (unless otherwise specified herein as in effect on another date or dates).
"General Partner" means the Company and any successor general
---------------
partner(s) of the Borrower.
"Governmental Approval" means all right, title and interest in any
---------------------
existing or future certificates, licenses, permits, variances, authorizations
and approvals issued by any Governmental Authority having jurisdiction with
respect to any Project.
"Governmental Authority" means any nation or government, any federal,
----------------------
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantors" means the Company, and all subsidiaries of the Borrower
----------
and the Company (as more particularly named in the Guaranty Agreement).
"Guaranty" means the Guaranty Agreement, dated as of the date hereof,
--------
made by the Guarantors for the benefit of the Lenders.
"Improvements" means all buildings, fixtures, structures, parking
------------
areas, landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items owned by tenants or other third-parties unaffiliated with the Borrower
and (c) any items of personal property.
"Indebtedness", as applied to any Person, means, at any time, without
------------
duplication, (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person) (i) for borrowed money (including construction loans) or evidenced
by debt securities, debentures, acceptances, notes or other similar
instruments, and any accrued interest and fees relating thereto, (ii) under
profit payment agreements or in respect of obligations to redeem, repurchase or
exchange any Securities of such Person or to pay dividends in respect of any
preferred stock (but only to the extent that such Person shall be contractually
obligated to pay the same), (iii) with respect to letters of credit issued for
such Person's account, (iv) to pay the deferred purchase price of property or
services, except accounts payable and accrued expenses arising in the ordinary
course of business, (v) in respect of Capital Leases, (vi) which are Contingent
Obligations or (vii) under indemnities but only at such time as a claim shall
have been made thereunder; (b) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any property of such
Person, whether or not such indebtedness, obligations or liabilities are assumed
by such Person, all as of such time; (c) all indebtedness, obligations or other
liabilities of such Person in respect of interest rate contracts and foreign
exchange contracts, net of liabilities owed to such Person by the counterparties
thereon; (d) all preferred stock subject (upon the occurrence of any contingency
or otherwise) to mandatory redemption; and (e) all Contractual Obligations with
respect to any of the foregoing.
"Indemnified Matters" has the meaning set forth in Section 14.3.
-------------------
"Indemnitees" has the meaning set forth in Section 14.3.
-----------
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidance promulgated thereunder.
"Investment" means, with respect to any Person, (i) any purchase or
----------
other acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person,
(iii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business, and (iv) any
purchase or other acquisition by that Person of Real Property, whether directly
or indirectly. The amount of any In vestment shall be the original cost of such
Investment, without any adjustments for increases or decreases in value or
write-ups, write-downs or write-offs with respect to such Investment.
"IRS" means the Internal Revenue Service and any Person succeeding to
---
the functions thereof.
"knowledge" with reference to the Company, the Borrower or any
---------
Subsidiary of either of them, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without limitation,
interviewing and questioning such other Persons as the Company, the Borrower or
such Subsidiary, as applicable, deems reasonably necessary).
"Lease" means a lease, license, concession agreement or other
-----
agreement providing for the use or occupancy of any portion of any Project,
including all amendments, supplements, modifications and assignments thereof and
all side letters or side agreements relating thereto.
"Lender" means the Administrative Agent, and each financial
------
institution a signatory hereto as a Lender as of the Closing Date and, at any
other given time, each financial institution which is a party hereto as
Administrative Agent or Lender, whether as a signatory hereto or pursuant to an
Assignment and Acceptance, and regardless of the capacity in which such entity
is acting (i.e. whether as Administrative Agent or Lender).
"Leverage Ratio" has the meaning set forth in Section 10.11(a).
--------------
"Liabilities and Costs" means all liabilities, obligations,
---------------------
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful
or wanton injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without limitation,
attorney, expert and consulting fees and costs of investigation, feasibility or
Remedial Action studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or contingent, past, present or
future.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement or similar notice (other than a financing
statement filed by a "true" lessor pursuant to Section 9-408 of the Uniform
Commercial Code), naming the owner of such property as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"Limited Partners" means those Persons who from time to time are
----------------
limited partners of the Borrower; and "Limited Partner" means each of the
Limited Partners, individually.
"Loan Account" has the meaning set forth in Section 4.3(b).
------------
"Loan Documents" means this Agreement, the Notes and the Guaranty.
--------------
"Loans" means the loans made by a Lender pursuant to Section 2.1;
-----
provided, that if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Conversion/Continuation, the term "Loan"
shall refer to the combined principal amount resulting from such combination or
to each of the separate principal amounts resulting from such subdivision, as
the case may be.
"LTV Ratio" means, as of any date, the ratio, expressed as a
---------
percentage, of the aggregate amount of any Indebtedness to the Fair Market Value
of the Real Property encumbered thereby.
"Management Company" means, collectively (i) Reckson Management Group,
------------------
Inc., a Delaware corporation, and its wholly-owned or controlled Subsidiaries
and (ii) such other property management companies controlled (directly or
indirectly) by Reckson, the Company or the Borrower and which property
management companies manage properties owned by the Company, the Borrower and
its Subsidiaries and for which the Borrower has previously provided the
Administrative Agent with: (1) notice of such property management company, (2)
evidence reasonably satisfactory to the Administrative Agent that such property
management company is controlled (directly or indirectly) by Reckson, the
Company or the Borrower, and (3) evidence reasonably satisfactory to the
Administrative Agent that such property management company manages properties
owned, in whole or in part by Reckson, the Company or the Borrower or its
Subsidiaries.
"Margin Stock" means "margin stock" as such term is defined in
------------
Regulation U.
"Material Adverse Effect" means a material adverse effect upon (i) the
-----------------------
financial condition or assets of the Company, the Borrower and their
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
material obligations under the Loan Documents, (iii) the ability of each
Guarantor to perform its material obligations under the Guaranty, or (iv) the
ability of the Lenders or the Administrative Agent to enforce any of the Loan
Documents.
"Maximum Credit Amount" means, at any particular time, the
---------------------
Commitments at such time, less the amount of the Existing 810 Seventh Avenue
Loan outstanding from time to time under the notes secured thereby.
"Mergers" means the collective reference to the merger of Tower Realty
-------
Trust, Inc. with and into the Company with the Company being the survivor after
the merger and the merger of Tower Realty Operating Partner ship, L.P. with and
into the Borrower with the Borrower being the survivor after the merger and the
merger of certain Affiliates of Tower Realty Operating Partnership, L.P. with
and into certain Affiliates of the Borrower.
"Minimum Unsecured Debt Yield" has the meaning set forth in Section
----------------------------
10.11(g).
"Minority Holdings" means any interests in partnerships, joint
-----------------
ventures, limited liability companies, trusts, associations and corporations
held or owned directly or indirectly by the Borrower and/or the Company which
are not wholly-owned by the Borrower and/or the Company.
"Moody's" means Moody's Investor Services, Inc.
-------
"Multiemployer Plan" means a "multiemployer plan" as defined in
------------------
Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to (or is or was required to be contributed to) by
either the Borrower or any ERISA Affiliate or in respect of which the Borrower
or any ERISA Affiliate has assumed any liability.
"Net Cash Proceeds" means all cash when and as received in connection
-----------------
with the sale or refinancing of any asset, or any sale of any equity interest
(other than such as would give rise to Net Offering Proceeds) in the Borrower,
the Company or any of their Subsidiaries, less reasonable costs and expenses,
repayment of secured indebtedness with respect to the applicable asset, and net
of an amount equal to taxable capital gains and real estate transfer taxes
payable in connection with any asset sale.
"Net Offering Proceeds" means all cash or other assets received by the
---------------------
Company as a result of the sale of common shares, preferred shares, partnership
interests, limited liability company interests, convertible securities or other
ownership or equity interests in the Company, other than in connection with the
acquisition of an asset or the equity securities of any Person but only to the
extent that no cash is received in connection there with, less customary costs,
expenses and discounts of issuance paid by the Company.
"NOI" means, for any period, (x) net income determined in accordance
---
with GAAP, before gains or losses from extraordinary items relating to any Real
Property, plus (y) (i) any interest expense relating to such Real Property, and
(ii) depreciation and amortization relating to such Real Property, less (z) (i)
free rent and accrued rent with respect to tenants that are more than 60 days in
arrears in the payment of rent, and further adjusted to omit the straight line
treatment of rent, so as to account for rent on an accrual basis, (ii) any
interest income relating to such Real Property, (iii) management fees for each
Real Property calculated as the greater of (x) actual management fees and (y) an
amount equal to 2% of gross revenues with respect to a Real Property, and (iv)
Capital Expenditures calculated as the greater of (x) actual capital
expenditures and (y) an amount per annum equal to $0.25 multiplied by the number
of gross square feet for the Real Property.
"Non Pro Rata Loan" has the meaning set forth in Section 4.2 (b)(v).
-----------------
"Note" has the meaning set forth in Section 4.3(a); "Notes" means,
----
collectively, all of such Notes outstanding at any given time.
"Notice of Borrowing" means a notice substantially in the form of
-------------------
EXHIBIT C attached hereto and made a part hereof.
"Notice of Conversion/Continuation" means a notice substantially in
---------------------------------
the form of EXHIBIT D attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to Section 5.1(c).
"Obligations" means all Loans, advances, debts, liabilities and
-----------
monetary obligations owing by the Borrower to the Administrative Agent, any
other Lender, or any Person entitled to indemnification pursuant to Section
14.3 of this Agreement, of any kind or nature, arising under this Agreement, the
Notes or any other Loan Document. The term includes, without limitation, all
interest, charges, reasonable expenses, fees, reasonable attorneys' fees and
disbursements and any other sum chargeable to the Borrower under this Agreement
or any other Loan Document.
"Officer's Certificate" means, as to a corporation, a certificate
---------------------
executed on behalf of such corporation by the chairman of its board of
directors (if an officer of such corporation) or its chief executive officer,
president, any of its vice-presidents, its chief financial officer, or its
treasurer and, as to a partner ship, a certificate executed on behalf of such
partner ship by the chairman of the board of directors (if an officer of such
corporation) or chief executive officer, president, any vice-president, or
treasurer of the general partner of such partnership.
"OP Units" means limited partnership interests in the Borrower.
--------
"Operating Lease" means, as applied to any Person, any lease of any
---------------
property (whether real, personal or mixed) by that Person as lessee which is not
a Capital Lease.
"Organizational Documents" means, with respect to any corporation,
------------------------
limited liability company, or partnership (i) the articles/certificate of
incorporation (or the equivalent organizational documents) of such corporation
or limited liability company, (ii) the partnership agreement executed by the
partners in the partnership, (iii) the by-laws (or the equivalent governing
documents) of the corporation, limited liability company or partner ship, and
(iv) any document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of such corporation's Capital
Stock or such limited liability company's or partnership's equity or ownership
interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
----
Section 651 et seq., any amendments thereto, any successor statutes and any
regulations or guidance promulgated thereunder.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
----
succeeding to the functions thereof.
"Permits" means any permit, consent, approval, authorization license,
-------
variance, or permission required from any Person, including any Governmental
Approvals.
"Permitted Securities Options" means the subscriptions, options,
----------------------------
warrants, rights, convertible Securities and other agreements or commitments
relating to the issuance of the Borrower's Securities or the Company's Capital
Stock identified as such on SCHEDULE 1.1.2.
"Person" means any natural person, corporation, limited liability
------
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any Governmental
Authority.
"Plan" means an employee benefit plan defined in Section 3(3) of ERISA
----
in respect of which the Borrower or any ERISA Affiliate (i) is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA or (ii) has assumed or is otherwise subject to any liability.
"Potential Event of Default" means an event which, with the giving of
--------------------------
notice or the lapse of time, or both, would constitute an Event of Default.
"Prepayment Date" has the meaning set forth in Section 4.1(d).
---------------
"Project" means any office properties wholly owned, directly or
-------
indirectly, by any of the Consolidated Businesses, as set forth on SCHEDULE B or
any wholly owned office properties, or mortgage encumbering the office property
located at 919 Third Avenue, New York, New York, that may hereafter be acquired,
directly or indirectly, by any of the Consolidated Businesses.
"Property" means any Real Property or personal property, plant,
--------
building, facility, structure, equipment, general intangible, receivable, or
other asset owned or leased by any Consolidated Business or Minority Holding.
The definition "Property" shall specifically exclude items of Real Property or
personal property owned or leased by members of the Reckler family.
"Pro Rata Share" means, with respect to any Lender, the percentage
--------------
obtained by dividing (i) the sum of such Lender's Commitment (in each case, as
adjusted from time to time in accordance with the provisions of this Agreement
or any Assignment and Acceptance to which such Lender is a party) by (ii) the
aggregate amount of all of the Commitments.
"Quarterly Compliance Certificate" has the meaning set forth in
--------------------------------
Section 8.2(a)(iii).
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
----
U.S.C. Section 6901 et seq., any amendments thereto, any successor statutes, and
any regulations or guidance promulgated thereunder.
"Real Property" means all of the Borrower's and the consolidated
-------------
Subsidiaries' present and future right, title and interest (including, without
limitation, any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any Improvements of every nature whatsoever (the rights and interests
described in clauses (i) and (ii) above being the "Premises"), (iii) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining such land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto and (iv) all other rights and
privileges thereunto belonging or appertaining and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of
any of the rights and interests described in clause (iii) above.
"Reckson" means Reckson Operating Partnership, L.P., a Delaware
-------
limited partnership.
"Reference Bank" means UBS.
--------------
"Register" has the meaning set forth in Section 14.1(c).
--------
"Regulation A" means Regulation A of the Federal Reserve Board as in
------------
effect from time to time.
"Regulation T" means Regulation T of the Federal Reserve Board as in
------------
effect from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board as in
------------
effect from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board as in
------------
effect from time to time.
"REIT" means a domestic trust or corporation that qualifies as a real
----
estate investment trust under the provisions of Sections 856, et seq. of the
Internal Revenue Code.
"Release" means any release, spill, emission, leaking, pumping,
-------
pouring, dumping, injection, deposit, disposal, abandonment, or discarding of
barrels, containers or other receptacles, discharge, emptying, escape,
dispersal, leaching or migration into the indoor or outdoor environment or into
or out of any Property, including the movement of Contaminants through or in the
air, soil, surface water, groundwater or Property.
"Remedial Action" means actions required to (i) clean up, remove,
---------------
treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants; or (iii) investigate and determine if a
remedial response is needed and design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"Reportable Event" means any of the events described in Section
----------------
4043(c) of ERISA and the regulations promulgated thereunder as in effect from
time to time but not including any such event as to which the thirty (30) day
notice requirement has been waived by applicable PBGC regulations.
"Requirements of Law" means, as to any Person, the charter and by-laws
-------------------
or other organizational or governing documents of such Person, and any law,
rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit and Environmental, Health or
Safety Requirement of Law.
"Requisite Lenders" means Lenders whose Pro Rata Shares, in the
-----------------
aggregate, are equal to or greater than sixty-six and two-thirds percent
(66.67%); provided, however, that, in the event any of the Lenders shall have
failed to fund its Pro Rata Share of any Loan requested by the Borrower which
such Lenders are obligated to fund under the terms of this Agreement and any
such failure has not been cured as provided in Section 4.2(b)(v)(B), then for so
long as such failure continues, "Requisite Lenders" means Lenders (excluding
all Lenders whose failure to fund their respective Pro Rata Shares of such Loans
have not been so cured) whose Pro Rata Shares represent sixty-six and two-thirds
percent (66.67%) or more of the aggregate Pro Rata Shares of such Lenders;
provided, further, however, that, in the event that the Commitments have been
terminated pursuant to the terms of this Agreement, "Requisite Lenders" means
Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans are sixty six and
two thirds percent (66.67%) or more.
"Revolving Credit Agreement" means the Credit Agreement, dated as of
--------------------------
July 23, 1998, among Reckson, Reckson Morris Operating Partnership, L.P., The
Chase Manhattan Bank, as administrative agent, UBS, as successor to UBS AG, New
York Branch, as syndication agent, and the other lenders party thereto, as the
same may be amended, modified or restated.
"S&P" means Standard & Poor's Ratings Services, a division of The
---
McGraw Hill Companies, Inc.
"Secured Indebtedness" means any Indebtedness secured by a Lien,
--------------------
other than the Existing 810 Seventh Avenue Loan.
"Securities" means any stock, shares, voting trust certificates,
----------
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
-----------------------
as amended from time to time, and any successor statute.
"Solvent", when used with respect to any Per son, means that at the
-------
time of determination:
(i) the fair saleable value of its as sets is in excess of the total
amount of its liabilities (including, without limitation, contingent
liabilities); and
(ii) the present fair saleable value of its assets is greater than its
probable liability on its existing debts as such debts become absolute and
matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments) as
they mature; and
(iv) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
"Subsidiary" of a Person means any corporation, limited liability
----------
company, general or limited partnership, or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned or controlled by such Per son, one or more of
the other subsidiaries of such Per son or any combination thereof.
"Taxes" has the meaning set forth in Section 13.1(a).
-----
"Tenant Allowance" means a cash allowance paid to a tenant by the
----------------
landlord pursuant to a Lease.
"Termination Date" means the earlier to occur of (i) November 24, 1999
----------------
(or, if not a Business Day, the next preceding Business Day); and (ii) the date
of termination or acceleration of the Credit Obligations pursuant to the terms
of this Agreement.
"TI Work" means any construction or other "build-out" of tenant
-------
leasehold improvements to the space demised to such tenant under Leases
(excluding such tenant's furniture, fixtures and equipment) per formed pursuant
to the terms of such Leases, whether or not such tenant improvement work is
performed by or on behalf of the landlord or as part of a Tenant Allowance.
"Total Interest Expense" means, for any period, the sum of (i)
----------------------
interest expense of the Consolidated Businesses paid during such period and
(ii) interest expense of the Consolidated Businesses accrued and/or capitalized
for such period and (iii) the portion of the interest expense of Minority
Holdings allocable to the Borrower in accordance with GAAP and paid during such
period with respect to recourse Indebtedness and (iv) the portion of the
interest expense of Minority Holdings allocable to the Borrower in accordance
with GAAP and accrued and/or capitalized for such period with respect to
recourse Indebtedness, in each case including participating interest expense but
excluding extraordinary interest expense, and net of amortization of deferred
costs associated with new financings or refinancings of existing Indebtedness.
"Total NOI" means, as of the first day of each fiscal quarter for the
---------
immediately preceding fiscal quarter, the sum of NOI relating to all Projects
for such period. An example of the foregoing calculation is set forth on EXHIBIT
G hereto.
"Total Outstanding Indebtedness" means, for any period, the sum of (i)
------------------------------
the amount of Indebtedness of the Consolidated Businesses set forth on the then
most recent quarterly financial statements of the Borrower, prepared in
accordance with GAAP, plus any additional Indebtedness incurred by the
Consolidated Businesses since the time of such statements, less any Indebtedness
repaid by the Consolidated Businesses since the time of such statements, and
(ii) the outstanding amount of recourse Indebtedness allocable to the Minority
Holdings set forth on the then most recent quarterly financial statements of the
Borrower or the applicable Minority Holding, prepared in accordance with GAAP
and allocable in accordance with GAAP to any of the Consolidated Businesses,
plus any additional Indebtedness allocable to the Minority Holdings in
accordance with GAAP to any of the Consolidated Businesses since the time of
such statements, less any Indebtedness repaid by the Minority Holdings allocable
in accordance with GAAP to any of the Consolidated Businesses since the time of
such statements, and (iii) without duplication, the Contingent Obligations of
the Consolidated Businesses, including trade debt not incurred in the ordinary
course of business.
"Treasury Rate" means, as of any date, a rate equal to the annual
-------------
yield to maturity on the U.S. Treasury Constant Maturity Series with a ten year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
- -- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the
Administrative Agent shall select, in its reasonable discretion, an alternate
basis for the determination of Treasury yield for U.S. Treasury Constant
Maturity Series with ten year maturities.
"UBS" means UBS AG, Stamford Branch.
---
"Unencumbered NOI" means, for any period, Total NOI from the
----------------
Consolidated Businesses from Projects that are not subject to or encumbered by
Secured Indebtedness.
"Unencumbered Value" means, for any period, that portion of
------------------
Capitalization Value attributable to Projects not encumbered by Secured
Indebtedness.
"Uniform Commercial Code" means the Uniform Commercial Code as enacted
-----------------------
in the State of New York, as it may be amended from time to time.
"Unsecured Indebtedness" means that portion of Total Outstanding
----------------------
Indebtedness that is not secured by a Lien.
"Unsecured Interest Expense" means that portion of Total Interest
--------------------------
Expense attributable to Unsecured Indebtedness.
"WDR" means Warburg Dillon Read.
---
"Weighted Average Capitalization Rate" means the greater of (x)9.7%,
------------------------------------
the current Weighted Average Capitalization Rate as attached on SCHEDULE A
hereto, and (y) the percentage that would result from the weighted average of
the Capitalization Rates of the resultant Projects. Notwithstanding the
foregoing, how ever, in determining the Weighted Average Capitalization Rate
with respect to a Project acquired from and after the date hereof and located in
the County of New York, the Capitalization Rates of only the other Projects
located in the County of New York, exclusive of the Capitalization Rate with
respect to the Project commonly known as Tower 45, shall be averaged, but in no
event shall the same be less than 9.5%.
1.2. Computation of Time Periods. In this Agreement, in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed. Any
period determined hereunder by reference to a month or months or year or years
shall end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided that if such period commences on the last day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month during which such period is to end),
such period shall, unless otherwise expressly required by the other provisions
of this Agreement, end on the last day of the calendar month.
1.3. Accounting Terms. Subject to Section 14.4, for purposes of this
----------------
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4. Other Terms. All other terms contained in this Agreement shall,
-----------
unless the context indicates otherwise, have the meanings assigned to such terms
by the Uniform Commercial Code to the extent the same are defined therein.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans.
-----
(a) Availability. Subject to the terms and conditions set forth in
------------
this Agreement, each Lender hereby sever ally and not jointly agrees to make
loans, in Dollars (each individually, a "Loan" and, collectively, the "Loans")
to the Borrower on the Funding Date, in an amount not to exceed such Lender's
Pro Rata Share of the Maximum Credit Amount at such time. The aggregate amount
of Loans to be made hereunder with respect to the Borrower shall not exceed One
Hundred Thirty Million Dollars ($130,000,000). All Loans must be borrowed on the
Funding Date and Commitments not so funded shall be deemed cancelled. All Loans
comprising the same Borrowing under this Agreement shall be made by the Lenders
simultaneously and proportionately to their then respective Pro Rata Shares, it
being understood that no Lender shall be responsible for any failure by any
other Lender to perform its obligation to make a Loan hereunder nor shall the
Commitment of any Lender be increased or decreased as a result of any such
failure. Subject to the provisions of this Agreement, the Borrower may repay any
outstanding Loan on any day which is a Business Day and any amounts so repaid
may not be reborrowed.
(b) Notice of Borrowing. When the Borrower desires to borrow under
-------------------
this Section 2.1, the Borrower shall deliver to the Administrative Agent a
Notice of Borrowing, signed by it (x) no later than 12:00 noon (New York time)
on the Business Day immediately preceding the proposed Funding Date, in the
case of a Borrowing of Base Rate Loans and (y) no later than 11:00 a.m. (New
York time) at least three (3) Business Days in advance of the proposed Funding
Date, in the case of a Borrowing of Eurodollar Rate Loans. Such Notice of
Borrowing shall specify (i) the proposed Funding Date (which shall be a Business
Day), (ii) the amount of the proposed Borrowing, (iii) the Maximum Credit Amount
as of the date of such Notice of Borrowing, (iv) whether the proposed Borrowing
will be of Base Rate Loans or Eurodollar Rate Loans, (v) in the case of
Eurodollar Rate Loans, the requested Eurodollar Interest Period, (vi)
instructions for the disbursement of the proceeds of the proposed Borrowing,
(vii) an Officer's Certificate of the Borrower with respect to compliance with
(including calculation thereof) Sections 10.11(a) and 10.11(e), and (viii) that
no Event of Default shall have occurred and be outstanding. Any Notice of
Borrowing (or telephonic notice in lieu thereof) given pursuant to this Section
2.1(b) shall be irrevocable.
(c) Making of Loans. (i) Promptly after receipt of a Notice of
---------------
Borrowing under Section 2.1(b), the Administrative Agent shall notify each
Lender by facsimile trans mission, or other similar form of transmission, of the
pro posed Borrowing (which notice to the Lenders, in the case of a Borrowing of
Eurodollar Rate Loans, shall be at least three (3) Business Days in advance of
the proposed Funding Date for such Loans). Each Lender shall deposit an amount
equal to its Pro Rata Share of the Borrowing requested by the Borrower with the
Administrative Agent at its office in New York, New York, in immediately
available funds, not later than 12:00 noon. (New York time) on the Funding Date.
Subject to the fulfillment of the conditions precedent set forth in Section
6.1, the Administrative Agent shall make the proceeds of such amounts received
by it available to the Borrower at the Administrative Agent's office in New
York, New York on the Funding Date (or on the date received if later than the
Funding Date) and shall disburse such proceeds in accordance with the Borrower's
disbursement instructions set forth in the applicable Notice of Borrowing. The
failure of any Lender to deposit the amount described above with the
Administrative Agent on the Funding Date shall not relieve any other Lender of
its obligations hereunder to make its Loan on the Funding Date. In the event the
conditions precedent set forth in Section 6.1 are not fulfilled as of the
proposed Funding Date for any Borrowing, the Administrative Agent shall promptly
return, by wire transfer of immediately available funds, the amount deposited by
each Lender to such Lender.
(ii) Unless the Administrative Agent shall have been notified by any
Lender on the Business Day immediately preceding the Funding Date in respect of
any Borrowing that such Lender does not intend to fund its Loan requested to be
made on the Funding Date, the Administrative Agent may assume that such Lender
has funded its Loan and is depositing the proceeds thereof with the
Administrative Agent on the Funding Date, and the Administrative Agent in its
sole discretion may, but shall not be obligated to, disburse a corresponding
amount to the Borrower on the Funding Date. If the Loan proceeds corresponding
to that amount are advanced to the Borrower by the Administrative Agent but are
not in fact deposited with the Administrative Agent by such Lender on or prior
to the Funding Date, such Lender agrees to pay, and in addition the Borrower as
the case may be, agrees to repay, to the Administrative Agent forthwith on
demand such corresponding amount, together with interest thereon, for each day
from the date such amount is disbursed to the Borrower until the date such
amount is paid or repaid to the Administrative Agent, at the interest rate
applicable to such Borrowing. If such Lender shall pay to the Administrative
Agent the corresponding amount, the amount so paid shall constitute such
Lender's Loan, and if both such Lender and the Borrower shall pay and repay such
corresponding amount, the Administrative Agent shall promptly pay to the
Borrower such corresponding amount. This Section 2.1(c)(ii) does not relieve any
Lender of its obligation to make its Loan on the Funding Date.
2.2. Intentionally Omitted.
---------------------
2.3. Use of Proceeds of Loans. The proceeds of the Loans hereunder
------------------------
shall be used for the sole purpose of consummating the Mergers.
2.4. Termination Date. The Commitments shall terminate on the earlier
----------------
of (x) May __, 1999 and (y) the Funding Date. All outstanding Credit Obligations
shall be paid in full on the Termination Date.
2.5. Maximum Credit Facility. Notwithstanding any thing in this
-----------------------
Agreement to the contrary, in no event shall the aggregate principal Credit
Obligations exceed the Maximum Credit Amount.
2.6. Authorized Agents. On the Closing Date and from time to time
-----------------
thereafter, the Borrower shall deliver to the Administrative Agent an Officer's
Certificate setting forth the names of the employees and agents authorized to
request Loans and to request a conversion/continuation of any Loans and
containing a specimen signature of each such employee or agent. The employees
and agents so authorized shall also be authorized to act for the Borrower in
respect of all other matters relating to the Loan Documents. The Administrative
Agent, the Arranger, and the Lenders shall be entitled to rely conclusively on
such employee's or agent's authority to request such Loan or such
conversion/continuation until the Administrative Agent and the Arranger receive
written notice to the contrary. None of the Administrative Agent or the Arranger
shall have any duty to verify the authenticity of the signature appearing on any
written Notice of Borrowing or Notice of Conversion/Continuation or any other
document, and, with respect to an oral request for such a Loan or such
conversion/continuation, the Administrative Agent and the Arranger shall have no
duty to verify the identity of any person representing himself or herself as one
of the employees or agents authorized to make such request or otherwise to act
on behalf of the Borrower. None of the Administrative Agent, the Arranger or the
Lenders shall incur any liability to the Borrower or any other Person in acting
upon any telephonic or facsimile notice referred to above which the
Administrative Agent or the Arranger believes to have been given by a person
duly authorized to act on behalf of the Borrower and the Borrower hereby
indemnifies and holds harmless the Administrative Agent, the Arranger and each
other Lender from any loss or expense the Administrative Agent, the Arranger or
the Lenders might incur in acting in good faith as provided in this Section 2.6;
provided, however, that Borrower shall not indemnify the applicable party for
acts resulting from its own gross negligence or willful misconduct.
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Commitments.
--------------------------------------
(a) Voluntary Prepayments. The Borrower may, at any time and from time
---------------------
to time, prepay the Loans, in part or in their entirety, subject to the
following limitations. The Borrower shall give at least five (5) Business Days'
prior written notice to the Administrative Agent (which the Administrative
Agent shall promptly transmit to each Lender) of any prepayment in the entirety
to be made prior to the occurrence of an Event of Default, which notice of
prepayment shall specify the date (which shall be a Business Day) of prepayment.
When notice of prepayment is delivered as provided herein, the outstanding
principal amount of the Loans on the prepayment date specified in the notice
shall become due and payable on such prepayment date. Each voluntary partial
prepayment of the Loans shall be in a minimum amount of $1,000,000 and in
integral multiples of $500,000 in excess of that amount (or such lesser amount
in the event the unpaid principal amount of any Loan is less than such minimum
prepayment amount). Eurodollar Rate Loans may be prepaid in part or in their
entirety only upon payment of the amounts described in Section 5.2(f). Amounts
prepaid pursuant to this Section 4.1(a) may not be reborrowed.
(b) Voluntary Reductions In Commitments. The Borrower may, upon at
-----------------------------------
least five (5) days' prior written notice to the Administrative Agent (which the
Administrative Agent shall promptly transmit to each Lender), at any time and
from time to time, terminate in whole or permanently reduce in part the
Commitments, provided that (i) the Borrower shall have made whatever payment may
be required to reduce the Credit Obligations to an amount less than or equal to
the Commitments as reduced, which amount shall become due and payable on the
date specified in such notice and (ii) in the case of a reduction, the minimum
Commitments that shall remain outstanding shall be $10,000,000. Any partial
reduction of the Commitments shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $1,000,000 in excess of that amount, and
shall reduce the Commitment of each Lender proportionately in accordance with
its Pro Rata Share. Any notice of termination or reduction given to the
Administrative Agent under this Section 4.1(b) shall specify the date (which
shall be a Business Day) of such termination or reduction and, with respect to a
partial reduction, the aggregate principal amount thereof.
(c) No Penalty. The prepayments and payments in respect of reductions
----------
and terminations described in clauses (a) and (b) of this Section 4.1 may be
made without premium or penalty (except as provided in Section 5.2(f)).
(d) Mandatory Prepayment. If at any time during the term of this
--------------------
Agreement, the Borrower or the Company shall receive Net Offering Proceeds or
Net Cash Proceeds then, simultaneously therewith, the Borrower or the Company,
as the case may be, shall repay the Loans in an amount equal to the lesser of
(x) the aggregate Net Offering Proceeds and/or Net Cash Proceeds received by the
Company from and after the date hereof and (y) the outstanding principal balance
of the Loans. If at any time from and after the Closing Date: (i) the Company
or the Borrower merges or consolidates with another Person and the Company or
Borrower, as the case may be, is not the surviving entity (other than a merger
or consolidation of the Company or the Borrower with Reckson or any other Person
so long as, in the case of a merger or consolidation of the Company, Reckson is
the surviving entity and retains not less than a 66 2/3% interest in Borrower;
(ii) any interest in the Borrower or the Company is sold to any Person, other
than to Reckson or the Company or in connection with the grant of OP Units (x)
in partial payment of an acquisition of a Property or (y) the proceeds of which
are used to purchase a Property; (iii) the Management Company ceases to provide
property management and leasing services to all of the Projects located in the
State of New York or to provide asset management services for all of the
Projects located outside of the State of New York; or (iv) the Revolving Credit
Agreement is terminated for any reason (the date any such event shall occur
being the "Prepayment Date"), the Borrower shall be required to prepay the Loans
in their entirety as if the Prepayment Date were the Termination Date and, the
Credit Commitment thereupon shall be terminated. The Borrower shall immediately
make such prepayment together with interest accrued to the date of the
prepayment on the principal amount prepaid. In connection with the prepayment of
any Loan prior to the maturity thereof, the Borrower shall also pay any
applicable expenses pursuant to Section 5.2(f). Each such prepayment shall be
applied to prepay ratably the Loans of the Lenders. Amounts prepaid pursuant to
this Section 4.1(d) may not be reborrowed.
4.2. Payments.
--------
(a) Manner and Time of Payment. All payments of principal of and
--------------------------
interest on the Loans and other Obligations (including, without limitation, fees
and expenses) which are payable to the Administrative Agent or any other Lender
shall be made without condition or reservation of right, in immediately
available funds, delivered to the Administrative Agent not later than 12:00 noon
(New York time) on the date and at the place due, to such account of the
Administrative Agent as it may designate, for the account of the Administrative
Agent or such other Lender, as the case may be; and funds received by the
Administrative Agent, including, without limitation, funds in respect of any
Loans to be made on that date, not later than 12:00 noon (New York time) on any
given Business Day shall be credited against payment to be made that day and
funds received by the Administrative Agent after that time shall be deemed to
have been paid on the next succeeding Business Day. Payments actually received
by the Administrative Agent for the account of the Lenders, or any of them,
shall be paid to them by the Administrative Agent promptly after receipt
thereof.
(b) Apportionment of Payments. (i) Subject to the provisions of
-------------------------
Section 4.2(b)(v), all payments of principal and interest in respect of
outstanding Loans, all payments of fees and all other payments in respect of any
other Obligations, shall be allocated among such of the Lenders as are entitled
thereto, in proportion to their respective Pro Rata Shares or otherwise as
provided herein. Subject to the provisions of Section 4.2(b)(ii), all such
payments and any other amounts received by the Administrative Agent from or for
the benefit of the Borrower shall be applied in the following order:
(A) to pay principal of and interest on any portion of the Loans which
the Administrative Agent may have advanced on behalf of any Lender other
than UBS for which the Administrative Agent has not then been reimbursed by
such Lender or the Borrower, as the case may be,
(B) to pay all other Obligations then due and pay able, and
(C) as the Borrower so designates.
Unless otherwise designated by the Borrower, all principal payments in respect
of its Loans shall be applied first, to repay its outstanding Base Rate Loans
not secured by the Existing 810 Seventh Avenue Loan, second, to repay its out
standing Eurodollar Rate Loans not secured by the Existing 810 Seventh Avenue
Loan, third, to repay any other outstanding Base Rate Loans, and then to repay
any other outstanding Eurodollar Rate Loans with those Eurodollar Rate Loans
which have earlier expiring Eurodollar Interest Periods being repaid prior to
those which have later expiring Eurodollar Interest Periods.
(ii) After the occurrence of an Event of Default and while the same
is continuing which results in an acceleration of the Obligations in accordance
with Section 11.2, the Administrative Agent shall apply all payments in respect
of any Obligations in the following order:
(A) first, to pay principal of and interest on any portion of the
Loans which the Administrative Agent may have advanced on behalf of any
Lender other than UBS for which the Administrative Agent has not then been
reimbursed by such Lender or the Borrower, as the case may be;
(B) second, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent;
(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Lenders;
(D) fourth, to pay interest due in respect of Loans not secured by the
Existing 810 Seventh Avenue Loan;
(E) fifth, to the ratable payment or prepayment of principal
outstanding on Loans not secured by the Existing 810 Seventh Avenue Loan;
(F) sixth, to pay interest due in respect of Loans secured by the
Existing 810 Seventh Avenue Loan;
(G) seventh, to the ratable payment or prepayment of principal
outstanding on Loans not secured by the Existing 810 Seventh Avenue Loan;
and
(H) eighth, to the ratable payment of all other Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent and the other Lenders as among
themselves. The order of priority set forth in clauses (A) and (B) of this
Section 4.2(b)(ii) may be changed only with the prior written consent of the
Administrative Agent.
(iii) The Administrative Agent, in its sole discretion subject only
to the terms of this Section 4.2(b)(iii), may pay from the proceeds of Loans
made to the Borrower hereunder, whether made following a request by the Borrower
pursuant to Section 2.1 or a deemed request as provided in this Section
4.2(b)(iii), all amounts payable by the Borrower hereunder, including, without
limitation, amounts payable with respect to payments of principal, interest, and
fees. The Borrower hereby irrevocably authorize the Lenders to make Loans, which
Loans shall be Base Rate Loans, in each case, upon notice from the
Administrative Agent as described in the following sentence for the purpose of
paying principal, interest, and fees due from the Borrower, and agrees that all
such Loans so made shall be deemed to have been requested by it pursuant to
Section 2.1 as of the date of the aforementioned notice. The Administrative
Agent shall request Loans on behalf of the Borrower as described in the
preceding sentence by notifying the Lenders by facsimile transmission or other
similar form of transmission (which notice the Administrative Agent shall
thereafter promptly transmit to the Borrower), of the amount and Funding Date of
the proposed Borrowing and that such Borrowing is being requested on the
Borrower's behalf pursuant to this Section 4.2(b)(iii). On the proposed Funding
Date, the Lenders shall make the requested Loans in accordance with the
procedures and subject to the conditions specified in Section 2.1.
(iv) Subject to Section 4.2(b)(v), the Administrative Agent shall
promptly distribute to each Lender at its primary address set forth on the
appropriate signature page hereof or the signature page to the Assignment and
Acceptance by which it became a Lender, or at such other address as a Lender may
request in writing, such funds as such Person may be entitled to receive,
subject to the provisions of Article XII; provided that the Administrative Agent
shall under no circumstances be bound to inquire into or determine the validity,
scope or priority of any interest or entitlement of any Lender and may suspend
all payments or seek appropriate relief (including, without limitation,
instructions from the Requisite Lenders or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata Share of
any Loan requested by the Borrower on its behalf which such Lender is obligated
to fund under the terms of this Agreement (the funded portion of such Loan being
hereinafter referred to as a "Non Pro Rata Loan"), until such Lender's cure of
such failure, the proceeds of all amounts thereafter repaid to the
Administrative Agent by the Borrower and otherwise required to be applied to
such Lender's share of all other Obligations pursuant to the terms of this
Agreement shall be advanced to the Borrower by the Administrative Agent on
behalf of such Lender to cure, in full or in part, such failure by such Lender,
but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. Notwithstanding anything in this
Agreement to the contrary:
(A) the foregoing provisions of this Section 4.2(b)(v) shall apply
only with respect to the proceeds of payments of Obligations and shall not
affect the conversion or continuation of Loans pursuant to Section
5.1(c);
(B) a Lender shall be deemed to have cured its failure to fund its Pro
Rata Share of any Loan at such time as an amount equal to such Lender's
original Pro Rata Share of the requested principal portion of such Loan
is fully funded to the Borrower, whether made by such Lender itself or by
operation of the terms of this Section 4.2(b)(v), and whether or not the
Non Pro Rata Loan with respect thereto has been repaid, converted or
continued;
(C) amounts advanced to the Borrower to cure, in full or in part, any
such Lender's failure to fund its Pro Rata Share of any Loan ("Cure Loans")
shall bear interest at the Base Rate in effect from time to time, and for
all other purposes of this Agreement shall be treated as if they were Base
Rate Loans; and
(D) regardless of whether or not an Event of Default has occurred or
is continuing, and notwithstanding the instructions of the Borrower as to
its desired application, all repayments of principal which, in accordance
with the other terms of this Section 4.2, would be applied to its
outstanding Base Rate Loans shall be applied first, ratably to its Base
Rate Loans constituting Non Pro Rata Loans, second, ratably to its Base
Rate Loans other than those constituting Non Pro Rata Loans or Cure Loans
and, third, ratably to its Base Rate Loans constituting Cure Loans.
(c) Payments on Non-Business Days. Whenever any payment to be made by
-----------------------------
the Borrower hereunder or under the Notes is stated to be due on a day which is
not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, as set forth in Section 5.2(b)(iv), the next preceding
Business Day).
4.3. Promise to Repay; Evidence of Indebtedness.
------------------------------------------
(a) Promise to Repay. The Borrower hereby agrees to pay when due the
----------------
principal amount of each Loan which is made to it and, to the extent not paid
when due (after giving effect to any grace period as more particularly set forth
in Section 11.1(a)) and further agrees to pay all unpaid interest accrued
thereon, in accordance with the terms of this Agreement and the Notes. The
Borrower shall execute and deliver to each Lender on the Closing Date, a
promissory note, in the form of Exhibit B attached hereto with blanks
appropriately completed, evidencing the Loans and thereafter shall execute and
deliver such other promissory notes as are necessary to evidence the Loans made
to it owing to the Lenders after giving effect to any assignment thereof
pursuant to Section 14.1, all in the form of Exhibit B attached hereto with
blanks appropriately completed (all such promissory notes and all amendments
thereto, replacements thereof and substitutions therefor being collectively
referred to as the "Notes"; and "Note" means any one of the Notes).
(b) Loan Account. Each Lender shall maintain in accordance with its
------------
usual practice an account or accounts (a "Loan Account") evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan owing to
such Lender from time to time, including the amount of principal and interest
payable and paid to such Lender from time to time hereunder and under the Notes.
(c) Control Account. The Register maintained by the Administrative
---------------
Agent pursuant to Section 14.1(c) shall include a control account, and a
subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the type of
Loan comprising such Borrowing and any Eurodollar Interest Period applicable
thereto, (ii) the effective date and amount of each Assignment and Acceptance
delivered to and accepted by it and the parties thereto, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder or under the Notes and (iv) the amount of any
sum received by the Administrative Agent from the Borrower hereunder and each
Lender's share thereof.
(d) Entries Binding. The entries made in the Register and each Loan
---------------
Account shall be conclusive and binding for all purposes, absent manifest error.
(e) No Recourse. Notwithstanding anything contained in this
-----------
Agreement, any Note, or the Guaranty to the contrary, it is expressly understood
and agreed that nothing herein or therein shall be construed as creating any
liability on any Limited Partner, any member of the Company, or any partner,
officer, shareholder, director or employee of any Limited Partner or any
officer, trustee, member, director or employee of the Borrower or any Guarantor,
to pay any of the Obligations other than liability arising under applicable law
from or in connection with (i) its own fraud or (ii) the misappropriation or
misapplication by it of proceeds of the Loans; but nothing contained in this
Section 4.3(e) shall be construed to prevent the exercise of any remedy allowed
to the Administrative Agent or the Lenders by law or by the terms of this
Agreement or the other Loan Documents which does not relate to or result in such
an obligation by any Limited Partner or member of the Company.
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations.
-------------------------------------------
(a) Rate of Interest. All Loans and the outstanding principal balance
----------------
of all other Obligations shall bear interest on the unpaid principal amount
thereof from the date such Loans are made and such other Obligations are due and
payable until paid in full, except as otherwise provided in Section 5.1(d), as
follows:
(i) If a Base Rate Loan or such other Obligation, at a rate per annum
equal to the sum of (A) the Base Rate, as in effect from time to time as
interest accrues, plus (B) the then Applicable Mar gin for Base Rate Loans;
and
(ii) If a Eurodollar Rate Loan, at a rate per annum equal to the sum
of (A) the Eurodollar Rate determined for the applicable Eurodollar
Interest Period, plus (B) the then Applicable Margin for Eurodollar Loans.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrower at the time a Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Administrative
Agent; provided, however, the Borrower may not select the Eurodollar Rate as
the applicable basis for determining the rate of interest on such a Loan if at
the time of such selection an Event of Default has occurred and is continuing.
If on any day any Loan is outstanding with respect to which notice has not been
timely delivered to the Administrative Agent in accordance with the terms of
this Agreement specifying the basis for determining the rate of interest on that
day, then for that day interest on that Loan shall be determined by reference to
the Base Rate.
(b) Interest Payments. (i) Interest accrued on each Loan, whether a
-----------------
Base Rate Loan or a Eurodollar Loan shall be calculated on the last day of each
calendar month and shall be payable in arrears (A) on the first day of each
calendar month, commencing on the first such day following the making of such
Loan, (B) upon the payment or prepayment thereof in full or in part, and (C) if
not theretofore paid in full, at maturity (whether by acceleration or otherwise)
of such Loan.
(ii) Interest accrued on the principal balance of all other
Obligations shall be calculated on the last day of each calendar month and shall
be payable in arrears (A) on the first day of each calendar month, commencing on
the first such day following the incurrence of such Obligation, (B) upon
repayment thereof in full or in part, and (C) if not thereto fore paid in full,
at the time such other Obligation becomes due and payable (whether by
acceleration or otherwise).
(c) Conversion or Continuation. (i) The Borrower shall have the option
--------------------------
(A) to convert at any time all or any part of outstanding Base Rate Loans to
Eurodollar Rate Loans; (B) to convert all or any part of outstanding Eurodollar
Rate Loans having Eurodollar Interest Periods which expire on the same date to
Base Rate Loans on such expiration date; or (C) to continue all or any part of
outstanding Eurodollar Rate Loans having Eurodollar Interest Periods which
expire on the same date as Eurodollar Rate Loans, and the succeeding Eurodollar
Interest Period of such continued Loans shall commence on such expiration date;
provided, however, no such outstanding Loan may be continued as, or be
converted into, a Eurodollar Rate Loan (i) if the continuation of, or the
conversion into, would violate any of the provisions of Section 5.2 or (ii) if
an Event of Default has occurred and is continuing. Any conversion into or
continuation of Eurodollar Rate Loans under this Section 5.1(c) shall be in a
minimum amount of $3,000,000 and in integral multiples of $500,000 in excess of
that amount, except in the case of a conversion into or a continuation of an
entire Borrowing of Non Pro Rata Loans.
(ii) To convert or continue a Loan under Section 5.1(c)(i), the
Borrower shall deliver a Notice of Conversion/ Continuation to the
Administrative Agent no later than 11:00 a.m. (New York time) at least three (3)
Business Days in advance of the proposed conversion/continuation date. A Notice
of Conversion/Continuation shall specify (A) the pro posed
conversion/continuation date (which shall be a Business Day), (B) the principal
amount of the Loan to be converted/continued, (C) whether such Loan shall be
converted and/or continued and (D) in the case of a conversion to, or
continuation of a Eurodollar Rate Loan, the requested Eurodollar Interest
Period. Promptly after receipt of a Notice of Conversion/Continuation under this
Section 5.1(c)(ii), the Administrative Agent shall notify each Lender by
facsimile transmission, or other similar form of transmission, of the proposed
conversion/continuation. Any Notice of Conversion/Continuation for conversion
to, or continuation of, a Loan (or telephonic notice in lieu thereof) given
pursuant to this Section 5.1(c)(ii) shall be irrevocable, and the Borrower shall
be bound to convert or continue in accordance therewith. In the event no Notice
of Conversion/Continuation is delivered as and when specified in this Section
5.1(c)(ii) with respect to outstanding Eurodollar Rate Loans, upon the
expiration of the Eurodollar Interest Period applicable thereto, such Loans
shall automatically be converted to a Base Rate Loan.
(d) Default Interest. Notwithstanding the rates of interest specified
----------------
in Section 5.1(a) or elsewhere in this Agreement, effective immediately upon the
occurrence of an Event of Default, and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and other
Obligations shall bear interest at a rate equal to (A) in the case of any
Eurodollar Rate Loans out standing as of the date of occurrence of any Event of
Default, the sum of (x) the applicable Eurodollar Rate, plus (y) six percent
(6.0%) per annum, and (B) in the case of any Base Rate Loan (including any
Eurodollar Loan that is converted to a Base Rate Loan at maturity) the sum of
(x) the Base Rate, as in effect from time to time as interest accrues, plus (y)
five percent (5.0%) per annum.
(e) Computation of Interest. Interest on all Obligations shall be
-----------------------
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the date of the making of the Loan or the first day of a Eurodollar
Interest Period, as the case may be, shall be included and the date of payment
or the expiration date of a Eurodollar Interest Period, as the case may be,
shall be excluded; provided, however, if a Loan is repaid on the same day on
which it is made, one (1) day's interest shall be paid on such Loan.
(f) Eurodollar Rate Information. Upon the request of the Borrower, the
---------------------------
Administrative Agent shall promptly provide to the Borrower such information
with respect to the applicable Eurodollar Rate as may be so requested.
5.2. Special Provisions Governing Eurodollar Rate Loans.
--------------------------------------------------
(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan shall
-------------------------------
be in a minimum principal amount of $3,000,000 and in integral multiples of
$500,000 in excess of that amount.
(b) Determination of Eurodollar Interest Period. By giving notice as
-------------------------------------------
set forth in Section 2.1(b) (with respect to a Borrowing of Eurodollar Rate
Loans), or Section 5.1(c) (with respect to a conversion into or continuation of
Eurodollar Rate Loans), the Borrower shall have the option, subject to the other
provisions of this Section 5.2, to select an interest period (each, a
"Eurodollar Interest Period") to apply to the Loans described in such notice,
subject to the following provisions:
(i) The Borrower may only select, as to a particular Borrowing of
Eurodollar Rate Loans, a Eurodollar Interest Period of one month in
duration;
(ii) Intentionally Omitted;
(iii) In the case of immediately successive Eurodollar Interest
Periods applicable to a Borrowing of Eurodollar Rate Loans, each
successive Eurodollar Interest Period shall commence on the day on which
the next preceding Eurodollar Interest Period expires;
(iv) If any Eurodollar Interest Period would otherwise expire on a day
which is not a Business Day, such Eurodollar Interest Period shall be ex
tended to expire on the next succeeding Business Day if the next succeeding
Business Day occurs in the same calendar month, and if there will be no
succeeding Business Day in such calendar month, the Eurodollar Interest
Period shall expire on the immediately preceding Business Day;
(v) The Borrower may not select a Eurodollar Interest Period as to any
Loan if such Eurodollar Interest Period terminates later than the
Termination Date; and
(vi) The Borrower may not select a Eurodollar Interest Period with
respect to any portion of principal of a Loan which extends beyond a date
on which the Borrower is required to make a scheduled payment of such
portion of principal of which the Borrower is aware on the date of such
request, in the case of a payment pursuant to Section 4.1(d) hereof.
(c) Determination of Eurodollar Interest Rate. As soon as practicable
-----------------------------------------
on the second Business Day prior to the first day of each Eurodollar Interest
Period (the "Eurodollar Interest Rate Determination Date"), the Administrative
Agent shall determine (pursuant to the procedures set forth in the definition of
"Eurodollar Rate") the interest rate which shall apply to the Eurodollar Rate
Loans for which an interest rate is then being determined for the applicable
Eurodollar Interest Period and shall promptly give notice thereof (in writing
or by telephone or by facsimile confirmed in writing) to the Borrower and to
each Lender. The Administrative Agent's determination shall be presumed to be
correct, absent manifest error, and shall be binding upon the Borrower.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In the event
---------------------------------------------------
that at least one (1) Business Day before the Eurodollar Interest Rate
Determination Date:
(i) the Administrative Agent is advised by the Reference Bank that
deposits in Dollars (in the applicable amounts) are not being offered by
the Reference Bank in the London interbank market for such Eurodollar
Interest Period; or
(ii) the Administrative Agent determines that adequate and fair means
do not exist for ascertaining the applicable interest rates by reference
to which the Eurodollar Rate then being determined is to be fixed; or
(iii) the Requisite Lenders advise the Administrative Agent that the
Eurodollar Rate for Eurodollar Rate Loans comprising such Borrowing will
not adequately reflect the cost to such Requisite Lenders of obtaining
funds in Dollars in the London interbank market in the amount substantially
equal to such Lenders' Eurodollar Rate Loans in Dollars and for a period
equal to such Eurodollar Interest Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower, whereupon (until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist) the right of
the Borrower to elect to have Loans bear interest based upon the Eurodollar Rate
shall be suspended and each outstanding Eurodollar Rate Loan shall be converted
into a Base Rate Loan on the last day of the then current Eurodollar Interest
Period therefor, notwithstanding any prior election by the Borrower to the
contrary.
(e) Illegality. (i) If at any time any Lender determines (which
----------
determination shall, absent manifest error, be final and conclusive and binding
upon all parties) that the making or continuation of any Eurodollar Rate Loan
has become unlawful or impermissible by compliance by that Lender with any law,
governmental rule, regulation or order of any Govern mental Authority (whether
or not having the force of law and whether or not failure to comply therewith
would be unlawful or would result in costs or penalties), then, and in any such
event, such Lender may give notice of that determination, in writing, to the
Borrower and the Administrative Agent, and the Administrative Agent shall
promptly transmit the notice to each other Lender.
(ii) When notice is given by a Lender under Section 5.2(e)(i), (A) the
Borrower's right to request from such Lender and such Lender's obligation, if
any, to make Eurodollar Rate Loans to the Borrower shall be immediately
suspended, and such Lender shall make a Base Rate Loan as part of any requested
Borrowing of Eurodollar Rate Loans and (B) if the affected Eurodollar Rate Loan
or Loans are then outstanding, the Borrower shall immediately, or if permitted
by applicable law, no later than the date permitted thereby, upon at least one
(1) Business Day's prior written notice to the Administrative Agent and the
affected Lender, convert each such Loan into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under Section
5.2(e)(i) such Lender determines that it may lawfully make Eurodollar Rate
Loans, such Lender shall promptly give notice of that determination, in writing,
to the Borrower and the Administrative Agent, and the Administrative Agent shall
promptly transmit the notice to each other Lender. The Borrower's right to
request, and such Lender's obligation, if any, to make Eurodollar Rate Loans to
the Borrower shall thereupon be restored.
(f) Compensation. In addition to all amounts required to be paid by
------------
the Borrower, as the case may be, pursuant to Section 5.1 and Article XIII, the
Borrower shall compensate each Lender, upon demand, for all losses, expenses and
liabilities (including, without limitation, any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund or maintain such Lender's Eurodollar Rate Loans to the
Borrower but excluding any loss of Applicable Margin on the relevant Loans)
which that Lender may sustain (i) if for any reason a Borrowing, conversion into
or continuation of Eurodollar Rate Loans does not occur on a date specified
therefor in a Notice of Borrowing or a Notice of Conversion/Continuation given
by the Borrower or in a telephonic request by it for borrowing or
conversion/continuation or a successive Eurodollar Interest Period does not
commence after notice therefor is given pursuant to Section 5.1(c), other than
pursuant to Sections 5.2(d) or (e), or (ii) if for any reason any Eurodollar
Rate Loan is prepaid (other than pursuant to Section 4.1(d) or Section 5.2(d) or
(e)) on a date which is not the last day of the applicable Eurodollar Interest
Period or (iii) as a consequence of any failure by the Borrower to repay a
Eurodollar Rate Loan when required by the terms of this Agreement. The Lender
making demand for such compensation shall deliver to the Borrower concurrently
with such demand a written statement in reasonable detail as to such losses,
expenses and liabilities, and this statement shall be conclusive as to the
amount of compensation due to that Lender, absent manifest error.
(g) Booking of Eurodollar Rate Loans. Any Lender may make, carry or
--------------------------------
transfer Eurodollar Rate Loans at, to, or for the account of, its Eurodollar
Lending Office or Eurodollar Affiliate or its other offices or Affiliates. No
Lender shall be entitled, however, to receive any greater amount under Sections
4.2 or 5.2(f) or Article XIII as a result of the transfer of any such Eurodollar
Rate Loan to any office (other than such Eurodollar Lending Office) or any
Affiliate (other than such Eurodollar Affiliate) than such Lender would have
been entitled to receive immediately prior thereto, unless (i) the transfer
occurred at a time when circumstances giving rise to the claim for such greater
amount did not exist and (ii) such claim would have arisen even if such transfer
had not occurred.
(h) Affiliates Not Obligated. No Eurodollar Affiliate or other
------------------------
Affiliate of any Lender shall be deemed a party to this Agreement or shall have
any liability or obligation under this Agreement.
(i) Adjusted Eurodollar Rate. Any failure by any Lender to take into
------------------------
account the Eurodollar Reserve Percentage when calculating interest due on
Eurodollar Rate Loans shall not constitute, whether by course of dealing or
otherwise, a waiver by such Lender of its right to collect such amount for
any future period.
(j) Application of Mandatory Prepayments. The principal amount of any
------------------------------------
mandatory prepayment pursuant to Section 4.1(d) hereof, shall be applied, first,
to the out standing Base Rate Loans and then, to the outstanding Eurodollar
Rate Loans. The Administrative Agent shall hold such principal amounts allocated
for prepayment of Eurodollar Rate Loans until the end of the applicable
Eurodollar Interest Period(s) and, during the interim period, shall invest said
sums in Cash Equivalents. Interest earned thereon shall be forwarded to the
Borrower upon the payment of the Eurodollar Rate Loans at the end of said
Eurodollar Interest Period.
ARTICLE VI
CONDITIONS TO LOANS
6.1. Conditions Precedent to the Loans. The obligation of each Lender
---------------------------------
on the Funding Date to make any Loan requested to be made by it, shall be
subject to the satisfaction of all of the following conditions precedent:
(a) Documents. The Administrative Agent shall have received on or
---------
before the Funding Date all of the following:
(i) this Agreement, the Notes, the Guaranty, and, to the extent not
otherwise specifically referenced in this Section 6.1(a), all other Loan
Documents and agreements, documents and instruments described in the List
of Closing Documents attached hereto as EXHIBIT E and made a part hereof,
each duly executed, and in form and substance satisfactory to the Agents;
without limiting the foregoing, the Borrower hereby directs its counsel,
Brown & Wood LLP to prepare and deliver to the Agents, the Lenders, and
Skadden, Arps, Slate, Meagher & Flom LLP the legal opinions referred to in
such List of Closing Documents; and
(ii) such additional documentation as the Agents may reasonably
request.
(b) No Legal Impediments. No law, regulation, order, judgment or
--------------------
decree of any Governmental Authority shall, and the Administrative Agent shall
not have received any notice that litigation is pending or threatened which is
likely to (i) enjoin, prohibit or restrain the making of the Loans on the
Funding Date or (ii) impose or result in the imposition of a Material Adverse
Effect.
(c) No Change in Condition. No change in the business, assets,
----------------------
management, operations, financial condition or prospects of the Borrower or any
of its Properties shall have occurred since December 31, 1998 which change, in
the judgment of the Administrative Agent, will have a Material Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the
------------------------------
Arranger and the Lenders, since December 31, 1998, neither the Borrower nor the
Company shall have (i) entered into any (as determined in good faith by the
Administrative Agent) commitment or transaction, including, without limitation,
transactions for borrowings and capital expenditures, which are not in the
ordinary course of the Borrower's business, (ii) declared or paid any dividends
or other distributions other than in the ordinary course of business, (iii)
established compensation or employee benefit plans, or (iv) redeemed or issued
any equity Securities, other than those described on SCHEDULE 6.1(D) hereto.
(e) No Loss of Material Agreements and Licenses. Since December 31,
-------------------------------------------
1998, no agreement or license relating to the business, operations or employee
relations of the Borrower or any of its Real Properties shall have been
terminated, modified, revoked, breached or declared to be in default, the
termination, modification, revocation, breach or default under which, in the
reasonable judgment of the Administrative Agent, would result in a Material
Adverse Effect.
(f) No Market Changes. Since the Closing Date no material adverse
-----------------
change shall have occurred in the conditions in the capital markets.
(g) No Default. No Event of Default or Potential Event of Default
----------
shall have occurred and be continuing or would result from the making of the
Loans.
(h) Representations and Warranties. All of the representations and
------------------------------
warranties contained in Section 7.1 and in any of the other Loan Documents shall
be true and correct in all material respects on and as of the Funding Date.
(i) Acquisition of Tower Realty Trust. All conditions precedent to
---------------------------------
the Mergers shall have been satisfied or will be satisfied simultaneously with
the making of the Loans on the Funding Date.
(j) Take-Out Application. The Borrower shall have delivered to the
--------------------
Administrative Agent a copy of an application, executed by the Borrower, to an
institutional lender for long-term financing, the proceeds of which shall be
used to repay in part the Loans.
(k) Fees and Expenses Paid. There shall have been paid to the
----------------------
Administrative Agent, for the accounts of the Agents and the other Lenders, as
applicable, all fees due and payable on or before the Funding Date and all
expenses due and payable on or before the Funding Date, including, without
limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
(l) Compliance Certificate. Borrower shall have delivered to the
----------------------
Administrative Agent a Quarterly Compliance Certificate demonstrating compliance
with the covenants and financial ratios set forth in Sections 9.9, 9.11, 10.1,
10.3, 10.6, 10.7, 10.11 and 10.12 hereof.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower. In order to
----------------------------------------------
induce the Lenders to enter into this Agreement and to make the Loans and the
other financial accommodations to the Borrower, the Borrower hereby represents
and warrants to each Lender that the following statements are true, correct and
complete:
(a) Organization; Powers. (i) The Borrower (A) is a limited
--------------------
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware, (B) is duly qualified to do business and is in good
standing under the laws of each jurisdiction in which failure to be so qualified
and in good standing will have a Material Adverse Effect, (C) has all requisite
partnership power and authority to own, operate and encumber its Property and to
conduct its business as presently conducted and as proposed to be conducted in
connection with and following the consummation of the transactions contemplated
by this Agreement, and (D) is a partner ship for federal income tax purposes.
(ii) The Company (A) is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware,
(B) is duly authorized and qualified to do business and is in good standing
under the laws of each jurisdiction in which failure to be so qualified and in
good standing will have a Material Adverse Effect, and (C) has all requisite
corporate, limited liability company or partnership power and authority to own,
operate and encumber its Property and to conduct its business as presently
conducted.
(iii) True, correct and complete copies of the Organizational
Documents of the Borrower and the Company identified on SCHEDULE 7.1-A have been
delivered to the Administrative Agent, each of which is in full force and
effect, has not been modified or amended except to the extent set forth therein
or as otherwise permitted hereby and, to the best of the Borrower's knowledge,
there are no defaults under such Organizational Documents and no events which,
with the passage of time or giving of notice or both, would constitute a default
under such Organizational Documents. Borrower shall update SCHEDULE 7.1-A from
time to time in order to keep said Schedule true and correct.
(iv) Neither the Borrower nor the Company are "foreign persons"
within the meaning of Section 1445 of the Internal Revenue Code.
(b) Authority. (i) The Company has the requisite power and authority
---------
to execute and deliver this Agreement on behalf of the Borrower and each of the
other Loan Documents which are required to be executed on behalf of the Borrower
as required by this Agreement. The Company is the Person who has executed this
Agreement and such other Loan Documents on behalf of the Borrower and is the
sole general partner of the Borrower.
(ii) The execution, delivery and performance of each of the Loan
Documents which must be executed in connection with this Agreement by the
Borrower and to which the Borrower is a party and the consummation of the
transactions contemplated thereby are within the Borrower's partnership powers,
have been duly authorized by all necessary partnership action (and, in the case
of the Company acting on behalf of the Borrower in connection therewith, all
necessary limited liability company action of the Company) and such
authorization has not been rescinded. No other partnership or limited liability
company action or proceedings on the part of the Borrower or the Company is
necessary to consummate such transactions.
(iii) Each of the Loan Documents to which the Borrower is a party has
been duly executed and delivered on behalf of the Borrower and constitutes the
Borrower's legal, valid and binding obligation, enforceable against the Borrower
in accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general principles of equity regardless of
whether enforcement is considered in a proceeding at law or in equity. Each of
the Loan Documents to which Borrower is a party is in full force and effect and
all the terms, provisions, agreements and conditions set forth therein and
required to be performed or complied with by the Company and the Borrower on or
before the Funding Date have been performed or complied with, and no Potential
Event of Default or Event of Default exists hereunder.
(c) Subsidiaries; Ownership of Capital Stock and Partnership
--------------------------------------------------------
Interests. (i) SCHEDULE 7.1-C (A) contains a diagram indicating the corporate
- ---------
structure of the Company, the Borrower, and, after giving effect to the Mergers,
any other Person in which the Company or the Borrower holds a direct or indirect
partnership, joint venture or other equity interest indicating the nature of
such interest with respect to each Person included in such diagram; and (B)
accurately sets forth (1) the correct legal name of such Person, the
jurisdiction of its incorporation or organization and the jurisdictions in which
it is qualified to transact business as a foreign corporation, or otherwise,
and (2) the authorized, issued and outstanding shares or interests of each class
of equity Securities of the Company, the Borrower and, after giving effect to
the Mergers, the Subsidiaries of the Borrower and (3) the ownership interest of
the Borrower, the Company, and, after giving effect to the Mergers, the
Subsidiaries of the Borrower in all Minority Holdings. None of such issued and
outstanding Securities is subject to any vesting, redemption, or repurchase
agreement, and there are no warrants or options (other than Permitted Securities
Options) outstanding with respect to such Securities, except as noted on
SCHEDULE 7.1-C. The out standing Securities of the Company is duly authorized,
validly issued, fully paid and nonassessable and the outstanding Securities of
the Borrower and their Subsidiaries are duly authorized and validly issued.
Attached hereto as part of SCHEDULE 7.1-C is a true, accurate and complete copy
of the Borrower Partnership Agreement as in effect on the Closing Date and such
Partnership Agreement has not been amended, supplemented, replaced, restated or
otherwise modified in any respect since the Closing Date, except as otherwise
permitted hereby. Borrower shall update SCHEDULE 7.1-C as of the first day of
each fiscal quarter, and shall deliver the same together with the Quarterly
Compliance Certificates, to the extent required, in order to keep said Schedule
true and correct.
(ii) Except where failure would not have a Material Adverse Effect on
the Borrower, after giving effect to the Mergers, each of its Subsidiaries: (A)
is a corporation, limited liability company or partnership, as indicated on
SCHEDULE 7.1-C, duly organized or formed, validly existing and, if applicable,
in good standing under the laws of the jurisdiction of its organization, (B) is
duly qualified to do business and, if applicable, is in good standing under the
laws of each jurisdiction in which failure to be so qualified and in good
standing would have a Material Adverse Effect, and (C) has all requisite power
and authority to own, operate and encumber its Property and to conduct its
business as presently conducted and as proposed to be conducted hereafter.
(iii) None of the Subsidiaries of the Borrower which are not
Guarantors has entered into any agreement or arrangement of any kind
prohibiting the payment of dividends or other distributions to the Borrower or
the Company.
(d) No Conflict. The execution, delivery and performance of each of
-----------
the Loan Documents to which the Borrower is a party do not and will not (i)
conflict with the Organizational Documents of the Borrower or the Company, as
the case may be, (ii) conflict with, result in a breach of or constitute (with
or without notice or lapse of time or both) a default under any Requirement of
Law or material Contractual Obligation of the Borrower or the Company, as the
case may be, or require termination of any such material Contractual Obligation
which would subject the Administrative Agent or any of the other Lenders to any
liability, (iii) result in or require the creation or imposition of any Lien
whatsoever upon any of the Property or assets of the Borrower or the Company, as
the case may be, or (iv) require any approval of members of the Company (other
than such approvals that have been obtained and are in full force and effect).
(e) Governmental Consents. The execution, delivery and performance of
---------------------
each of the Loan Documents to which the Borrower is a party do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by any Governmental Authority, except filings, consents or
notices which have been made, obtained or given.
(f) Governmental Regulation. None of the Borrower or the Company is
-----------------------
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, or the Investment Company Act of
1940, or any other federal or state statute or regulation which limits its
ability to incur indebtedness as contemplated by this Agreement.
(g) Financial Position. Complete and accurate copies of the following
------------------
financial statements and materials have been delivered to the Administrative
Agent: unaudited pro forma financial statements of the Company for the fiscal
year ended December 31, 1998. All annual financial statements of the Borrower
shall be accompanied by an Officer's Certificate of the Borrower, and shall be
certified by the Chief Financial Officer of the Borrower as complying as to form
in all respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X and properly applying the pro forma adjustments to the historical
amounts, which have been fairly presented, in the compilation of such
statements. All financial statements included in such materials were prepared in
all material respects in conformity with GAAP, except as otherwise noted
therein, and comply with the applicable accounting requirements of Rule 11-02
of Regulation S-X and properly apply the pro forma adjustments to the historical
amounts, which have been fairly presented, in the compilation of such
statements. Neither the Borrower nor the Company has any Contingent Obligation,
contingent liability or liability for any taxes, long-term leases or
commitments, not reflected in its financial statements delivered to the
Administrative Agent on or prior to the Closing Date or otherwise disclosed to
the Administrative Agent and the Lenders in writing on or prior to the Closing
Date, which will have a Material Adverse Effect.
(h) Indebtedness. SCHEDULE 7.1-H sets forth, as of the Closing Date,
------------
after giving effect to the Mergers, all Indebtedness for borrowed money (other
than the Obligations) of each of the Borrower, the Company, and their respective
Subsidiaries, and, except as set forth on SCHEDULE 7.1-H, there are no defaults
in the payment of principal or interest on any such Indebtedness and no payments
thereunder have been deferred or extended beyond their stated maturity and there
has been no material change in the type or amount of such Indebtedness (except
for the repayment of certain Indebtedness) since the Closing Date.
(i) Litigation; Adverse Effects. Except as set forth in SCHEDULE
---------------------------
7.1-I, as of the Closing Date, there is no action, suit, proceeding,
investigation or arbitration before or by any Governmental Authority or private
arbitrator pending or, to the knowledge of the Borrower, threatened against the
Company, the Borrower, or any of their respective Subsidiaries, or any Property
of any of them (i) challenging the validity or the enforceability of any of the
Loan Documents, (ii) which could reasonably be expected to result in any
Material Adverse Effect, or (iii) under the Racketeering Influenced and Corrupt
Organizations Act or any similar federal or state statute where such Person is a
defendant in a criminal indictment that provides for the forfeiture of assets
to any Govern mental Authority as a potential criminal penalty. There is no
material loss contingency within the meaning of GAAP which has not been
reflected in the consolidated financial statements of the Company and the
Borrower. None of the Company, the Borrower, or, to the best of the Borrower's
knowledge, any Subsidiary of the Borrower is (A) in violation of any applicable
Requirements of Law which violation will have or is reasonably likely to have a
Material Adverse Effect, or (B) in default with respect to any final judgment,
writ, injunction, re straining order or order of any nature, decree, rule or
regulation of any court or Governmental Authority which will have a Material
Adverse Effect.
(j) No Material Adverse Effect. Since December 31, 1998, there has
--------------------------
occurred no event which has had a Material Adverse Effect.
(k) Intentionally Omitted.
---------------------
(l) Payment of Taxes. All material tax returns, reports and similar
----------------
statements or, to the best of the Borrower's and the Company's knowledge,
filings of the Company, the Borrower, and their respective Subsidiaries required
to be filed have been timely filed (or extensions to file have been obtained),
and, except for Customary Permitted Liens, all material taxes, assessments, fees
and other charges of Govern mental Authorities thereupon and upon or relating to
their respective Properties, assets, receipts, sales, use, payroll, employment,
income, licenses and franchises which are shown in such returns or reports to be
due and payable have been paid, except to the extent (i) such taxes,
assessments, fees and other charges of Governmental Authorities are being
contested in good faith by an appropriate proceeding diligently pursued as
permitted by the terms of Section 9.4 and (ii) such taxes, assessments, fees and
other charges of Governmental Authorities pertain to Property of the Borrower
or any of its Subsidiaries and the non-payment of the amounts thereof would
not, individually or in the aggregate, result in a Material Adverse Effect. All
other material taxes (including, without limitation, real estate taxes),
assessments, fees and other governmental charges upon or relating to the
respective Properties of the Borrower and, to the best of the Borrower's
knowledge, its Subsidiaries which are due and payable have been paid, except for
Customary Permitted Liens and except to the extent described in clauses (i) and
(ii) hereinabove. The Borrower has no knowledge of any proposed tax assessment
against the Borrower, any of its Subsidiaries, or any of the Projects that will
have or is reasonably likely to have a Material Adverse Effect.
(m) Performance. To the knowledge of the Borrower, neither the
-----------
Company, nor any of its Subsidiaries has received any written notice or
citation, nor has actual knowledge, that (i) it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation applicable to it, or (ii) any
condition exists which, with the giving of notice or the lapse of time or both,
would constitute a default with respect to any such Contractual Obligation, in
each case, except where such default or defaults, if any, will not have a
Material Adverse Effect.
(n) Disclosure. The representations and warranties of the Borrower
----------
contained in the Loan Documents, and all certificates and other documents
delivered to the Administrative Agent pursuant to the terms thereof, do not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements contained herein or therein, in
light of the circumstances under which they were made, taken as a whole, not
misleading. Notwithstanding the foregoing, the Lenders acknowledge that the
Borrower shall not have liability under this clause (n) with respect to its
projections of future events or for any financial projections.
(o) Requirements of Law. The Borrower, the Company and, to the best of
-------------------
the Borrower's and the Company's knowledge, each of their respective
Subsidiaries is in compliance with all Requirements of Law applicable to it and
its respective businesses and Properties, in each case where the failure to so
comply individually or in the aggregate will have a Material Adverse Effect.
(p) Environmental Matters.
---------------------
(i) Except as disclosed on SCHEDULE 7.1-P (the Borrower shall
update SCHEDULE 7.1-P as of the first day of each fiscal quarter, and deliver
the same together with the Quarterly Compliance Certificates, to the extent
required, in order to keep said Schedule true and correct):
(A) the operations of the Borrower, to the best of the
Borrower's knowledge, its Subsidiaries, and its Properties comply with all
applicable Environmental, Health or Safety Requirements of Law, except to the
extent any failure to do so would not have a Material Adverse Effect;
(B) the Borrower and, to the best of the Borrower's
knowledge, its Subsidiaries have obtained all material environmental, health and
safety Permits necessary for their respective operations, and all such Permits
are in good standing and the holder of each such Permit is currently in
compliance with all terms and conditions of such Permits, except to the extent
any failure to do so would not have a Material Adverse Effect;
(C) to the knowledge of the Borrower none of the Borrower,
or any of its Subsidiaries or any of their respective present or past Property
or operations are subject to or are the subject of any investigation of any
Governmental Authority, judicial or administrative proceeding, order, judgment
or decree, negotiations, agreement or settlement respecting (I) any Remedial
Action, (II) any Claims or Liabilities and Costs arising from the Release or
threatened Release of a Contaminant into the environment, or (III) any violation
of or liability under any Environmental, Health or Safety Requirement of Law,
except to the extent none of the foregoing would have a Material Adverse Effect;
(D) none of Borrower or, to the best of the Borrower's
knowledge, any of its Subsidiaries has filed any notice under any applicable
Requirement of Law (I) re porting a Release of a Contaminant; (II) indicating
past or present treatment, storage or disposal of a hazardous waste, as that
term is defined under 40 C.F.R. Part 261 or any state equivalent; or (III)
reporting a violation of any applicable Environmental, Health or Safety
Requirement of Law with respect to any of the foregoing, the substance of which
would have a Material Adverse Effect;
(E) none of the Borrower's or, to the best of the Borrower's
knowledge, any of its Subsidiaries' present or past Property is listed or, to
the knowledge of the Borrower, proposed for listing on the National Priorities
List ("NPL") pursuant to CERCLA or on the Comprehensive Environmental Response
Compensation Liability Information System List ("CERCLIS") or any similar state
list of sites requiring Remedial Action;
(F) to the knowledge of the Borrower none of the Borrower or
any of its Subsidiaries has sent or directly arranged for the transport of any
waste to any site listed or proposed for listing on the NPL, CERCLIS or any
similar state list;
(G) to the best of the Borrower's knowledge, there is not
now, and to the Borrower's knowledge there has never been on or in any Project,
(I) any treatment, recycling, storage away from the site of generation or
disposal of any hazardous waste, as that term is defined under 40 C.F.R. Part
261 or any state equivalent, (II) any solid waste management facility, (III)
any underground storage tanks the presence or use of which is in violation of
applicable Environmental, Health or Safety Requirements of Law, (IV) any
asbestos-containing material which, in its present state, such Person has any
reason to believe could subject such Person or its Property to Liabilities and
Costs arising out of or relating to environmental, health or safety matters
that would result in a Material Adverse Effect; or (V) any polychlorinated
biphenyls (PCB) used in hydraulic oils, electrical transformers or other
Equipment, which, in any such case, would subject the Borrower or its Property
to Liabilities and Costs arising out of or relating to environmental, health or
safety matters that would result in a Material Adverse Effect;
(H) to the knowledge of the Borrower, neither the Borrower
nor any of its Subsidiaries has received any notice or Claim to the effect that
any of such Persons is or may be liable to any Person as a result of the Release
or threatened Release of a Contaminant into the environment which would result
in a Material Adverse Effect;
(I) neither the Borrower nor, to the best of the Borrower's
knowledge, any of its Subsidiaries has any contingent liability in connection
with any Release or threatened Release of any Contaminants into the environment
which will result in a Material Adverse Effect;
(J) no Environmental Lien has attached to any Property of
the Borrower or, to the best of the Borrower's knowledge, any of its
Subsidiaries (other than those otherwise permitted hereunder) or which do not
constitute an Event of Default; and
(K) no Property of the Borrower, or any of its Subsidiaries
is subject to any Environmental Property Transfer Act, or to the extent such
acts are applicable to any such Property, the Borrower and/or such Subsidiary
whose Property is subject thereto has complied in all material respects with the
requirements of such acts.
(q) ERISA. Neither the Borrower nor any ERISA Affiliate maintains or
-----
contributes to any Benefit Plan or Multiemployer Plan other than those listed on
SCHEDULE 7.1-Q hereto. Each Plan which is intended to be qualified under Section
401(a) of the Internal Revenue Code as currently in effect has been determined
by the IRS to be so qualified, and each trust related to any such Plan has been
determined to be exempt from federal income tax under Section 501(a) of the
Internal Revenue Code as currently in effect. Except as disclosed in SCHEDULE
7.1-Q, neither the Borrower nor any of its Subsidiaries maintains or contributes
to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA
that provides benefits to employees after termination of employment other than
as required by Section 601 of ERISA. The Borrower and, to the best of the
Borrower's knowledge, each of its Subsidiaries is in compliance in all material
respects with the responsibilities, obligations and duties imposed on it by
ERISA, the Internal Revenue Code and regulations promulgated thereunder with
respect to all Plans. No Benefit Plan has incurred any accumulated funding
deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Internal
Revenue Code) whether or not waived. Neither the Borrower nor any ERISA
Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (i)
has engaged in a nonexempt prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code or (ii) has taken or failed to take
any action which would constitute or result in a Termination Event. Neither the
Borrower nor any ERISA Affiliate is subject to any liability under Sections
4063, 4064, or 4204 of ERISA which would have a Material Adverse Effect. Neither
the Borrower nor any ERISA Affiliate is subject to any liability under Sections
4069 or 4212(c) of ERISA or has incurred any liability to the PBGC which remains
outstanding other than the payment of premiums, and there are no premium
payments which have become due which are unpaid. Schedule B to the most recent
annual report filed with the IRS with respect to each Benefit Plan has been
furnished to the Administrative Agent and is complete and accurate in all
material respects. Since the date of each such Schedule B, there has been no
material adverse change in the funding status or financial condition of the
Benefit Plan relating to such Schedule B. Neither the Borrower nor any ERISA
Affiliate has (i) failed to make a required contribution or payment to a
Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections
4203 or 4205 of ERISA from a Multiemployer Plan which would have a Material
Adverse Effect. Neither the Borrower, nor any ERISA Affiliate has failed to make
a required installment or any other required payment under Section 412 of the
Internal Revenue Code on or before the due date for such installment or other
payment. Neither the Borrower nor any ERISA Affiliate is required to provide
security to a Benefit Plan under Section 401(a)(29) of the Internal Revenue Code
due to a Benefit Plan amendment that results in an increase in current liability
for the plan year. Except as disclosed on SCHEDULE 7.1-Q, which shall be updated
by Borrower as of the first day of each fiscal quarter, to the extent required,
neither the Borrower nor any of its Subsidiaries has, by reason of the
transactions contemplated hereby, any obligation to make any payment to any
employee pursuant to any Plan or existing contract or arrangement.
(r) Securities Activities. The Borrower is not engaged in the business
---------------------
of extending credit for the purpose of purchasing or carrying Margin Stock
except as described on SCHEDULE 7.1-R.
(s) Solvency. After giving effect to the Loans to be made on the
--------
Funding Date or such other date as Loans requested hereunder are made, and the
disbursement of the proceeds of such Loans pursuant to the Borrower's
instructions, the Borrower is Solvent.
(t) Insurance. SCHEDULE 7.1-T accurately sets forth as of the Closing
---------
Date all insurance policies and pro grams currently in effect with respect to
the respective Property and assets and business of the Borrower and, after
giving effect to the Mergers, its Subsidiaries, specifying for each such policy
and program, (i) the amount thereof, (ii) the risks insured against thereby,
(iii) the name of the insurer and each insured party thereunder, (iv) the policy
or other identification number thereof, and (v) the expiration date thereof. The
Borrower has delivered to the Administrative Agent copies of all insurance
policies set forth on SCHEDULE 7.1-T. Such insurance policies and programs are
currently in full force and effect, in compliance with the requirements of
Section 9.5 hereof and, together with payment by the insured of scheduled
deductible payments, are, to the knowledge of the Borrower, in amounts which
should reasonably be expected to be sufficient to cover the replacement value of
the respective Property and assets of the Borrower and/or its Subsidiaries.
(u) Projects. After giving effect to the Mergers, and except as
--------
otherwise described on SCHEDULE 7.1-U, the Borrower owns 100% fee simple title
to each of the Projects and, with the exception of Tower 45, 810 Seventh Avenue,
One Orlando Center, Deer Valley Phase I and Corporate Center, no such Project is
encumbered by any Indebtedness.
(v) Ownership of Projects and Property. After giving effect to the
----------------------------------
Mergers, ownership of all wholly owned Projects, Minority Holdings and other
Property of the Consolidated Businesses is held by the Borrower and its
Subsidiaries and is not held directly by the Company.
(w) Year 2000 Compliance. The Borrower has commenced a comprehensive
--------------------
review and assessment of the Borrower's computer applications and has commenced
inquiry of the Borrower's key suppliers, vendors and customers with respect to
the "year 2000 problem" (that is, the risk that computer applications may not be
able to properly perform date sensitive functions after December 31, 1999) and,
based on that review and inquiry, the Borrower does not believe the year 2000
problem could reasonably be expected to result in a Material Adverse Effect.
The Borrower will complete such review, assessment and inquiry on or before July
31, 1999.
(x) Representations and Warranties of Mortgagor. Mortgagor, by
-------------------------------------------
execution of this Agreement, hereby represents and warrants to Lenders all
matters set forth herein that have been represented by Borrower with respect to
the Mortgagor as its warranties and representations.
ARTICLE VIII
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 14.3 not yet due), unless the
Requisite Lenders shall otherwise give prior written consent thereto:
8.1. Borrower Accounting Practices. The Borrower shall maintain, and
-----------------------------
cause each of its consolidated Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of consolidated financial statements in conformity with GAAP.
8.2. Financial Reports. The Borrower shall deliver or cause to be
-----------------
delivered to the Administrative Agent (with copies for each of the Lenders):
(a) Quarterly Reports.
(i) Borrower Quarterly Financial Reports. As soon as practicable, and
------------------------------------
in any event within forty-five (45) days after the end of each fiscal quarter in
each Fiscal Year commencing June 30, 1999 (other than the last fiscal quarter in
each Fiscal Year), a consolidated balance sheet of the Borrower and the related
consolidated statements of income and cash flow of the Borrower (to be prepared
and delivered quarterly in conjunction with the other reports delivered
hereunder at the end of each fiscal quarter) for each such fiscal quarter,
certified by an Authorized Financial Officer of the Borrower as fairly
presenting in all material respects the consolidated financial position of the
Borrower as of the dates indicated and the results of their operations and cash
flow for the months indicated in accordance with GAAP, subject to normal
quarterly adjustments.
(ii) Company Quarterly Financial Reports. As soon as practicable, and
-----------------------------------
in any event within forty-five (45) days after the end of each fiscal quarter
commencing June 30, 1999 in each Fiscal Year (other than the last fiscal quarter
in each Fiscal Year), the Financial Statements of the Company and its
consolidated Subsidiaries at the end of such period, certified by an Authorized
Financial Officer of the Company as fairly presenting in all material respects
the consolidated financial position of the Company and its consolidated
Subsidiaries as at the date indicated and the results of their operations and
cash flow for the period indicated in accordance with GAAP, subject to normal
adjustments.
(iii) Quarterly Compliance Certificates. Together with each delivery
---------------------------------
of any quarterly report pursuant to paragraph (a)(i) of this Section 8.2, the
Borrower, shall deliver Officer's Certificates of the Borrower and the Company
(the "Quarterly Compliance Certificates"), signed by the Borrower's and the
Company's respective Authorized Financial Officers representing and certifying
(1) that the Authorized Financial Officer signatory thereto has reviewed the
terms of the Loan Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the consolidated financial
condition of the Company and its Consolidated Subsidiaries, for the fiscal
quarter covered by such reports, that such review has not disclosed the
existence during or at the end of such fiscal quarter, and that such officer
does not have knowledge of the existence as at the date of such Officer's
Certificate, of an Event of Default or Potential Event of Default or mandatory
prepayment event, or, if any such condition or event existed or exists, the
nature and period of existence thereof and what action the Company and/or the
Borrower or any of their Subsidiaries has taken, is taking and proposes to take
with respect thereto; (2) the calculations in the form of Exhibit G hereto for
the period then ended which demonstrate compliance with the covenants and
financial ratios set forth in Sections 9.9, 9.11, 10.1, 10.3, 10.6, 10.7, 10.11,
and 10.12 hereof and, when applicable, that no Event of Default described in
Section 11.1 exists, (3) a schedule of the Borrower's outstanding Indebtedness,
including the amount, maturity, interest rate and amortization requirements, as
well as such other information regarding such Indebtedness as may be reasonably
requested by the Administrative Agent, (4) a schedule of NOI for each Real
Property and (5) a schedule of Projects in which Borrower owns, directly or
indirectly, 100% fee simple in the form of SCHEDULE B hereto.
(b) Annual Reports.
--------------
(i) Borrower Financial Statements. As soon as practicable, and in any
-----------------------------
event within ninety (90) days after the end of each Fiscal Year, the Financial
Statements of the Borrower and its consolidated Subsidiaries as at the end of
such Fiscal Year, accompanied by an Officer's Certificate of the Borrower,
certified by the Chief Financial Officer of the Borrower that the Financial
Statements fairly present in all material respects the consolidated financial
position of the Borrower and its consolidated Subsidiaries as of the dates
indicated and the results of their operations and cash flow for the periods
indicated in conformity with GAAP consistently applied, and which Officer's
Certificate shall explain any inconsistencies between the Financial Statements
of the Borrower and the Financial Statements of the Company.
(ii) Company Financial Statements. As soon as practicable, and in any
----------------------------
event within ninety (90) days after the end of each Fiscal Year, (i) the
Financial Statements of the Company and its consolidated Subsidiaries as at the
end of such Fiscal Year and a report setting forth in comparative form the
corresponding figures from the consolidated Financial Statements of the Company
and its Subsidiaries for the prior Fiscal Year; (ii) a report with respect
thereto of Ernst & Young LLP or other independent certified public accountants
acceptable to the Administrative Agent (it being understood that any "Big Five"
certified public accountants are accept able to the Administrative Agent), which
report shall be unqualified and shall state that such financial statements
fairly present the consolidated financial position of each of the Company and
its consolidated Subsidiaries as at the dates indicated and the results of their
operations and cash flow for the periods indicated in conformity with GAAP
(except for changes with which Ernst & Young LLP or any such other independent
certified public accountants, if applicable, shall concur and which shall have
been disclosed in the notes to the financial statements) (which report shall be
subject to the confidentiality limitations set forth herein); and (iii) in the
event that the report referred to in clause (ii) above is qualified, a copy of
the management letter or any similar report delivered to the Company or to any
officer or employee thereof by such independent certified public accountants in
connection with such financial statements. The Administrative Agent and each
Lender (through the Administrative Agent) may, with the consent of the Company
(which consent shall not be unreasonably withheld), communicate directly with
such accountants, with any such communication to occur together with a
representative of the Company, at the expense of the Administrative Agent (or
the Lender requesting such communication), upon reasonable notice and at
reasonable times during normal business hours.
(iii) Annual Compliance Certificates. Together with each delivery of
------------------------------
any annual report pursuant to clauses (i) and (ii) of this Section 8.2(b), the
Borrower shall deliver an Officer's Certificates of the Borrower and the
Company (the "Annual Compliance Certificates" and, collectively with the
Quarterly Compliance Certificates, the "Compliance Certificates"), signed by
the Borrower's and the Company's respective Authorized Financial Officers,
representing and certifying (1) that the officer signatory thereto has reviewed
the terms of the Loan Documents, and has made, or caused to be made under
his/her supervision, a review in reasonable detail of the consolidated financial
condition of the Company and its consolidated Subsidiaries, for the accounting
period covered by such reports, that such review has not disclosed the existence
at the end of such accounting period, and that such officer does not have
knowledge of the existence as at the date of such Officer's Certificate, of an
Event of Default or Potential Event of Default or mandatory prepayment event,
or, if any such condition or event existed or exists, the nature and period of
existence thereof and what action the Company and/or the Borrower or any of
their Subsidiaries has taken, is taking and proposes to take with respect
thereto; (2) the calculations in the form of Exhibit G hereto for the period
then ended which demonstrate compliance with the covenants and financial ratios
set forth in Sections 9.9, 9.11, 10.1, 10.3, 10.6, 10.7, 10.11, and 10.12 hereof
and, when applicable, that no Event of Default described in Section 11.1 exists,
(3) a schedule of the Borrower's outstanding Indebtedness including the amount,
maturity, interest rate and amortization requirements, as well as such other
information regarding such Indebtedness as may be reasonably requested by the
Administrative Agent, (4) a schedule of NOI for each Real Property and (5) a
schedule of Projects in which Borrower owns, directly or indirectly, 100% fee
simple in the form of SCHEDULE B.
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in any
-------------------------
event within ninety (90) days after the end of each Fiscal Year, the Borrower
shall deliver a written report, in form reasonably satisfactory to the
Administrative Agent, of all bankruptcy proceedings filed by or against any
tenant of any of the Projects, which tenant occupies three and one half percent
(3.5%) or more of the gross leasable area in the Projects in the aggregate. The
Borrower shall deliver to the Administrative Agent and the Lenders, immediately
upon the Borrower's learning thereof, of any bankruptcy proceedings filed by or
against, or the cessation of business or operations of, any tenant of any of
the Projects which tenant occupies three and one half percent (3.5%) or more of
the gross leasable area in the Projects in the aggregate.
(v) Property Reports. Simultaneously with the delivery of the
----------------
Compliance Certificates, a rent roll.
8.3. Events of Default. Promptly upon the Borrower obtaining knowledge
-----------------
(a) of any condition or event which constitutes an Event of Default or Potential
Event of Default; (b) that any Person has given any notice to the Borrower or
any Subsidiary of the Borrower or taken any other action with respect to a
claimed default or event or condition of the type referred to in Section
11.1(e); or (c) or of any condition or event which has a Material Adverse
Effect, the Borrower shall deliver to the Administrative Agent (with copies for
each of the Lenders) an Officer's Certificate specifying (i) the nature and
period of existence of any such claimed default, Event of Default, Potential
Event of Default, condition or event, (ii) the notice given or action taken by
such Person in connection therewith, and (iii) what action the Borrower has
taken, is taking and proposes to take with respect thereto.
8.4. Lawsuits. (i) Promptly upon the Borrower's obtaining knowledge of
--------
the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting the Borrower or
any of its Subsidiaries not previously disclosed pursuant to Section 7.1(i),
which action, suit, proceeding, governmental investigation or arbitration
exposes, or in the case of multiple actions, suits, proceedings, governmental
investigations or arbitrations arising out of the same general allegations or
circumstances which expose, in the Borrower's reasonable judgment, the Borrower
or any of its Subsidiaries to liability in an amount aggregating $1,000,000 or
more and is not covered by the Borrower's or such Subsidiary's insurance, the
Borrower shall give written notice thereof to the Administrative Agent (with
copies for each of the Lenders) and provide such other information as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; (ii) as soon as practicable and in any event
within forty-five (45) days after the end of each fiscal quarter of the
Borrower, the Borrower shall provide a written quarterly report to the
Administrative Agent and the Lenders covering the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or
arbitration in an amount equal to or in excess of $5,000,000 to the extent not
previously reported) against or affecting the Borrower or any of its
Subsidiaries or any Property of the Borrower or any of its Subsidiaries not
previously disclosed by the Borrower to the Administrative Agent and the
Lenders, and shall provide such other information at such time as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; and (iii) in addition to the requirements set
forth in clauses (i) and (ii) of this Section 8.4, the Borrower upon request of
the Administrative Agent or the Requisite Lenders shall promptly give writ ten
notice of the status of any action, suit, proceeding, governmental
investigation or arbitration covered by a report delivered pursuant to clause
(i) or (ii) above and provide such other information as may be reasonably
requested and available to it to enable each Lender and the Administrative Agent
and its counsel to evaluate such matters. Notwithstanding the foregoing, the
Borrower shall not be not required to disclose any information which is subject
to the attorney-client privilege.
8.5. Intentionally Omitted.
---------------------
8.6. ERISA Notices. The Borrower shall deliver or cause to be
-------------
delivered to the Administrative Agent (with copies for each of the Lenders), at
the Borrower's expense, the following information and notices as soon as
reasonably possible, and in any event:
(a) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that a Termination Event has
occurred, a written statement of an Authorized Financial Officer of the
Borrower describing such Termination Event and the action, if any, which
the Borrower or any ERISA Affiliate has taken, is taking or proposes to
take with respect thereto, and when known, any action taken or threatened
by the IRS, DOL or PBGC with respect thereto;
(b) within fifteen (15) Business Days after the Borrower knows or has
reason to know that a non-exempt prohibited transaction (as defined in
Sections 406 of ERISA and Section 4975 of the Internal Revenue Code) has
occurred with respect to the Borrower, any ERISA Affiliate or any Plan, a
statement of an Authorized Financial Officer of the Borrower describing
such transaction with respect to the Borrower, any ERISA Affiliate or any
Plan and the action which the Borrower or any ERISA Affiliate has taken, is
taking or proposes to take with respect thereto;
(c) within fifteen (15) Business Days after the filing of the same
with the DOL, IRS or PBGC, copies of each annual report (Form 5500 series),
including Schedule B thereto, filed with respect to each Benefit Plan;
(d) within fifteen (15) Business Days after receipt by the Borrower or
any ERISA Affiliate of each actuarial report for any Benefit Plan or
Multiemployer Plan and each annual report for any Multiemployer Plan,
copies of each such report;
(e) within fifteen (15) Business Days after the filing of the same
with the IRS, a copy of each funding waiver request filed with respect to
any Benefit Plan and all written communications received by the Borrower or
any ERISA Affiliate with respect to such request;
(f) within fifteen (15) Business Days after the occurrence of any
material increase in the benefits of any existing Benefit Plan or
Multiemployer Plan or the establishment of any new Benefit Plan or the
commencement of contributions to any Benefit Plan or Multiemployer Plan to
which the Borrower or any ERISA Affiliate to which the Borrower or any
ERISA Affiliate was not previously contributing, notification of such
increase, establishment or commencement;
(g) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate receives notice of the PBGC's intention to terminate a Benefit
Plan or to have a trustee appointed to administer a Benefit Plan, copies
of each such notice;
(h) within fifteen (15) Business Days after the Borrower or any of its
Subsidiaries receives notice of any unfavorable determination letter from
the IRS regarding the qualification of a Plan under Section 401(a) of the
Internal Revenue Code, copies of each such letter to the extent any of the
foregoing would have a Material Adverse Effect;
(i) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(j) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate fails to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due
date for such installment or payment which failure has not been cured, a
notification of such failure; and
(k) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that (i) a Multiemployer Plan has
been terminated, (ii) the administrator or plan sponsor of a Multiemployer
Plan intends to terminate a Multiemployer Plan, or (iii) the PBGC has
instituted or has given written notice that it will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan, notification
of such termination, intention to terminate, or institution of proceedings.
For purposes of this Section 8.6, the Borrower and any ERISA Affiliate shall be
deemed to know all facts known by the "Administrator" of any Plan of which the
Borrower or any ERISA Affiliate is the plan sponsor.
8.7. Environmental Notices. The Borrower shall notify the
---------------------
Administrative Agent (with copies for each of the Lenders) in writing, promptly
upon any Officer of the Borrower responsible for the environmental matters at
any Property of the Borrower learning thereof, of any of the following (together
with any material documents and correspondence received or sent in connection
therewith):
(a) notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release
or threatened Release of any Contaminant into the environment, if such
liability would result in a Material Adverse Effect;
(b) notice that the Borrower or any of its Subsidiaries is subject to
investigation by any Governmental Authority evaluating whether any Remedial
Action is needed to respond to the Release or threatened Release of any
Contaminant into the environment which would have a Material Adverse
Effect;
(c) notice that any Property of the Borrower or any of its
Subsidiaries is subject to an Environmental Lien if the claim to which
such Environmental Lien relates would result in a Material Adverse Effect;
(d) notice of violation by the Borrower or any of its Subsidiaries of
any Environmental, Health or Safety Requirement of Law which violation
would have a Material Adverse Effect;
(e) commencement or written threat of any judicial or administrative
proceeding alleging a violation by the Borrower or any of its Subsidiaries
of any Environmental, Health or Safety Requirement of Law, which would
result in a Material Adverse Effect; or
(f) any proposed acquisition of stock, assets, real estate, or leasing
of Property by the Borrower or any of its Subsidiaries that would subject
the Borrower or any of its Subsidiaries to environmental, health or safety
Liabilities and Costs which would result in a Material Adverse Effect.
8.8. Labor Matters. The Borrower shall notify the Administrative Agent
-------------
(with copies for each of the Lenders) in writing, promptly upon the Borrower's
learning thereof, of any labor dispute to which the Borrower or any of its
Subsidiaries is reasonably expected to become a party (including, without
limitation, any strikes, lockouts or other disputes relating to any Property of
such Persons' and other facilities) which would result in a Material Adverse
Effect.
8.9. Notices of Asset Sales and/or Acquisitions. The Borrower shall
------------------------------------------
deliver to the Administrative Agent and the Lenders written notice of each of
the following not less than five (5) Business Days prior to the occurrence
thereof: (a) a sale, transfer or other disposition of assets, in a single
transaction or series of related transactions, (b) an acquisition of assets, in
a single transaction or series of related transactions within the two preceding
calendar quarter period, and (c) the grant of a Lien with respect to assets, in
a single transaction or series of related transactions, exclusive of the
granting of Liens on equipment which do not exceed $250,000 in the aggregate. In
addition, simultaneously with delivery of any such notice, the Borrower shall
deliver to the Administrative Agent a certificate of an Authorized Officer
certifying that Borrower is in compliance with this Agreement and the other Loan
Documents both on a historical basis and on a pro forma basis, exclusive of the
property sold, transferred and/or encumbered and inclusive of the property to be
acquired or the indebtedness to be incurred.
To the extent such proposed transaction would result in a failure to
comply with the financial covenants set forth herein, proceeds of such
transaction (together with such additional amounts as may be required), in an
amount, as determined by the Administrative Agent, equal to that which would be
required to reduce the Obligations so that Borrower will be in compliance with
the covenants set forth herein upon the consummation of the contemplated
transaction, shall be applied to prepay the Obligations.
8.10. Notices of Minority Holdings. The Borrower shall deliver to the
----------------------------
Administrative Agent and the Lenders written notice of each of the following not
less than two (2) Business Days prior to the occurrence thereof: (a) the
acquisition of an interest in a Minority Holding in excess of $1,000,000, (b)
the investment of an amount in excess of $1,000,000 in a Minority Holding of
which the Administrative Agent and the Lenders have not previously received
notice, and (c) the sale of an interest in a Subsidiary that results in the same
becoming a Minority Holding. Simultaneously with the delivery of the Compliance
Certificates, the Borrower shall deliver to the Administrative Agent and the
Lenders written notice of the formation of any other Minority Holding.
8.11. Tenant Notifications. The Borrower shall promptly notify the
--------------------
Administrative Agent upon obtaining knowledge of the bankruptcy or cessation of
operations of any tenant to which greater than three and one half percent (3.5%)
of the Borrower's share of consolidated minimum rent is attributable to such
tenant.
8.12. Other Reports. The Borrower shall deliver or cause to be
-------------
delivered to the Administrative Agent (with copies for each of the other
Lenders) copies of all financial statements and reports, if any, sent or made
available generally by the Company and/or the Borrower to its respective
Securities holders, including, without limitation, supplemental quarterly forms,
or (to the extent not otherwise provided hereunder), all press releases made
available generally by the Company and/or the Borrower or any of their
Subsidiaries to the public concerning material adverse developments in the
business of the Company, the Borrower or any such Subsidiary and all material
notifications received by the Company, the Borrower or their Subsidiaries
pursuant to the Securities Exchange Act and the rules promulgated thereunder.
8.13. SEC Filings. The Borrower shall deliver to the Administrative
-----------
Agent copies of any documents filed by Reckson with the SEC in connection with
the Borrower, the Company and/or their Consolidated Subsidiaries, as soon as
practicable after, and in any event within three (3) days of, such filing.
8.14. Capital Expenditure Summaries. As soon as practicable and in any
-----------------------------
event by February 15 of each calendar year, the Borrower shall deliver to the
Administrative Agent (i) an annual summary of any and all capital expenditures
made at each of the Projects during the prior Fiscal Year and (ii) a budget for
all Capital Expenditures proposed for each Project for the current Fiscal Year,
on a property-by-property basis.
8.15. Other Information. Promptly upon receiving a request therefor
-----------------
from the Administrative Agent or any Arranger, the Borrower shall prepare and
deliver to the Administrative Agent (with copies for each of the other Lenders)
such other information with respect to the Company, the Borrower or any of its
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent or the Arranger.
ARTICLE IX
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 14.3 not yet due), unless the
Requisite Lenders shall otherwise give prior written consent:
9.1. Existence, Etc. The Borrower shall, and shall cause each of its
---------------
Subsidiaries to, at all times maintain its corporate existence or existence as a
limited partnership, limited liability company or joint venture, as applicable,
and preserve and keep, or cause to be preserved and kept, in full force and
effect its rights and franchises material to its businesses, except where the
loss or termination of such rights and franchises will not have a Material
Adverse Effect.
9.2. Powers; Conduct of Business. The Borrower shall remain qualified,
---------------------------
and shall cause each of its Subsidiaries to qualify and remain qualified, to do
business and maintain its good standing in each jurisdiction in which the nature
of its business and the ownership of its Property requires it to be so qualified
and in good standing if the failure to do so will have a Material Adverse
Effect.
9.3. Compliance with Laws, Etc. The Borrower shall, and shall cause
--------------------------
each of its Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants affecting such Person or the business, Property or
operations of such Person, and (b) obtain and maintain as needed all Permits
necessary for its operations (including, without limitation, the operation of
the Projects) and maintain such Permits in good standing, except where
noncompliance with either clause (a) or (b) above will not have a Material Ad
verse Effect.
9.4. Payment of Taxes and Claims. (a) The Borrower shall pay, and
---------------------------
cause each of its Subsidiaries to pay, (i) all material taxes, assessments and
other governmental charges imposed upon it or on any of its Property or assets
or in respect of any of its franchises, licenses, receipts, sales, use, payroll,
employment, business, income or Property before any penalty or interest accrues
thereon, and (ii) all material Claims (including, without limitation, claims for
labor, services, materials and supplies) for sums which have become due and
payable and which by law have or may become a Lien (other than Customary
Permitted Lien for property taxes and assessments not yet due upon any of the
Borrower's or any of its Subsidiaries' Property, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided, however, that
no such taxes, assessments, fees and governmental charges referred to in clause
(i) above or Claims referred to in clause (ii) above need be paid if being
contested in good faith by appropriate proceedings diligently instituted and
conducted and if such reserve or other appropriate provision, if any, as shall
be required in conformity with GAAP shall have been made therefor.
9.5. Insurance. The Borrower shall maintain for itself and its
---------
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on SCHEDULE 7.1-T or
substantially similar policies and programs or other policies and programs as
are reasonably acceptable to the Administrative Agent. All such policies and
programs shall be maintained with insurers having an Alfred M. Best Company,
Inc. rating of "A" or better and a financial size category of not less than IX.
9.6. Inspection of Property; Books and Records; Discussions. The
------------------------------------------------------
Borrower shall permit, and cause each of its Subsidiaries and the Company to
permit, any authorized representative(s) designated by the Administrative
Agent, the Arranger or any other Lender to visit and inspect any of the
Projects, to examine, audit, and check their respective financial and
accounting records, books, journals, orders, receipts and any correspondence and
other data relating to their respective businesses or the transactions
contemplated hereby (including, without limitation, in connection with
environmental compliance, hazard or liability), and to discuss their affairs,
finances and accounts with their officers and independent certified public
accountants, upon reasonable notice and at such reasonable times during normal
business hours, as often as may be reasonably requested. Each such visitation
and inspection shall be at such visitor's expense. The Borrower shall keep and
maintain, and cause its Subsidiaries to keep and maintain, in all material
respects proper books of record and account in which entries will be made in
conformity with GAAP.
9.7. ERISA Compliance. The Borrower shall, and shall cause each of its
----------------
Subsidiaries and ERISA Affiliates to, establish, maintain and operate all Plans
to comply in all material respects with the provisions of ERISA, the Internal
Revenue Code, all other applicable laws, and the regulations and interpretations
thereunder and the respective requirements of the governing documents for such
Plans.
9.8. Maintenance of Property. The Borrower shall, and shall cause each
-----------------------
of its Subsidiaries to, maintain in all material respects all of their
respective owned and leased Property in good, safe and insurable condition and
repair (ordinary wear and tear excepted), and not permit, commit or suffer any
waste or abandonment of any such Property and from time to time shall make or
cause to be made all material repairs, renewal and replacements thereof,
including, without limitation, any capital improvements which may be required to
maintain the same; provided, however, that such Property may be altered or
renovated in the ordinary course of business of the Borrower or such applicable
Subsidiary. Without any limitation on the foregoing, the Borrower shall maintain
the Projects in a manner such that each Project can be used in the manner and
substantially for the purposes such Project is used on the Closing Date,
including, without limitation, maintaining all utilities, access rights, zoning
and necessary Permits for such Project.
9.9. Company Status. Reckson, as the owner of the Company, shall at
--------------
all times retain direct or indirect, through the Company, management and control
of the Borrower.
9.10. Ownership of Projects, Minority Holdings and Property. The
-----------------------------------------------------
ownership of substantially all wholly owned Projects, Minority Holdings and
other Property of the Consolidated Businesses shall be held by the Borrower and
its Subsidiaries and shall not be held directly by the Company.
9.11. Ownership of Projects. Except as otherwise described on SCHEDULE
---------------------
7.1-U, the Borrower shall own, directly or indirectly, 100% fee simple title to
each of the Projects owned as of the date hereof.
9.12. Negative Pledge. At such time as the Revolving Credit Agreement
---------------
and the Existing Credit Agreement shall be terminated or otherwise modified to
exclude prohibitions on negative pledges, Borrower shall grant a negative
pledge to Lenders under this Agreement such that neither Borrower nor any of its
Subsidiaries shall directly or indirectly create, incur, assume or permit to
exist any Lien on or with respect to any Property other than Liens permitted
under Section 10.2 of the Revolving Credit Agreement. Nothing contained in this
Section 9.12 shall be construed as an agreement prohibiting the creation or
assumption of any Lien upon the properties, revenues or assets of Borrower or
any of its Subsidiaries in contravention of the Revolving Credit Agreement or
the Existing Credit Agreement.
9.13. Affirmative Covenants of Mortgagor. Mortgagor, by execution of
----------------------------------
this Agreement, hereby agrees to keep and perform the covenants and agreements
set forth in this Article IX applicable to the Mortgagor.
ARTICLE X
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Commitments are outstanding and thereafter until
payment in full of all of the Obligations (other than indemnities pursuant to
Section 14.3 not yet due), unless the Requisite Lenders shall otherwise give
prior written consent:
10.1. Sale of Projects. Neither the Borrower nor any of its
----------------
Subsidiaries shall sell, transfer or convey the Projects listed on SCHEDULE B
hereto, whether now owned or hereafter acquired, or sell, transfer or convey any
other Project; provided, however, that the Borrower and its Subsidiaries may
sell, assign or convey any of such Projects, provided that the Borrower shall
comply with the provisions of Section 4.1(d) hereof.
10.2. Intentionally Omitted.
---------------------
10.3. Indebtedness. None of the Borrower, the Company or any of their
------------
respective Subsidiaries shall create, incur, assume or otherwise become or
remain directly or indirectly liable for any Indebtedness, except nonrecourse
Indebtedness incurred in a single occurrence in connection with Borrower's
acquisition or refinancing of a Project and having an LTV Ratio of less than or
equal to 75%.
10.4. Conduct of Business. Neither the Borrower nor any of its
-------------------
Subsidiaries shall engage in any business, enterprise or activity other than (a)
the businesses of acquiring, developing, re-developing and managing
predominantly office and industrial Projects and portfolios of like Projects,
and (b) any business or activities which are substantially similar, related or
incidental thereto.
10.5. Transactions with Partners and Affiliates. Neither the Borrower
-----------------------------------------
nor any of its Subsidiaries shall directly or indirectly enter into or permit
to exist any trans action (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder or holders of more than five percent (5%) of any class of equity
Securities of the Borrower, or with any Affiliate of the Borrower which is not
its Subsidiary, unless such transaction is determined by the respective Boards
of Directors (or managers or trustees) of the Company to be no less favorable to
the Borrower or any of its Subsidiaries than those that might be obtained in an
arm's length transaction at the time from Persons who are not such a holder or
Affiliate (other than transactions permitted by Section 2.3). Nothing contained
in this Section 10.5 shall prohibit (a) increases in compensation and benefits
for officers and employees of the Borrower or any of its Subsidiaries; (b)
payment of officers', managers', trustees', directors', partners' and other
similar indemnities; (c) performance of any obligations arising under the Loan
Documents; or (d) loans to Persons in connection with such Person's contribution
of Real Property to the Consolidated Businesses.
10.6. Restriction on Fundamental Changes. The Borrower shall not enter
----------------------------------
into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer
any liquidation or dissolution), or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or series of transactions, all or substantially
all of the Borrower's business or Property, whether now or hereafter acquired,
except in connection with issuance, transfer, conversion or repurchase of
limited partnership interests in the Borrower or as otherwise permitted hereby.
Notwithstanding the foregoing, the Borrower shall be permitted to merge or
consolidate with another Person so long as the Borrower is the surviving Person
following such merger or consolidation, and the Borrower shall be permitted to
merge or consolidate with Reckson or another Person so long as Reckson is the
surviving Person following any such merger or consolidation.
10.7. Margin Regulations; Securities Laws. None of the Borrower nor
-----------------------------------
any of its Subsidiaries, shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock, except
as other wise contemplated by the Mergers.
10.8. ERISA. The Borrower shall not and shall not permit any of its
-----
Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code for which a statutory or class
exemption is not available or a private exemption has not been previously
obtained from the DOL, except to the extent engaging in such transaction
would not have a Material Adverse Effect;
(b) permit to exist any accumulated funding deficiency (as defined in
Sections 302 of ERISA and 412 of the Internal Revenue Code), with respect
to any Benefit Plan, whether or not waived;
(c) fail to pay timely required contributions or annual installments
due with respect to any waived funding deficiency to any Benefit Plan;
(d) terminate any Benefit Plan which would result in any liability of
Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer Plan
which Borrower or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining
thereto, except to the extent such failure would not have a Material
Adverse Effect;
(f) fail to pay any required installment or any other payment required
under Section 412 of the Internal Revenue Code on or before the due date
for such installment or other payment; or
(g) amend a Benefit Plan resulting in an in crease in current
liability for the plan year such that the Borrower or any ERISA Affiliate
is required to provide security to such Plan under Section 401(a)(29) of
the Internal Revenue Code.
10.9. Organizational Documents. Neither the Company nor the Borrower
------------------------
shall amend, modify or otherwise change any of the terms or provisions in any of
their respective Organizational Documents as in effect on the Closing Date,
except amendments to effect (a) a change of name of the Borrower, provided that
the Borrower shall have provided the Administrative Agent with thirty (30) days
prior written notice of any such name change, or (b) changes that would not
affect such Organizational Documents in any material manner not otherwise
permitted under this Agreement.
10.10. Fiscal Year. Neither the Company, the Borrower, nor any of
-----------
their respective Subsidiaries shall change its Fiscal Year for accounting or tax
purposes from a period consisting of the 12-month period ending on December 31
of each calendar year.
10.11. Financial Covenants.
-------------------
(a) Maximum Leverage Ratio. As of the first day of each calendar
----------------------
quarter, for the immediately preceding calendar quarter, the ratio (the
"Leverage Ratio"), expressed as a percentage, of (i) Total Outstanding
Indebtedness to (ii) Capitalization Value shall at no time exceed fifty-five per
cent (55%).
(b) Minimum Total Interest Expense Ratio. As of the first day of each
------------------------------------
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Total NOI to (ii) Total Interest Expense shall not be less than 2.1 to 1.0.
(c) Minimum Fixed Charge Coverage Ratio. As of the first day of each
-----------------------------------
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Total NOI to (ii) Fixed Charges shall not be less than 1.6 to 1.0.
(d) Minimum Debt Yield. As of the first day of each calendar quarter
------------------
for the immediately preceding calendar quarter, the ratio (the "Debt Yield"),
expressed as a percent age, of (i) Total NOI multiplied by four (4), to (ii)
Total Outstanding Indebtedness shall not be less than 16%.
(e) Maximum Unencumbered Value Ratio. As of the first day of each
--------------------------------
calendar quarter for the immediately preceding calendar quarter, the ratio,
expressed as a percentage, of (i) Unsecured Indebtedness to (ii) Unencumbered
Value shall not exceed fifty percent (50%).
(f) Minimum Unsecured Interest Expense Coverage Ratio. As of the first
-------------------------------------------------
day of each calendar quarter, for the immediately preceding calendar quarter,
the ratio of (i) Unencumbered NOI to (ii) Unsecured Interest Expense shall not
be less than 2.5 to 1.0.
(g) Minimum Unsecured Debt Yield. As of the first day of each calendar
----------------------------
quarter for the immediately preceding calendar quarter, the ratio (the "Minimum
Unsecured Debt Yield"), expressed as a percentage, of (i) Unencumbered NOI
multiplied by four (4) to (ii) Unsecured Indebtedness shall not be less than
nineteen percent (19%).
(h) Negative Pledge. From and after the date here of, neither the
---------------
Borrower nor the Company will, and will not permit any Subsidiary, to enter into
any agreement containing any provision prohibiting the creation or assumption of
any Lien upon its properties (other than with respect to prohibitions on
subordinate liens set forth in a mortgage on a particular property), revenues
or assets, whether now owned or hereafter acquired, or restricting the ability
of the Borrower to amend or modify this Agreement or any other Loan Document.
10.12. Pro Forma Calculations. In connection with an acquisition or
----------------------
disposition of a Project owned by the Consolidated Businesses or a Property
owned by a Minority Holding, certain financial ratios shall be calculated as
follows on a pro forma basis (with respect to the pro rata share of the Borrower
or the Company in the case of an acquisition or disposition by a Minority
Holding, as applicable), which pro forma calculation shall be effective until
the first day of the second calendar quarter following an acquisition (or such
earlier test period, as applicable), at which time actual performance will be
utilized for such calculations.
(a) NOI. NOI for the acquired Project, as of the first day of a fiscal
---
quarter for the immediately preceding fiscal quarter, shall be deemed to be the
"In-Place NOI" from such acquired Project during such preceding fiscal quarter
following Borrower's acquisition of such Project. For the purposes of this
Section 10.12(a), In-Place NOI for any period shall mean the NOI for such period
adjusted to include the portion of NOI from leases expiring during such period
and leases commencing during such period, but, in either case, only to the
extent allocable to such period.
(b) Total NOI. The pro forma calculation of NOI for the acquired
---------
Project shall be added to the calculation of Total NOI.
(c) Unencumbered NOI. If, after giving effect to an acquisition of a
----------------
Project wholly-owned by the Consolidated Businesses, the acquired Project will
not be encumbered by Secured Indebtedness, the pro forma NOI for the acquired
Project shall be added to the calculation of Unencumbered NOI.
(d) Capitalization Value. Capitalization Value for the acquired
--------------------
Project shall be deemed to be the lesser of (x) the purchase price of the
Project and (y) the quotient of the pro forma calculation of NOI and the Weighed
Average Capitalization Rate.
(e) Total Outstanding Indebtedness. Any Indebtedness incurred and/or
------------------------------
assumed in connection with such acquisition, including the pro rata share of
recourse Indebtedness allocable to the Consolidated Businesses in connection
with an acquisition by a Minority Holding, shall be added to the calculation of
Total Outstanding Indebtedness.
10.13. Negative Covenants with respect to the Company.
----------------------------------------------
(a) From and after the date hereof, the Company will not acquire any
assets of any nature whatsoever other than additional units in the Borrower.
(b) From and after the date hereof, the Company will not incur any
Indebtedness or any other obligations or liabilities except as the general
partner of the Borrower in connection with trade payables incurred in the
ordinary course of business.
(c) From and after the date hereof, the Company will not retain any
Net Offering Proceeds, and the same will be contributed by the Company to the
Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, any of its business or assets, including its interests
in the Borrower. Notwithstanding the foregoing, the Company shall be permitted
to merge or consolidate with an other Person so long as the Company is the
surviving Person following such merger and Reckson maintains a 100% ownership
interest in the Company, and the Company may merge or consolidate with Reckson
or another Person so long as Reckson is the surviving Person following any such
merger or consolidation and Reckson retains not less than a 66 2/3% interest in
the Borrower.
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default. Each of the following occurrences shall
-----------------
constitute an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. The Borrower shall fail to pay
---------------------------------
(i) when due any principal payment on the Obligations which is due on the
Termination Date or pursuant to the terms of Section 2.1(a), Section 2.4,
Section 4.1(a), or Section 4.1(d) or (ii) when due, any interest payment on the
Obligations, or (iii) when due, any principal payment on the Obligations not
referenced in clauses (i) or (ii) hereinabove or (iv) when due, any fees due.
(b) Breach of Certain Covenants. The Borrower shall fail duly and
---------------------------
punctually to perform or observe any agreement, covenant or obligation binding
on such Person under Sections 9.1, 9.4, 9.5, 9.10, 9.11 or Article X.
(c) Breach of Representation or Warranty. Any representation or
------------------------------------
warranty made by the Borrower, or any Guarantor to the Administrative Agent,
the Arranger or any other Lender herein or by the Borrower or any Guarantor or
any of their Subsidiaries in any of the other Loan Documents or in any statement
or certificate at any time given by any such Person pursuant to any of the Loan
Documents shall be false or misleading in any material respect on the date as of
which made.
(d) Other Defaults. The Borrower shall default in the performance of
--------------
or compliance with any term contained in this Agreement (other than as
identified in paragraphs (a), (b) or (c) of this Section 11.1), or any default
or event of default shall occur under any of the other Loan Documents, and such
default or event of default shall continue for thirty (30) days after receipt of
written notice from the Administrative Agent thereof.
(e) Acceleration of Other Indebtedness. Any breach, default or event
----------------------------------
of default shall occur and be continuing, or any other condition shall exist
under any instrument, agreement or indenture pertaining to any recourse
Indebtedness (other than the Obligations) of the Company, the Borrower or their
Subsidiaries, in excess of $1,000,000 in aggregate, and the effect thereof is to
cause an acceleration, mandatory redemption or other required repurchase of
such Indebtedness, or permit the holder(s) of such Indebtedness to accelerate
the maturity of any such Indebtedness or require a redemption or other
repurchase of such Indebtedness; or any such Indebtedness shall be otherwise
declared to be due and payable (by acceleration or otherwise) or required to be
prepaid, redeemed or otherwise repurchased by the Borrower or any of its
Subsidiaries (other than by a regularly scheduled required prepayment) prior to
the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
-----------------------------------------------------
(i) An involuntary case shall be commenced against the Company, the
Borrower or any of their Subsidiaries, and the petition shall not be dismissed,
stayed, bonded or discharged within sixty (60) days after commencement of the
case; or a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company, the Borrower or any such
Subsidiaries of the Borrower in an involuntary case, under any applicable
bankruptcy, insolvency or other similar law now or hereinafter in effect; or any
other similar relief shall be granted under any applicable federal, state, local
or foreign law; or the respective board of directors of the Company, or Limited
Partners of the Borrower, or the board of directors or partners of any such
Subsidiaries of the Borrower (or any committee thereof) adopts any resolution or
otherwise authorizes any action to approve any of the fore going.
(ii) A decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over the Company, the Borrower or any of
their Subsidiaries, or over all or a substantial part of the Property of the
Company, the Borrower or any of such Subsidiaries shall be entered; or an
interim receiver, trustee or other custodian of the Company, the Borrower or any
of such Subsidiaries or of all or a substantial part of the Property of the
Company, the Borrower or any of such Subsidiaries shall be appointed or a
warrant of attachment, execution or similar process against any substantial part
of the Property of any of the Company, the Borrower or any of such Subsidiaries
shall be issued and any such event shall not be stayed, dismissed, bonded or
discharged within sixty (60) days after entry, appointment or issuance; or the
respective board of directors of any of the Company or Limited Partners of the
Borrower or the board of directors or partners of any of Borrower's Subsidiaries
(or any committee thereof) adopts any resolution or otherwise authorizes any
action to approve any of the foregoing.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Company,
---------------------------------------------------
the Borrower or any of their Subsidiaries, shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
Property; or the Company, the Borrower or any of such Subsidiaries shall make
any assignment for the benefit of creditors or shall be unable or fail, or admit
in writing its inability, to pay its debts as such debts become due.
(h) Judgments and Unpermitted Liens.
-------------------------------
(i) Any money judgment (other than a money judgment covered by
insurance as to which the insurance company has acknowledged coverage), writ or
warrant of attachment, or similar process against the Borrower or any of its
Subsidiaries or any of their respective assets involving in any case an amount
in excess of $2,000,000 (other than with respect to Claims arising out of
non-recourse Indebtedness) is entered and shall remain undischarged, unvacated,
unbonded or unstayed for a period of sixty (60) days or in any event later than
five (5) days prior to the date of any proposed sale thereunder.
(ii) A federal, state, local or foreign tax Lien is filed against the
Borrower which is not discharged of record, bonded over or otherwise secured to
the satisfaction of the Administrative Agent within sixty (60) days after the
filing thereof or the date upon which the Administrative Agent receives actual
knowledge of the filing thereof for an amount which, either separately or when
aggregated with the amount of any judgments described in clause (i) above,
equals or exceeds $2,000,000.
(iii) An Environmental Lien is filed against any Project with respect
to Claims in an amount which, either separately or when aggregated with the
amount of all other such Environmental Liens, equals or exceeds $2,000,000.
(i) Dissolution. Any order, judgment or decree shall be entered
against the Borrower decreeing its involuntary dissolution or split up; or the
Borrower shall otherwise dissolve or cease to exist except as specifically
permitted by this Agreement.
(j) Loan Documents. At any time, for any reason, any Loan Document
--------------
ceases to be in full force and effect or the Borrower seeks to repudiate its
obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event occurs which
-----------------------
the Administrative Agent believes could subject any of the Borrower or any ERISA
Affiliate to liability in excess of $500,000.
(l) Waiver Application. The plan administrator of any Benefit Plan
------------------
applies under Section 412(d) of the Code for a waiver of the minimum funding
standards of Section 412(a) of the Internal Revenue Code and the Administrative
Agent believes that the substantial business hardship upon which the
application for the waiver is based could subject either the Borrower or any
ERISA Affiliate to liability in excess of $500,000.
(m) Material Adverse Effect. An event shall occur which has a Material
-----------------------
Adverse Effect.
(n) Certain Defaults Pertaining to the Company. The Company shall fail
------------------------------------------
to comply with Sections 9.9, or 7.1(a)(ii), (b), (d), (l), or (o).
(o) Merger or Liquidation of the Company or the Borrower. The Company
----------------------------------------------------
shall merge or liquidate with or into any other Person and, as a result thereof
and after giving effect thereto, the Company or Reckson is not the surviving
Person. The Borrower shall merge or liquidate with or into any other Person and,
as a result thereof and after giving effect thereto the Borrower or Reckson is
not the surviving Person.
An Event of Default shall be deemed "continuing" until cured or waived
in writing in accordance with Section 14.7.
11.2. Rights and Remedies.
-------------------
(a) Acceleration and Termination. Upon the occurrence of any Event of
----------------------------
Default described in Sections 11.1(f) or 11.1(g), the Commitments shall
automatically and immediately terminate and the unpaid principal amount of, and
any and all accrued interest on, the Obligations and all accrued fees shall
automatically become immediately due and payable, with out presentment, demand,
or protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower, and, upon the occurrence and during the continuance of any other
Event of Default, the Administrative Agent shall at the request, or may with the
consent, of the Lenders whose Pro Rata Shares, in the aggregate, are greater
than fifty-one percent (51%), by written notice to the Borrower, (i) declare
that the Commitments are terminated, whereupon the Commitments and the
obligation of each Lender to make any Loan hereunder shall immediately
terminate, and/or (ii) declare the unpaid principal amount of and any and all
accrued and unpaid interest on the Obligations to be, and the same shall
thereupon be, immediately due and payable, without presentment, demand, or
protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower.
(b) Rescission. If at any time after termination of the Commitments
----------
and/or acceleration of the maturity of the Loans, the Borrower shall pay all
arrears of interest and all payments on account of principal of the Loans which
shall have become due otherwise than by acceleration (with interest on principal
and, to the extent permitted by law, on overdue interest, at the rates specified
in this Agreement) and all Events of Default and Potential Events of Default
(other than nonpayment of principal of and accrued interest on the Loans due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to Section 14.7, then upon the written consent of the Requisite Lenders and
written notice to the Borrower, the termination of the Commitments and/or the
acceleration and their consequences may be rescinded and annulled; but such
action shall not affect any subsequent Event of Default or Potential Event of
Default or impair any right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind the Lenders to a decision which
may be made at the election of the Requisite Lenders; they are not intended to
benefit the Borrower and do not give the Borrower the right to require the
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are met.
(c) Enforcement. The Borrower acknowledges that in the event the
-----------
Borrower or any of its Subsidiaries fails to perform, observe or discharge any
of their respective obligations or liabilities under this Agreement or any
other Loan Document, any remedy of law may prove to be inadequate relief to the
Administrative Agent and the other Lenders; therefore, the Borrower agrees that
the Administrative Agent and the other Lenders shall be entitled to temporary
and permanent injunctive relief in any such case without the necessity of
proving actual damages.
ARTICLE XII
THE AGENTS
12.1. Appointment. (a) Each Lender hereby designates and appoints UBS
-----------
as the Administrative Agent and WDR as the Arranger and the Book Manager under
this Agreement, and each Lender hereby irrevocably authorizes the Administrative
Agent, the Arranger and the Book Manager to take such actions on its behalf
under the provisions of this Agreement and the Loan Documents and to exercise
such powers as are set forth herein or therein together with such other powers
as are reasonably incidental thereto. The Administrative Agent, the Arranger and
the Book Manager each agrees to act as such on the express conditions contained
in this Article XII.
(b) The provisions of this Article XII are solely for the benefit of
the Administrative Agent, the Arranger, the Book Manager and the other Lenders,
and neither the Borrower, the Company nor any Subsidiary of the Borrower shall
have any rights to rely on or enforce any of the provisions hereof (other than
as expressly set forth in Section 12.7). In per forming its respective functions
and duties under this Agreement, the Administrative Agent, the Arranger and the
Book Manager shall act solely as agents of the Lenders and do not assume and
shall not be deemed to have assumed any obligation or relationship of agency,
trustee or fiduciary with or for the Company, the Borrower or any Subsidiary of
the Borrower. The Administrative Agent, the Arranger and the Book Manager may
perform any of their respective duties hereunder, or under the Loan Documents,
by or through their respective agents or employees.
12.2. Nature of Duties. The Administrative Agent, the Arranger and the
----------------
Book Manager shall not have any duties or responsibilities except those
expressly set forth in this Agreement or in the Loan Documents. The duties of
the Administrative Agent, the Arranger and the Book Manager shall be mechanical
and administrative in nature. None of the Administrative Agent, the Arranger or
the Book Manager shall have by reason of this Agreement a fiduciary relationship
in respect of any Lender. Nothing in this Agreement or any of the Loan
Documents, expressed or implied, is intended to or shall be construed to impose
upon the Administrative Agent, the Arranger or the Book Manager any obligations
in respect of this Agreement or any of the Loan Documents except as expressly
set forth herein or therein. The Administrative Agent, the Arranger and the Book
Manager each hereby agrees that its duties shall include providing copies of
documents received by such Agent from the Borrower which are reasonably
requested by any Lender, furnishing copies of documents to each Lender, upon
request, of documents sent by the Agent to the Borrower and promptly notifying
each Lender upon its obtaining actual knowledge of the occurrence of the Event
of Default hereunder. In addition, the Administrative Agent shall deliver to
each Lender, promptly after receipt thereof, copies of those documents and
reports received by it pursuant to Sections 8.2 (other than clause (b)(iv)) and
8.3.
12.3. Right to Request Instructions. The Administrative Agent, the
-----------------------------
Arranger and the Book Manager may at any time request instructions from the
Lenders with respect to any actions or approvals which by the terms of any of
the Loan Documents the Agent is permitted or required to take or to grant, and
the Agent shall be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability whatsoever to any
Person for refraining from any action or withholding any approval under any of
the Loan Documents until it shall have received such instructions from those
Lenders from whom the Agent is required to obtain such instructions for the
pertinent matter in accordance with the Loan Documents. Without limiting the
generality of the foregoing, the Agent shall take any action, or refrain from
taking any action, which is permitted by the terms of the Loan Documents upon
receipt of instructions from those Lenders from whom such Agent is required to
obtain such instructions for the pertinent matter in accordance with the Loan
Documents, provided, that no Lender shall have any right of action whatsoever
against the Administrative Agent, the Arranger or the Book Manager as a result
of such Agent acting or refraining from acting under the Loan Documents in
accordance with the instructions of the Requisite Lenders or, where required by
the express terms of this Agreement, a greater proportion of the Lenders.
12.4. Reliance. The Administrative Agent, the Arranger and the Book
--------
Manager shall each be entitled to rely upon any written notices, statements,
certificates, orders or other documents believed by it in good faith to be
genuine and correct and to have been signed, sent or made by the proper Person,
and with respect to all matters pertaining to this Agreement or any of the Loan
Documents and its duties hereunder or thereunder, upon advice of legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it.
12.5. Indemnification. To the extent that the Administrative Agent,
---------------
the Arranger or the Book Manager is not reimbursed and indemnified by the
Borrower the Lenders will reimburse and indemnify such Agent for and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, and reasonable costs, expenses or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by, or asserted against
it in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents, in proportion to each
Lender's Pro Rata Share. Notwithstanding anything to the contrary contained
herein, none of the Administrative Agent, the Arranger or the Book Manager shall
be indemnified to the extent such liabilities, obligations, losses, damages,
penalties, actions, judgments, suite, costs and expenses result from such
Person's gross negligence, willful misconduct or breach of this Article XII.
Such Agent agrees to refund to the Lenders any of the foregoing amounts paid to
it by the Lenders which amounts are subsequently recovered by such Agent from
the Borrower or any other Person on behalf of the Borrower. The obligations of
the Lenders under this Section 12.5 shall survive the payment in full of the
Loans and all other Obligations and the termination of this Agreement.
12.6. Agent Individually. With respect to their respective Pro Rata
------------------
Share of the Commitments hereunder, if any, and the Loans made by them, if any,
the Administrative Agent, the Arranger or the Book Manager shall have and may
exercise the same rights and powers hereunder and are subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Lender. The terms "Lenders" or "Requisite Lenders" or any similar terms shall,
unless the context clearly otherwise indicates, include UBS in its respective
individual capacity as a Lender or as one of the Requisite Lenders. UBS and each
of its respective Affiliates may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with the
Borrower or any of its Subsidiaries as if UBS was not acting as the
Administrative Agent.
12.7. Successor Agents.
----------------
(a) Resignation. The Agent may resign from the performance of all its
-----------
functions and duties hereunder at any time by giving at least thirty (30)
Business Days' prior written notice to the Borrower and the other Lenders,
unless applicable law requires a shorter notice period or that there be no
notice period, in which instance such applicable law shall control. Such
resignation shall take effect upon the acceptance by a successor Agent of
appointment pursuant to this Section 12.7.
(b) Appointment by Requisite Lenders. Upon any such resignation
--------------------------------
becoming effective, (i) if the Arranger shall then be acting with respect to
this Agreement, the Arranger shall become the Administrative Agent or (ii) if no
Arranger shall then be acting with respect to this Agreement, the Requisite
Lenders shall have the right to appoint a successor Administrative Agent
selected from among the Lenders with the prior written consent of the Borrower
which shall not be unreasonably withheld.
(c) Appointment by Retiring Agent. If a successor Administrative Agent
-----------------------------
shall not have been appointed within the thirty (30) Business Day or shorter
period provided in paragraph (a) of this Section 12.7, the retiring Agent shall
then appoint a successor Agent who shall serve as Administrative Agent until
such time, if any, as the Requisite Lenders appoint a successor Agent as
provided above with the prior written consent of the Borrower which shall not be
unreasonably withheld.
(d) Rights of the Successor and Retiring Agents. Upon the acceptance
-------------------------------------------
of any appointment as Administrative Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article XII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Agent under this Agreement.
12.8. Relations Among the Lenders. Each Lender agrees that it will not
---------------------------
take any legal action, nor institute any actions or proceedings, against the
Borrower or any other obligor hereunder with respect to any of the Obligations,
without the prior written consent of the Lenders. Without limiting the
generality of the foregoing, no Lender may accelerate or otherwise enforce its
portion of the Obligations, or unilaterally terminate its Commitment except in
accordance with Section 11.2(a).
12.9. Standard of Care. The Administrative Agent and the Arranger
----------------
shall administer the Loans in the same manner that the Agent administers loans
made for its own account.
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes.
-----
(a) Payment of Taxes. Any and all payments by the Borrower hereunder
----------------
or under the Notes or other document evidencing any Obligations of such Person
shall be made, in accordance with Section 4.2, free and clear of and without
reduction for any and all present or future taxes, levies, imposts, deductions,
charges, withholdings, and all stamp or documentary taxes, excise taxes, ad
valorem taxes and other taxes which arise from the execution, delivery or
registration, or from payment or performance under, or otherwise with respect
to, any of the Loan Documents or the Commitments and all other liabilities with
respect thereto excluding, in the case of each Lender, taxes imposed on or
measured by net income or overall gross receipts and capital and franchise taxes
imposed on it by (i) the United States, (ii) the Govern mental Authority of the
jurisdiction in which such Lender's Applicable Lending Office is located or any
political subdivision thereof or (iii) the Governmental Authority in which such
Person is organized, managed and controlled or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges and
withholdings being hereinafter referred to as "Taxes"). Except as otherwise
provided herein, if the Borrower shall be required by law to withhold or deduct
any Taxes from or in respect of any sum payable hereunder or under any such Note
or document to any Lender, (x) the sum payable to such Lender shall be increased
as may be necessary so that after making all required withholding or deductions
(including withholding or deductions applicable to additional sums payable under
this Section 13.1) such Lender receives an amount equal to the sum it would have
received had no such withholding or deductions been made, (y) the Borrower shall
make such withholding or deductions, and (z) the Borrower shall pay the full
amount withheld or deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) Indemnification. Except as otherwise provided herein, the Borrower
---------------
will indemnify each Lender against, and reimburse each within ten (10) Business
Days after written demand for, the full amount of all Taxes (including, without
limitation, any Taxes imposed by any Governmental Authority on amounts payable
under this Section 13.1 and any additional income or franchise taxes resulting
therefrom) incurred or paid by such Lender and any liability (including
penalties, interest, and out-of-pocket expenses paid to third parties) arising
therefrom or with respect thereto, whether or not such Taxes were lawfully
payable, to the extent not paid by the Borrower pursuant to Section 13.1 hereof.
A certificate as to any additional amount payable to any Person under this
Section 13.1 submitted by it to the Borrower shall, absent manifest error, be
final, conclusive and binding upon all parties here to. Each Lender agrees,
within a reasonable time after receiving a written request from the Borrower to
provide the Borrower and the Administrative Agent with such certificates and
other documents as are reasonably required, and take such other actions as are
reasonably necessary to claim such exemptions as such Lender may be entitled to
claim in respect of all or a portion of any Taxes which are otherwise required
to be paid or deducted or withheld pursuant to this Section 13.1 in respect of
any payments under this Agreement or under the other Loan Documents. If any
Lender receives any refund with respect to any Taxes, such Lender shall promptly
remit such refund to the Borrower.
(c) Receipts. Within thirty (30) days after the date of any payment of
--------
Taxes by the Borrower will furnish to the Administrative Agent, at its address
referred to in Section 14.8, the original or a certified copy of a receipt
evidencing payment thereof.
(d) Foreign Bank Certifications. (i) Each Lender that is not created
---------------------------
or organized under the laws of the United States or a political subdivision
thereof shall deliver to each of the Borrower and the Administrative Agent on
the Closing Date or the date on which such Lender becomes a Lender pursuant to
Section 14.1 hereof a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender to the effect that such Lender is
eligible to receive payments hereunder and under the Notes without deduction or
withholding of United States federal income tax (I) under the provisions of an
applicable tax treaty concluded by the United States (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 1001
(or any successor or substitute form or forms)) or (II) under Sections
1442(c)(1) and 1442(a) of the Internal Revenue Code (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 4224
(or any successor or substitute form or forms)).
(ii) Each Lender further agrees to deliver to each of the Borrower and
the Administrative Agent from time to time, a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender before or
promptly upon the occurrence of any event requiring a change in the most recent
certificate previously delivered by it to the Borrower and the Administrative
Agent pursuant to this Section 13.1(d). Each certificate required to be
delivered pursuant to this Section 13.1(d)(ii) shall certify as to one of the
following:
(A) that such Lender can continue to receive payments hereunder and
under the Notes without deduction or withholding of United States federal
income tax;
(B) that such Lender cannot continue to receive payments hereunder
and under the Notes without deduction or withholding of United States
federal income tax as specified therein but does not require additional
payments pursuant to Section 13.1(a) because it is entitled to recover the
full amount of any such deduction or withholding from a source other than
the Borrower; or
(C) that such Lender is no longer capable of receiving payments
hereunder and under the Notes without deduction or withholding of United
States federal income tax as specified therein and that it is not capable
of recovering the full amount of the same from a source other than the
Borrower.
Each Lender agrees to deliver to each of the Borrower and the Administrative
Agent further duly completed copies of the above-mentioned IRS forms on or
before the earlier of (x) the date that any such form expires or becomes
obsolete or other wise is required to be resubmitted as a condition to obtaining
an exemption from withholding from United States federal income tax and (y)
fifteen (15) days after the occurrence of any event requiring a change in the
most recent form previously delivered by such Lender to the Borrower and the
Administrative Agent, unless any change in treaty, law, regulation, or official
interpretation thereof which would render such form inapplicable or which would
prevent the Lender from duly completing and delivering such form has occurred
prior to the date on which any such delivery would otherwise be required and the
Lender promptly advises the Borrower that it is not capable of receiving
payments hereunder and under the Notes without any deduction or withholding of
United States federal income tax.
(iii) Notwithstanding anything to the contrary contained in this
Section 13.1, the Borrower will not be required to make any additional payment
to or for the account of any Lender under Section 13.1(a) or (b) by reason of
(x) a breach by such Lender of any certification or representation set forth in
any form furnished to the Borrower under Section 13.1(d), or (y) such Lender's
failure or inability to furnish under Section 13.1(d) an original of an
extension or renewal of a Form 1001 or Form 4224 (or successor form), as
applicable, unless such failure or inability results from a change (after the
date such Lender became a Lender party hereto) in any applicable law or
regulation or in the interpretation thereof by any regulatory authority
(including without limitation any change in any applicable tax treaty).
13.2. Increased Capital. If after the date hereof any Lender
-----------------
determines that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or quasi-
governmental authority exercising jurisdiction, power or control over any Lender
or banks or financial institutions generally (whether or not having the force of
law), compliance with which affects the amount of capital required or expected
to be maintained by such Lender or any corporation controlling such Lender and
(ii) the amount of such capital is increased by or based upon the making or
maintenance by any Lender of its Loans, any Lender's participation in or
obligation to participate in the Loans or other advances made hereunder or the
existence of any Lender's obligation to make Loans, then, in any such case,
within ten (10) Business Days after written demand by such Lender (with a copy
of such demand to the Administrative Agent), the Borrower shall immediately pay
to the Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation therefor. Such demand shall be accompanied by a
statement as to the amount of such compensation and include a brief summary of
the basis for such demand. Such statement shall be conclusive and binding for
all purposes, absent manifest error.
13.3. Changes; Legal Restrictions. If after the date hereof any Lender
---------------------------
determines that the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, or over banks or financial institutions generally (whether or not
having the force of law), compliance with which:
(a) subjects a Lender (or its Applicable Lending Office or Eurodollar
Affiliate) to charges (other than taxes) of any kind which such Lender
reasonably determines to be applicable to the Commitments of the Lenders to
make Eurodollar Rate Loans or change the basis of taxation of payments to
that Lender of principal, fees, interest, or any other amount payable
hereunder with respect to Eurodollar Rate Loans (other than taxes excluded
in Section 13.1(a) hereof); or
(b) imposes, modifies, or holds applicable, in the determination of a
Lender, any reserve, special deposit, compulsory loan, FDIC insurance or
similar requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, commitments
made, or other credit ex tended by, or any other acquisition of funds by, a
Lender or any Applicable Lending Office or Eurodollar Affiliate of that
Lender in respect of Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining the Loans or its Commitment or to reduce any
amount receivable thereunder; then, in any such case, within ten (10) Business
Days after written demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall immediately pay to the Administrative
Agent for the account of such Lender, from time to time as specified by such
Lender, such amount or amounts as may be necessary to compensate such Lender or
its Eurodollar Affiliate for any such additional cost incurred or reduced amount
received. Such demand shall be accompanied by a statement as to the amount of
such compensation and include a brief summary of the basis for such demand. Such
statement shall be conclusive and binding for all purposes, absent manifest
error.
13.4. Replacement of Certain Lenders. In the event a Lender (a
------------------------------
"Designated Lender") shall have (i) requested additional compensation from the
Borrower under Section 13.1 or under Section 13.2 or under Section 13.3, (ii)
failed to make its Pro Rata Share of any Loan requested to be made hereby or
(iii) failed to make any Loan at the Eurodollar Rate, the Borrower may, at its
sole election, make written demand on such Designated Lender (with a copy to the
Administrative Agent) for the Designated Lender to assign, and such Designated
Lender shall assign pursuant to one or more duly executed Assignment and
Acceptances to one or more Eligible Assignees which the Borrower or the
Administrative Agent shall have identified for such purpose, all of such
Designated Lender's right and obligations under this Agreement, the Notes and
the other Loan Documents (including, without limitation, its Commitment and all
Loans owing to it) in accordance with Section 14.1. All out-of-pocket expenses
incurred by the Administrative Agent in connection with the foregoing shall be
for the sole account of the Borrower and shall constitute Obligations hereunder.
In no event shall Borrower's election under the provisions of this Section 13.4
affect its obligation to pay the additional compensation required under either
Section 13.1, Section 13.2 or Section 13.3.
13.5. Mitigation. Each Lender shall notify the Borrower of any event
----------
occurring after the date of this Agreement entitling such Lender to
compensation under Sections 13.1, 13.2 or 13.3 as promptly as practicable, but
in any event, within 45 days, after such Lender obtains actual knowledge
thereof; provided that (i) if any Lender fails to give such notice within 45
days after it obtains actual knowledge of such an event, such Lender shall, with
respect to compensation payable pursuant to Sections 13.1, 13.2 or 13.3 in
respect of any costs resulting from such event, only be entitled to payment
under Sections 13.1, 13.2 or 13.3 for costs incurred from and after the date 45
days prior to the date that such Lender does give such notice and (ii) each
Lender will designate a different Applicable Lending Office for the Loans of
such Lender affected by such event if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the reasonable
judgment of such Lender, be disadvantageous to such Lender.
ARTICLE XIV
MISCELLANEOUS
14.1. Assignments and Participations.
------------------------------
(a) Assignments. No assignments or participations of any Lender's
-----------
rights or obligations under this Agreement shall be made except in accordance
with this Section 14.1. Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all of its rights and obligations with respect to the Loans) in accordance with
the provisions of this Section 14.1.
(b) Limitations on Assignments. For so long as no Event of Default has
--------------------------
occurred and is continuing, each assignment shall be subject to the following
conditions: (i) each assignment shall be of a constant, and not a varying,
ratable percentage of all of the assigning Lender's rights and obligations
under this Agreement and, in the case of a partial assignment, shall be in a
minimum principal amount of $5,000,000 (and the assignor shall maintain a
minimum amount of $5,000,000 for its own account unless the assignor shall
assign or participate its entire interest), (ii) each such assignment shall be
to an Eligible Assignee, (iii) each assignment shall be subject to the
reasonable approval of the Agent and the Borrower, (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, and (v)
each Agent shall maintain a minimum Commitment in an amount greater than the
Commitment of any other Lender. Upon the occurrence and continuance of an Event
of Default, none of the foregoing restrictions on assignments shall apply,
provided, however, that while an Event of Default (other than an Event of
Default that shall have required that the Administrative Agent shall have
delivered a notice of the underlying default) shall be continuing but prior to
acceleration of the Loans, the applicable Lender shall give the Borrower five
(5) days' written notice by telecopy of its intention to assign any or all of
its interest in this Agreement. Upon such execution, delivery, acceptance and
recording in the Register, from and after the effective date specified in each
Assignment and Acceptance and agreed to by the Administrative Agent, (A) the
assignee thereunder shall, in addition to any rights and obligations hereunder
held by it immediately prior to such effective date, if any, have the rights and
obligations hereunder that have been assigned to it pursuant to such Assignment
and Acceptance and shall, to the fullest extent permitted by law, have the same
rights and benefits hereunder as if it were an original Lender hereunder, (B)
the assigning Lender shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of such assigning Lender's rights and obligations under this Agreement, the
assigning Lender shall cease to be a party hereto) and (C) the Borrower shall
execute and deliver to the assignee thereunder a Note evidencing its obligations
to such assignee with respect to the Loans.
(c) The Register. The Administrative Agent shall maintain at its
------------
address referred to in Section 14.8 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register (the "Register") for the
recordation of the names and addresses of the Lenders, the Commitment of, and
the principal amount of the Loans under the Commitments owing to, each Lender
from time to time and whether such Lender is an original Lender or the assignee
of another Lender pursuant to an Assignment and Acceptance. The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower the Administrative Agent and the other Lenders and each
other party to a Loan Document may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Fee. Upon its receipt of an Assignment and Acceptance executed by
---
the assigning Lender and an Assignee and a processing and recordation fee of
$3,500 (payable by the assignee to the Administrative Agent), the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
compliance with this Agreement and in substantially the form of EXHIBIT A
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and the other Lenders.
(e) Participations. Each Lender may sell participations to one or
--------------
more other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities under this Agreement
(including, without limitation, all or a portion of any or all of its
Commitment hereunder and the Loans owing to it); provided, however, that (i)
such Lender's obligations under this Agreement (including, without limitation,
its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, (iv) each
participation shall be in a minimum amount of $5,000,000, and (v) such
participant's rights to agree or to restrict such Lender's ability to agree to
the modification, waiver or release of any of the terms of the Loan Documents,
to consent to any action or failure to act by any party to any of the Loan
Documents or any of their respective Affiliates, or to exercise or refrain from
exercising any powers or rights which any Lender may have under or in respect of
the Loan Documents, shall be limited to the right to consent to (A) increase in
the Commitment of the Lender from whom such participant purchased a
participation, (B) reduction of the principal of, or rate or amount of interest
on the Loans subject to such participation (other than by the payment or
prepayment thereof), (C) postponement of any date fixed for any payment of
principal of, or interest on, the Loan(s) subject to such participation and (D)
release of any guarantor of the Obligations.
(f) Information Regarding the Borrower. Any Lender may, subject to the
----------------------------------
provisions of Section 14.22, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 14.1, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower or its Subsidiaries furnished to such
Lender by the Administrative Agent or by or on behalf of the Borrower.
(g) Payment to Participants. Anything in this Agreement to the
-----------------------
contrary notwithstanding, in the case of any participation, all amounts payable
by the Borrower under the Loan Documents shall be calculated and made in the
manner and to the parties required hereby as if no such participation had been
sold.
(h) Lenders' Creation of Security Interests. Notwithstanding any other
---------------------------------------
provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, Obligations owing to it and any Note held by
it) in favor of any Federal Reserve bank in accordance with Regulation A of the
Federal Reserve Board.
14.2. Expenses.
--------
(a) Generally. The Borrower agrees promptly upon demand to pay, or
---------
reimburse the Administrative Agent for the reasonable fees, expenses and
disbursements of Skadden, Arps, Slate, Meagher & Flom LLP (but not of other
legal counsel) and for all other reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent or the Arranger in connection with (i) the
preparation, negotiation, and execution of the Loan Documents; (ii) the
preparation, negotiation, execution and interpretation of this Agreement
(including, without limitation, the satisfaction or attempted satisfaction of
any of the conditions set forth in Article VI), the Loan Documents, and the
making of the Loans hereunder; (iii) any amendments, consents, waivers,
assignments, restatements, or supplements to any of the Loan Documents and the
preparation, negotiation, and execution of the same; and (iv) any other
amendments, modifications, agreements, assignments, restatements or supplements
to any of the Loan Documents requested by Borrower and the preparation,
negotiation, and execution of the same.
(b) After Default. The Borrower further agrees to pay or reimburse the
-------------
Administrative Agent, the Arranger and each of the Lenders upon demand for all
reasonable out-of-pocket costs and expenses, including, without limitation,
reasonable attorneys' fees (including allocated costs of internal counsel and
costs of settlement) incurred by such entity after the occurrence and during the
continuance of an Event of Default (i) in enforcing any Loan Document or
Obligation, the collection of any Obligation or exercising or enforcing any
other right or remedy available by reason of such Event of Default; or (ii) in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or in any insolvency
or bankruptcy proceeding; (iii) in commencing, defending or intervening in any
litigation or in filing a petition, complaint, answer, motion or other pleadings
in any legal proceeding relating to the Obligations, a Project, any of the
Consolidated Businesses and related to or arising out of the transactions
contemplated hereby or by any of the other Loan Documents; and (iv) in taking
any other action in or with respect to any suit or proceeding (bankruptcy or
otherwise) described in clauses (i) through (iii) above.
14.3. Indemnity. The Borrower further agrees (a) to defend, protect,
---------
indemnify, and hold harmless the Administrative Agent, the Arranger and each
and all of the other Lenders and each of their respective officers, directors,
employees, attorneys and agents (collectively, the "Indemnitees") from and
against any and all liabilities, obligations, losses (other than loss of
profits), damages, penalties, actions, judgments, suits, claims, reasonable
costs, reasonable expenses and reasonable disbursements (excluding any taxes and
including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of (i) this Agreement or the other Loan
Documents, the making of the Loans hereunder, the use or intended use of the
proceeds of the Loans hereunder, or any of the other transactions contemplated
by the Loan Documents, or (ii) any Liabilities and Costs relating to violation
of any Environmental, Health or Safety Requirements of Law, the past, present
or future operations of the Borrower, any of its Subsidiaries or any of their
respective predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective Property of the
Borrower or any of its Subsidiaries, the presence of asbestos-containing
materials at any respective Property of the Borrower or any of its Subsidiaries,
or the Release or threatened Release of any Contaminant into the environment
(collectively, the "Indemnified Matters"); provided, however, the Borrower
shall have no obligation to an Indemnitee hereunder with respect to Indemnified
Matters caused by or resulting from the willful misconduct or gross negligence
of such Indemnitee, as determined by a court of competent jurisdiction in a
non-appealable final judgment; and (b) not to assert any claim against any of
the Indemnitees, on any theory of liability, for consequential or punitive
damages arising out of, or in any way in connection with, the Commitments, the
Credit Obligations, or the other matters governed by this Agreement and the
other Loan Documents. To the extent that the undertaking to indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, the Borrower shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
14.4. Change in Accounting Principles. If any change in the accounting
-------------------------------
principles used in the preparation of the most recent financial statements
referred to in Sections 8.1 or 8.2 are hereafter required or permitted by the
rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
Company or the Borrower as applicable, with the agreement of its independent
certified public accountants and such changes result in a change in the method
of calculation of any of the covenants, standards or terms found in Article X,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating compliance with such covenants, standards and terms
by the Borrower shall be the same after such changes as if such changes had not
been made; provided, however, no change in GAAP that would affect the method of
calculation of any of the covenants, standards or terms shall be given effect in
such calculations until such provisions are amended, in a manner satisfactory to
the Administrative Agent and the Borrower, to so reflect such change in
accounting principles.
14.5. Intentionally Omitted.
---------------------
14.6. Ratable Sharing. The Lenders agree among themselves that (i)
---------------
with respect to all amounts received by them which are applicable to the payment
of the Obligations (excluding the costs and fees described in Section 5.2(f) and
Article XIII) equitable adjustment will be made so that, in effect, all such
amounts will be shared among them ratably in accordance with their Pro Rata
Shares, whether received by voluntary payment, by the exercise of the right of
setoff or banker's lien, by counterclaim or cross-action or by the enforcement
of any or all of the Obligations (excluding the costs and fees described in
Section 5.2(f) and Article XIII), (ii) if any of them shall by voluntary payment
or by the exercise of any right of counterclaim, setoff, banker's lien or
otherwise, receive payment of a proportion of the aggregate amount of the
Obligations held by it, which is greater than the amount which such Lender is
entitled to receive hereunder, the Lender receiving such excess payment shall
purchase, without recourse or warranty, an undivided interest and participation
(which it shall be deemed to have done simultaneously upon the receipt of such
payment) in such Obligations owed to the others so that all such recoveries with
respect to such Obligations shall be applied ratably in accordance with their
Pro Rata Shares; provided, however, that if all or part of such excess payment
received by the purchasing party is thereafter recovered from it, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such party to the extent necessary to adjust
for such recovery, but without interest except to the extent the purchasing
party is required to pay interest in connection with such recovery. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 14.6 may, to the fullest extent permitted by law,
exercise all its rights of payment with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the amount of such
participation.
14.7. Amendments and Waivers.
----------------------
(a) General Provisions. Unless otherwise provided for or required in
------------------
this Agreement, no amendment or modification of any provision of this Agreement
or any of the other Loan Documents shall be effective without the written
agreement of the Requisite Lenders (which the Requisite Lenders shall have the
right to grant or withhold in their sole discretion) and the Borrower. In the
event that the Administrative Agent shall request the agreement of the Lenders
to any amendment, modification or waiver, if any Lender shall fail to respond to
any such request within fifteen (15) days after receipt of such request, such
Lender's approval thereto shall be deemed to have been given; provided, however,
that such request shall state, in capital letters that "FAILURE TO RESPOND TO
THIS REQUEST WITHIN FIFTEEN (15) DAYS AFTER RECEIPT, SHALL BE DEEMED CONSENT TO
THE ENCLOSED REQUEST". No termination or waiver of any provision of this
Agreement or any of the other Loan Documents, or consent to any departure by the
Borrower therefrom, shall be effective without the written concurrence of the
Requisite Lenders, which the Requisite Lenders shall have the right to grant or
withhold in their sole discretion. All amendments, waivers and consents not
specifically reserved to the Administrative Agent, the Arranger or the other
Lenders in Section 14.7(b), 14.7(c), and in other provisions of this Agreement
shall require only the approval of the Requisite Lenders. Any waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which it was given. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances.
(b) Amendments, Consents and Waivers by Affected Lenders. Any
----------------------------------------------------
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender affected thereby as described below:
(i) waiver of any of the conditions specified in Section 6.1 (except
with respect to a condition based upon an other provision of this
Agreement, the waiver of which requires only the concurrence of the
Requisite Lenders),
(ii) increase in the amount of such Lender's Commitment,
(iii) reduction of the principal of, rate or amount of interest on the
Loans, or any fees or other amounts payable to such Lender (other than
by the payment or prepayment thereof), and
(iv) postponement or extension of any date (other than the Termination
Date postponement or extension of which is governed by Section
14.7(c)(i)) fixed for any payment of principal of, or interest on, the
Loans or any fees or other amounts payable to such Lender (except with
respect to any modifications of the application provisions relating to
prepayments of Loans and other Obligations which are governed by
Section 4.2(b)).
(c) Amendments, Consents and Waivers by All Lenders. Any amendment,
-----------------------------------------------
modification, termination, waiver or consent with respect to any of the
following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) postponement of the Termination Date, or increase in the Maximum
Credit Amount to any amount in excess of $130,000,000,
(ii) change in the definition of Requisite Lenders or in the aggregate
Pro Rata Share of the Lenders which shall be required for the Lenders
or any of them to take action hereunder or under the other Loan
Documents,
(iii) amendment of Section 14.6 or this Section 14.7,
(iv) assignment of any right or interest in or under this Agreement or
any of the other Loan Documents by the Borrower,
(v) waiver of any Event of Default under Section 11.1(a), Section
11.1(f) or Section 11.1(g), and
(vi) amendment or release of the Guaranty other than a release of any
Guarantor in connection with the sale, transfer or other disposition
thereof or the refinancing of any Project thereof otherwise permitted
hereunder.
(d) Administrative Agent Authority. Subject to the second succeeding
------------------------------
sentence of this subsection (d), the Administrative Agent may, but shall have no
obligation to, with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Notwithstanding
anything to the contrary contained in this Section 14.7, no amendment,
modification, waiver or consent shall affect the rights or duties of the
Administrative Agent under this Agreement and the other Loan Documents, unless
made in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action. Notwithstanding anything herein to
the contrary, in the event that the Borrower shall have requested, in writing,
that any Lender agree to an amendment, modification, waiver or consent with
respect to any particular provision or provisions of this Agreement or the other
Loan Documents, and such Lender shall have failed to state, in writing, that it
either agrees or disagrees (in full or in part) with all such requests (in the
case of its statement of agreement, subject to satisfactory documentation and
such other conditions it may specify) within fifteen (15) days after such
request, then such Lender hereby irrevocably authorizes the Administrative Agent
to agree or disagree, in full or in part, and in the Administrative Agent's sole
discretion, to such requests on behalf of such Lender as such Lenders'
attorney-in-fact and to execute and deliver any writing approved by the
Administrative Agent which evidences such agreement as such Lender's duly
authorized agent for such purposes.
14.8. Notices. Unless otherwise specifically provided herein, any
-------
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, sent by facsimile transmission or by
courier service or United States certified mail and shall be deemed to have
been given when delivered in person or by courier service, upon receipt of a
facsimile transmission, or four (4) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. Notices to the
Administrative Agent pursuant to Articles II, IV or XII shall not be effective
until received by the Administrative Agent.
For the purposes hereof, the addresses of the parties hereto (until notice of a
change thereof is delivered as provided in this Section 14.8) shall be as set
forth below each party's name on the signature pages hereof or the signature
page of any applicable Assignment and Acceptance, or, as to each party, at such
other address as may be designated by such party in a written notice to all of
the other parties to this Agreement.
14.9. Survival of Warranties and Agreements. All representations and
-------------------------------------
warranties made herein and all obligations of the Borrower in respect of taxes,
indemnification and expense reimbursement shall survive the execution and
delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans and, in the case of any Lender that may assign any
interest in its Commitment or Loans hereunder, shall survive the making of such
assignment, notwithstanding that such assigning Lender may cease to be a
"Lender" hereunder, and, except for the representations and warranties, the
termination of this Agreement other than any of the foregoing set forth in
Section 13.1 or Section 13.2 or Section 13.3 or Section 5.2(f) shall survive for
thirty (30) days after termination of this Agreement.
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative. No
-----------------------------------------------------
failure or delay on the part of the Administrative Agent or any other Lender in
the exercise of any power, right or privilege under any of the Loan Documents
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other right, power or privilege. All rights and remedies existing under
the Loan Documents are cumulative to and not exclusive of any rights or remedies
otherwise available.
14.11. Payments Set Aside. To the extent that the Borrower makes a
------------------
payment or payments to the Administrative Agent, any Arranger or any other
Lender or any such Person exercises its rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party, then to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all right and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
14.12. Severability. In case any provision in or obligation under this
------------
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
14.13. Headings. Section headings in this Agreement are included
--------
herein for convenience of reference only and shall not constitute a part of this
Agreement or be given any substantive effect.
14.14. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
-------------
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.
14.15. Limitation of Liability. No claim may be made by any Lender,
-----------------------
the Arranger, the Administrative Agent, or any other Person against any Lender
(acting in any capacity hereunder) or the Affiliates, directors, officers,
employees, attorneys or agents of any of them for any consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith; and
each Lender, the Arranger and the Administrative Agent hereby waives, releases
and agrees not to sue upon any such claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
14.16. Successors and Assigns. This Agreement and the other Loan
----------------------
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders. Except as otherwise
provided in Section 10.6, the rights hereunder of the Borrower, or any interest
therein, may not be assigned without the written consent of all Lenders.
14.17. Certain Consents and Waivers of the Borrower.
--------------------------------------------
(a) PERSONAL JURISDICTION. (i) EACH OF THE AGENT, THE LENDERS AND THE
---------------------
BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT
SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION OVER APPEALS
OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF
THE AGENTS, THE LENDERS AND THE BORROWER AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
EACH OF THE AGENTS, THE LENDERS AND THE BORROWER WAIVES IN ALL DISPUTES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION
NECESSARY OR APPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT AND THE OTHER
LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE
ADMINISTRATIVE AGENT OR ANY OTHER LENDER. THE BORROWER WAIVES ANY OBJECTION THAT
IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE ADMINISTRATIVE AGENT OR
ANY LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
(b) SERVICE OF PROCESS. THE BORROWER IRREVOCABLY CONSENTS TO THE
------------------
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PROCESS AGENT OR THE BORROWER'S NOTICE ADDRESS SPECIFIED
BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. THE BORROWER IRREVOCABLY
WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET
FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR
THE OTHER LENDERS TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY
OTHER JURISDICTION.
(C) WAIVER OF JURY TRIAL. EACH OF THE AGENT AND THE OTHER LENDERS AND
--------------------
THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
14.18. Counterparts; Effectiveness; Inconsistencies. This Agreement
--------------------------------------------
and any amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against the Borrower and
each Agent and Lender on the Closing Date. This Agreement and each of the other
Loan Documents shall be construed to the extent reasonable to be consistent one
with the other, but to the extent that the terms and conditions of this
Agreement are actually inconsistent with the terms and conditions of any other
Loan Document, this Agreement shall govern.
14.19. Limitation on Agreements. All agreements between the Borrower,
------------------------
the Administrative Agent, the Arranger and each Lender in the Loan Documents are
hereby expressly limited so that in no event shall any of the Loans or other
amounts payable by the Borrower under any of the Loan Documents be directly or
indirectly secured (within the meaning of Regulation U) by Margin Stock.
14.20. Disclaimers. The Administrative Agent, the Arranger and the
-----------
other Lenders shall not be liable to any contractor, subcontractor, supplier,
laborer, architect, engineer, tenant or other party for services performed or
materials supplied in connection with any work performed on the Projects,
including any TI Work. The Administrative Agent, the Arranger and the other
Lenders shall not be liable for any debts or claims accruing in favor of any
such parties against the Borrower or others or against any of the Projects. The
Borrower is not and shall not be an agent of the Agent, the Arranger or the
other Lenders for any purposes and none of the Lenders, the Arranger, or the
Agents shall be deemed partners or joint venturers with Borrower. None of the
Administrative Agent, the Arranger or the other Lenders shall be deemed to be in
privity of contract with any contractor or provider of services to any Project,
nor shall any payment of funds directly to a contractor or subcontractor or
provider of services be deemed to create any third party beneficiary status or
recognition of same by any of the Administrative Agent, the Arranger or the
other Lenders and the Borrower agrees to hold the Administrative Agent, the
Arranger and the other Lenders harmless from any of the damages and expenses
resulting from such a construction of the relationship of the parties or any
assertion thereof.
14.21. Entire Agreement. This Agreement, taken together with all of
----------------
the other Loan Documents, embodies the entire agreement and understanding among
the parties hereto and supersedes all prior agreements and understandings, writ
ten and oral, relating to the subject matter hereof.
14.22. Confidentiality. Each of the Agent, the Arranger and the
---------------
Lenders agrees to keep confidential all non-public information provided to it by
the Borrower pursuant to this Agreement that is designated by the Borrower as
confidential; provided that nothing herein shall prevent the Agents or the
Lenders from disclosing any such information (a) to the Agents, any other Lender
or any Affiliate of any Lender (provided such Affiliate is made aware of the
confidentiality of such information and agrees to keep such information
confidential), (b) to any Assignee, Participant or prospective Assignee or
Participant (provided such Person is made aware of the confidentiality of such
information and agrees to keep such information confidential), (c) to the
employees, directors, agents, attorneys, accountants and other professional
advisors of any Lender, Assignee, Participant, prospective Assignee or
Participant who are advised of the provisions of this Section, (d) upon the
request or demand of any Governmental Authority having or asserting
jurisdiction over either Agent or any Lender, (e) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (f) if requested or required to do so in
connection with the exercise of any remedy hereunder or under any other Loan
Document or (i) upon the advice of counsel that such disclosure is required by
law.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
BORROWER:
METROPOLITAN OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership
By: Metropolitan Partners LLC,
its general partner
By: /s/ Michael Maturo
--------------------------------------
Name:
Title: Executive Vice President and
Chief Financial Officer
Notice Address:
--------------
Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Telephone: 516-694-6900
Telecopy: 516-622-6786
Attention: Michael Maturo
Chief Financial Officer
MORTGAGOR: (for the purposes set forth in Section 7.1(x) and Section 9.13 hereto
- ---------
only)
810 7th AVENUE, L.P.,
a Delaware limited partnership
By: 810 7th Avenue GP LLC,
its general partner
By: Metropolitan Operating
Partnership, L.P.,
its managing member
By: Metropolitan Partners LLC,
its general partner
By: /s/ Michael Maturo
-------------------------------
Name:
Title: Executive Vice President
and Chief Financial
Officer
ADMINISTRATIVE AGENT
- --------------------
AND LENDER: UBS AG, STAMFORD BRANCH
- ----------
By: /s/ Jeffrey Walb
--------------------------
Name:
Title: Executive Director
By: /s/ Jeffrey Walb
---------------------------
Name:
Title: Executive Director
Notice Address, Domestic and
Eurodollar Lending Office:
UBS AG, Stamford Branch
299 Park Avenue
New York, New York 10171
Attn: Ms. Xiomara Martez
Telecopy: (212) 821-4138
Pro Rata Share: 100%
Commitment: $130,000,000
ARRANGER AND
- ------------
BOOK MANAGER: WARBURG DILLON READ
- ------------
By: /s/ Joseph Bassil
--------------------------
Name:
Title: Executive Director
By: /s/ Joseph Bassil
--------------------------
Name:
Title: Executive Director
EXHIBIT A
ASSIGNMENT AND ACCEPTANCE
LIST OF EXHIBITS AND SCHEDULES
------------------------------
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Note
Exhibit C Form of Notice of Borrowing
Exhibit D Form of Notice of Conversion/Continuation
Exhibit E List of Closing Documents
Exhibit F Form of Quarterly/Annual Compliance Certificate to Accompany
Reports
Exhibit G Sample Calculations of Financial Covenants
Schedule A Capitalization Rates
Schedule B Projects
Schedule 1.1.1 Existing Permitted Liens
Schedule 1.1.2 Permitted Securities Options
Schedule 6.1(d) Equity Changes
Schedule 7.1-A Organizational Documents
Schedule 7.1-C Corporate Structure; Outstanding Capital
Stock and Partnership Interests; Partnership Agreement
Schedule 7.1-H Indebtedness for Borrowed Money; Contingent Obligations
Schedule 7.1-I Pending Actions
Schedule 7.1-P Environmental Matters
Schedule 7.1-Q ERISA Matters
Schedule 7.1-R Securities Activities
Schedule 7.1-T Insurance Policies
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms...........................................1
1.2. Computation of Time Periods....................................30
1.3. Accounting Terms...............................................31
1.4. Other Terms....................................................31
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans..........................................................31
2.2. Intentionally Omitted..........................................33
2.3. Use of Proceeds of Loans.......................................33
2.4. Termination Date...............................................33
2.5. Maximum Credit Facility........................................34
2.6. Authorized Agents..............................................34
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Commitments.........................35
4.2. Payments.......................................................37
4.3. Promise to Repay; Evidence of Indebtedness.....................41
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations....................43
5.2. Special Provisions Governing Eurodollar Rate Loans.............45
ARTICLE VI
CONDITIONS TO LOANS
6.1. Conditions Precedent to the Loans..............................50
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower.................52
ARTICLE VIII
REPORTING COVENANTS
8.1. Borrower Accounting Practices..................................64
8.2. Financial Reports..............................................64
8.3. Events of Default..............................................68
8.4. Lawsuits.......................................................68
8.5. Intentionally Omitted..........................................69
8.6. ERISA Notices..................................................69
8.7. Environmental Notices..........................................71
8.8. Labor Matters..................................................72
Page
----
8.9. Notices of Asset Sales and/or Acquisitions.....................73
8.10. Notices of.....................................................73
8.11. Tenant Notifications...........................................73
8.12. Other Reports..................................................74
8.13. SEC Filings....................................................74
8.14. Capital Expenditure Summaries..................................74
8.15. Other Information..............................................74
ARTICLE IX
AFFIRMATIVE COVENANTS
9.1. Existence, Etc.................................................75
9.2. Powers; Conduct of Business....................................75
9.3. Compliance with Laws, Etc......................................75
9.4. Payment of Taxes and Claims....................................75
9.5. Insurance......................................................76
9.6. Inspection of Property; Books and Records; Discussions.........76
9.7. ERISA Compliance...............................................76
9.8. Maintenance of Property........................................77
9.9. Company Status.................................................77
9.10. Ownership of Projects, Minority Holdings and Property..........77
9.11. Ownership of Projects..........................................77
9.12. Negative Pledge................................................77
9.13. Affirmative Covenants of Mortgagor.............................78
ARTICLE X
NEGATIVE COVENANTS
10.1. Sale of Projects...............................................78
10.2. Intentionally Omitted..........................................78
10.3. Indebtedness...................................................78
10.4. Conduct of Business............................................78
10.5. Transactions with Partners and Affiliates......................79
10.6. Restriction on Fundamental Changes.............................79
10.7. Margin Regulations; Securities Laws............................79
10.8. ERISA..........................................................79
10.9. Organizational Documents.......................................80
10.10. Fiscal Year...................................................81
10.11. Financial Covenants...........................................81
10.12. Pro Forma Calculations........................................82
10.13. Negative Covenants with respect to the Company................83
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default.............................................84
11.2. Rights and Remedies...........................................87
ARTICLE XII
THE AGENTS
12.1. Appointment...................................................89
12.2. Nature of Duties..............................................89
Page
----
12.3. Right to Request Instructions.................................90
12.4. Reliance......................................................90
12.5. Indemnification...............................................91
12.6. Agent Individually............................................91
12.7. Successor Agents..............................................92
12.8. Relations Among the Lenders...................................92
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes.........................................................93
13.2. Increased Capital.............................................96
13.3. Changes; Legal Restrictions...................................97
13.4. Replacement of Certain Lenders................................98
13.5. Mitigation....................................................98
ARTICLE XIV
MISCELLANEOUS
14.1. Assignments and Participations................................99
14.2. Expenses.....................................................102
14.3. Indemnity....................................................103
14.4. Change in Accounting Principles..............................104
14.5. Intentionally Omitted........................................104
14.6. Ratable Sharing..............................................104
14.7. Amendments and Waivers.......................................105
14.8. Notices......................................................107
14.9. Survival of Warranties and Agreements........................108
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative........108
14.11. Payments Set Aside...........................................108
14.12. Severability.................................................109
14.13. Headings.....................................................109
14.14. Governing Law................................................109
14.15. Limitation of Liability......................................109
14.16. Successors and Assigns.......................................109
14.17. Certain Consents and Waivers of the Borrower.................110
14.18. Counterparts; Effectiveness; Inconsistencies.................111
14.19. Limitation on Agreements.....................................111
14.20. Disclaimers..................................................111
14.21. Entire Agreement.............................................112
14.22. Confidentiality..............................................112
Exhibit 10.2
GUARANTY AGREEMENT
UNCONDITIONAL GUARANTY OF PAYMENT (this "Guaranty"), is made as of May
24, 1999 by METROPOLITAN PARTNERS LLC (the "Company"), and each of the other
guarantor signatory parties hereto, (collectively, "Guarantor"), in favor of UBS
AG, STAMFORD BRANCH, as administrative agent (the "Agent") for the benefit of
the banks (the "Lenders") that are from time to time parties to that certain
Credit Agreement (the "Credit Agreement"), dated as of May 24, 1999, among
Metropolitan Operating Partnership, L.P. ("Borrower"), the Lenders, Warburg
Dillon Read, as Arranger and Book Manager, and the Agent.
Capitalized terms not otherwise defined in this Guaranty shall have
the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Credit Agreement, the Borrower
has requested that the Lenders make a Loan to the Borrower, to be jointly and
severally guaranteed by the Guarantor and to be evidenced by certain Promissory
Notes (the "Notes"), each dated as of May 24, 1999, in the aggregate principal
amount of $130,000,000, payable by the Borrower to the order of the Lenders
respective to their Pro Rate Shares of the Loans;
WHEREAS, this Guaranty is the "Guaranty" referred to in the Credit
Agreement;
WHEREAS, the Company owns [99.8%] limited and general partnership
interest in the Borrower;
[WHEREAS, after giving effect to the consummation of the Mergers (as
defined in the Credit Agreement) the remaining Guarantors are each directly or
indirectly wholly-owned businesses of the Company or the Borrower]; and
WHEREAS, in order to induce the Agent and the Lenders to make the
Loans to the Borrower, and to satisfy one of the conditions in the Credit
Agreement with respect thereto, Guarantor has agreed to enter into this
Guaranty.
NOW THEREFORE, in consideration of the premises and the direct and
indirect benefits to be derived from the making of the Loans by the Lenders to
the Borrower, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Guarantor hereby agrees as follows:
1. Guarantors, on behalf of themselves and their successors and
assigns, each hereby irrevocably, absolutely, and unconditionally jointly and
severally guarantee the full and punctual payment when due, whether at stated
maturity or otherwise, of all obligations of the Borrower now or hereafter
existing under the Note or under any of the other Loan Documents to which the
Borrower is a party (all such obligations set forth in this Paragraph 1 being
referred to as the "Guaranteed Obligations"), and any and all reasonable costs
and expenses (including, without limitation, reasonable attorneys' fees and
disbursements) incurred by the Agent in enforcing its rights under this
Guaranty.
2. It is agreed that the obligations of Guarantor hereunder are
primary and this Guaranty shall be enforceable against Guarantor and its
successors and as signs without the necessity for any suit or proceeding of any
kind or nature whatsoever brought by the Agent against the Borrower or its
successors or assigns or any other party or against any security for the payment
and performance of the Guaranteed Obligations and, to the extent permitted by
applicable law, without the necessity of any notice of non-payment or
non-observance or of any notice of acceptance of this Guaranty or of any notice
or demand to which Guarantor might otherwise be entitled (including, without
limitation, diligence, presentment, notice of maturity, extension of time,
change in nature or form of the Guaranteed Obligations, acceptance of further
security, release of further security, imposition or agreement arrived at as to
the amount of or the terms of the Guaranteed Obligations, notice of adverse
change in the Borrower's financial condition and any other fact which might
materially increase the risk to Guarantor), all of which Guarantor, to the
extent permitted by applicable law, hereby expressly waives; and, to the extent
permitted by applicable law, Guarantor hereby expressly agrees that the validity
of this Guaranty and the obligations of the Guarantor hereunder shall in no way
be terminated, affected, diminished, modified or impaired by reason of the
assertion of, or the failure to assert by the Agent against the Borrower or its
respective successors or assigns, any of the rights or remedies reserved to the
Agent pursuant to the provisions of the Loan Documents. Guarantor hereby agrees
that, to the extent permitted by applicable law, any notice or directive given
at any time to the Agent which is inconsistent with the waiver in the
immediately preceding sentence shall be void and may be ignored by the Agent,
and, in addition, may not be pleaded or introduced as evidence in any litigation
relating to this Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of this Guaranty, unless the Agent
has specifically agreed otherwise in writing, signed by a duly authorized
officer. Guarantor specifically acknowledges and agrees that the foregoing
waivers are of the essence of this transaction and that, but for this Guaranty
and such waivers, the Agent, the Lenders would not make the requested Loan to
the Borrower.
3. To the extent permitted by applicable law, Guarantor hereby waives,
and covenants and agrees that it will not at any time insist upon, plead or in
any manner whatsoever claim or take the benefit or advantage of, any and all
appraisal, valuation, stay, extension, marshalling-of-assets or redemption
laws, or right of homestead exemption, whether now or at any time hereafter in
force, which may delay, prevent or otherwise affect the performance by Guarantor
of its obligations under, or the enforcement by the Agent of, this Guaranty. To
the extent permitted by applicable law, Guarantor further covenants and agrees
not to set up or claim any defense, counterclaim, offset, set-off or other
objection of any kind to any action, suit or proceeding in law, equity or
otherwise, or to any demand or claim that may be instituted or made by the Agent
other than the defense of the actual timely payment and performance by the
Borrower of the Guaranteed Obligations hereunder. Guarantor represents, warrants
and agrees that, as of the date hereof, its obligations under this Guaranty are
not subject to any counterclaims, offsets or defenses against the Agent of any
kind.
4. The provisions of this Guaranty are for the benefit of the Agent on
behalf of the Lenders and their successors and permitted assigns, and nothing
herein contained shall impair as among the Borrower and the Agent the
obligations of the Borrower under the Loan Documents.
5. This Guaranty shall be a continuing, unconditional and absolute
guaranty and, to the extent permitted by applicable law, the liability of
Guarantor hereunder shall in no way be terminated, affected, modified, impaired
or diminished by reason of the happening, from time to time, of any of the
following, although without notice or the further consent of Guarantor:
(i) any assignment, amendment, modification or waiver of or change in
any of the terms, covenants, conditions or provisions of any of the
Guaranteed Obligations or the Loan Documents or the invalidity or
unenforceability of any of the foregoing; or
(ii) any extension of time that may be granted by the Agent to the
Borrower, any guarantor, or their respective successors or assigns; or
(iii) any action which the Agent may take or fail to take under or in
respect of any of the Loan Documents or by reason of any waiver of, or
failure to enforce any of the rights, remedies, powers or privileges
available to the Agent under this Guaranty or available to the Agent at
law, in equity or otherwise, or any action on the part of the Agent
granting indulgence or extension in any form whatsoever; or
(iv) any sale, exchange, release, or other disposition of any property
pledged, mortgaged or conveyed, or any property in which the Agent and/or
the Lenders have been granted a lien or security interest to secure any
indebtedness of the Borrower to the Agent and/or the Lenders; or
(v) any release of any person or entity who may be liable in any
manner for the payment and collection of any amounts owed by the Borrower
to the Agent and/or the Lenders; or
(vi) the application of any sums by whomsoever paid or however
realized to any amounts owing by the Borrower to the Agent and/or the
Lenders under the Loan Documents in such manner as the Agent shall
determine in its sole discretion; or
(vii) the Borrower's or any guarantor's voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of their
respective assets and liabilities, appointment of a trustee, receiver,
liquidator, sequestrator or conservator for all or any part of the
Borrower's or guarantor's assets, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment, or the commencement of other similar proceedings affecting
the Borrower or any guarantor or any of the assets of any of them,
including, without limitation, (i) the release or discharge of the Borrower
or any guarantor from the payment and performance of their respective
obligations under any of the Loan Documents by operation of law, or (ii)
the impairment, limitation or modification of the liability of the Borrower
or any guarantor in bankruptcy, or of any remedy for the enforcement of the
Guaranteed Obligations under any of the Loan Documents, or Guarantor's
liability under this Guaranty, resulting from the operation of any present
or future provisions of the Bankruptcy Code or other present or future
federal, state or applicable statute or law or from the decision in any
court; or
(viii) any improper disposition by the Borrower of the proceeds of the
Loans, it being acknowledged by Guarantor that the Agent shall be entitled
to honor any request made by the Borrower for a disbursement of such
proceeds and that the Agent shall have no obligation to see the proper
disposition by the Borrower of such proceeds.
6. Guarantor hereby agrees that if at any time all or any part of any
payment at any time received by the Agent from the Borrower under any of the
Notes or other Loan Documents or Guarantor under or with respect to this
Guaranty is or must be rescinded or returned by the Agent for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of the Borrower or Guarantor), then Guarantor's obligations
hereunder shall, to the extent of the payment rescinded or returned, be deemed
to have continued in existence notwithstanding such previous receipt by the
Agent, and Guarantor's obligations hereunder shall continue to be effective or
reinstated, as the case may be, as to such payment, as though such previous
payment to the Agent had never been made.
7. Until this Guaranty is terminated pursuant to the terms hereof, the
Guarantor (i) shall have no right of subrogation against the Borrower or any
entity comprising same by reason of any payments or acts of performance by
Guarantor in compliance with the obligations of Guarantor hereunder; (ii) hereby
waives any right to enforce any remedy which Guarantor now or hereafter shall
have against the Borrower or any entity comprising the same by reason of any one
or more payments or acts of performance in compliance with the obligations of
Guarantor hereunder; and (iii) shall subordinate any liability or indebtedness
of the Borrower or any entity comprising same now or hereafter held by Guarantor
to the obligations of the Borrower under the Loan Documents; provided that
nothing contained herein shall limit the right of the Guarantor to receive any
amount from the Borrower or any entity comprising the same that is not
prohibited by the terms of the Loan Documents.
8. Guarantor hereby represents and warrants on its own behalf to the
Agent with the knowledge that the Agent is relying upon the same, as follows:
(i) as of the date hereof, the Company owns a 99.8% limited
partnership interest in the Borrower and the Company is familiar with the
financial condition of the Borrower;
(ii) as of the date hereof, and after giving effect to the
consummation of the mergers, each Guarantor (other than the Company) is a
subsidiary of the Borrower
(iii) based upon such relationship, Guarantor has determined that it
is in its best interest to enter into this Guaranty;
(iv) this Guaranty is necessary and convenient to the conduct,
promotion and attainment of Guarantor's business, and is in furtherance of
Guarantor's business purposes;
(v) the benefits to be derived by Guarantor from the Borrower's access
to funds made possible by the Loan Documents are at least equal to the
obligations of Guarantor undertaken pursuant to this Guaranty;
(vi) each Guarantor is Solvent and has full corporate, partnership,
limited liability company or trust power, as the case may be, and legal
right to enter into this Guaranty and to perform its obligations under the
terms hereof and (i) Guarantor is organized or formed and validly existing
under the laws of the state of its establishment or formation, (ii)
Guarantor has complied with all provisions of applicable law in connection
with all aspects of this Guaranty, and (iii) the person executing this
Guaranty on behalf of Guarantor has all the requisite power and authority
to execute and deliver this Guaranty; and
(vii) this Guaranty has been duly executed by Guarantor and
constitutes the legal, valid and binding obligation of Guarantor,
enforceable against it in accordance with its terms except as enforce
ability may be limited by applicable insolvency, bankruptcy or other laws
affecting creditors' rights generally or general principles of equity
whether such enforceability is considered in a proceeding in equity or at
law.
9. Guarantor and the Agent acknowledge and agree that this Guaranty is
a guaranty of payment and not of collection and enforcement in respect of any
obligations which may accrue to the Agent and/or the Lenders from the Borrower
under the provisions of any Loan Document.
10. Subject to the terms and conditions of the Credit Agreement, and
only in conjunction with a transfer permitted thereunder, the Agent may assign
any or all of its rights under this Guaranty.
11. Guarantor agrees, upon the written request of the Agent, to
execute and deliver to the Agent, from time to time, any modification or
amendment hereto or any additional instruments or documents reasonably
considered necessary by the Agent or its counsel to cause this Guaranty to be,
become or remain valid and effective in accordance with its terms or in order to
implement more fully the intent of this Guaranty, provided, that, any such
modification, amendment, additional instrument or document shall not increase
Guarantor's obligation's or diminish its rights hereunder and shall be
reasonably satisfactory as to form to Guarantor and to Guarantor's counsel.
12. The representation and warranties of the Guarantor set forth in
this Guaranty shall survive until this Guaranty shall terminate in accordance
with the terms hereof.
13. This Guaranty together with the Credit Agreement and the other
Loan Documents contains the entire agreement among the parties with respect to
the Loans being made to the Borrower simultaneously with the execution and
delivery hereof, and supersedes all prior agreements relating to such Loans and
may not be modified, amended, supplemented or discharged except by a written
agreement signed by Guarantor and the Agent.
14. If all or any portion of any provision contained in this Guaranty
shall be determined to be invalid, illegal or unenforceable in any respect for
any reason, such provision or portion thereof shall be deemed stricken and
severed from this Guaranty and the remaining provisions and portions thereof
shall continue in full force and effect.
15. In order for any demand, request or notice to the respective
parties hereto to be effective, such demand, request or notice shall be given,
in writing, by delivering the same personally or by nationally recognized
overnight courier service or by mailing, by certified or registered mail,
postage prepaid or by telecopying the same, addressed to such party at the
address set forth below or to such other address as may be identified by any
party in a written notice to the others. Any such demand, request or notice sent
as aforesaid shall be deemed to have been received by the party to whom it is
addressed upon delivery, if personally delivered and on the actual receipt
thereof, if sent by certified or registered mail or by telecopier, and when
transmitted, if sent by telex:
If to the
Borrower: 225 Broadhollow Road
Melville, New York 11747
Attention: Michael Maturo
Telecopy: (516) 756-1764
If to
Guarantor: Metropolitan Partners LLC
225 Broadhollow Road
Melville, New York 11747
Attention: Michael Maturo
Telecopy: (516) 756-1764
With Copies of
Notices to the
Borrower or
Guarantor to: Brown & Wood LLP
One World Trade Center
New York, New York 10048
Attention: Patricia A. Murphy, Esq.
Telecopy: (212) 839-5599
If to the Agent: UBS AG, Stamford Branch
299 Park Avenue
New York, New York 10171
Attention: Xiomara Martez
Telecopy: (212) 821-3000
With Copies to: Skadden, Arps, Slate,
Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Martha Feltenstein, Esq.
Telecopy: (212) 735-2000
16. This Guaranty shall be binding upon Guarantor and its successors
and assigns and shall inure to the benefit of the Agent and its successors and
assigns.
17. The failure of the Agent to enforce any right or remedy hereunder,
or promptly to enforce any such right or remedy, shall not constitute a waiver
thereof, nor give rise to any estoppel against the Agent, nor excuse Guarantor
from its obligations hereunder. Any waiver of any such right or remedy to be
enforceable against the Agent must be expressly set forth in a writing signed by
the Agent.
18. (i) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
(ii) Any legal action or proceeding with respect to this Guaranty
and any action for enforcement of any judgment in respect thereof may be brought
in the courts of the State of New York or of the United States of America for
the Southern District of New York, and, by execution and delivery of this
Guaranty, Guarantor hereby accepts for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of the aforesaid
courts and appellate courts from any thereof. Guarantor irrevocably consents to
the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to Guarantor at the address for notices set forth herein.
Guarantor hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty brought in the courts
referred to above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of the Agent to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against Guarantor in
any other jurisdiction.
(iii) GUARANTOR AND AGENT BY THEIR EXECUTION HEREOF AND THE
LENDERS ACCEPTANCE HEREOF EACH HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
AND ALL CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY.
IT IS HEREBY ACKNOWLEDGED BY GUARANTOR THAT THE WAIVER OF A JURY TRIAL IS A
MATERIAL INDUCEMENT FOR THE AGENT TO ACCEPT THIS GUARANTY AND THAT THE LOANS
MADE BY THE LENDERS ARE MADE IN RELIANCE UPON SUCH WAIVER. GUARANTOR FURTHER
WARRANTS AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY
MADE, FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION,
THIS GUARANTY MAY BE FILED BY THE AGENT IN COURT AS A WRITTEN CONSENT TO A
NON-JURY TRIAL.
(iv) Guarantor does hereby further covenant and agree to and with
the Agent that Guarantor may be joined in any action against the Borrower in
connection with the Loan Documents and that recovery may be had against
Guarantor in such action or in any independent action against Guarantor (with
respect to the Guaranteed Obligations), without the Agent first pursuing or
exhausting any remedy or claim against the Borrower or its successors or
assigns. Guarantor also agrees that, in an action brought with respect to the
Guaranteed Obligations in any jurisdiction, it shall be conclusively bound by
the judgment in any such action by the Agent (wherever brought) against the
Borrower or their successors or assigns, as if Guarantor were a party to such
action, even though Guarantor was not joined as parties in such action.
(v) Guarantor hereby agrees to pay all expenses (including,
without limitation, reasonable attorneys' fees and disbursements) which may be
incurred by the Agent in connection with the enforcement of its rights under
this Guaranty, whether or not suit is initiated; provided, however, that such
expenses shall be paid by the Agent if a final judgment in favor of Guarantor is
rendered by a court of competent jurisdiction. Moreover, Guarantor covenants and
agrees to indemnify and save the Agent harmless of and from, and defend it
against, all losses, out-of-pocket costs and expenses, liabilities, damages or
claims arising by reason of Guarantor's failure to perform its obligations
hereunder.
19. Subject to the terms of Section 6 and Section 22 hereof, this
Guaranty shall terminate and be of no further force or effect upon the full
performance and payment of the Guaranteed Obligations hereunder. Upon
termination of this Guaranty in accordance with the terms of this Guaranty, the
Agent promptly shall deliver to Guarantor such documents as Guarantor or
Guarantor's counsel reasonably may request in order to evidence such
termination.
20. All of the Agent's rights and remedies under each of the Loan
Documents or under this Guaranty are intended to be distinct, separate and
cumulative and no such right or remedy therein or herein mentioned is intended
to be in exclusion of or a waiver of any other right or remedy available to the
Agent.
21. Recourse with respect to any claim arising under or in connection
with this Guaranty by the Agent, the Arranger, the Book Manager and the Lenders
shall be limited to the same extent as is provided in Section 4.3(e) of the
Credit Agreement with respect to claims against the Guarantor and the other
parties named therein and the terms, covenants and conditions of Section 4.3(e)
of the Credit Agreement are hereby incorporated by reference as if fully set
forth herein.
22. This Guaranty shall terminate as to any Guarantor (other than the
Company) upon the sale, transfer or other disposition of the real property owned
by such Guarantor (or the general partner of such Guarantor) provided any such
sale, transfer or other disposition is otherwise permitted under the Credit
Agreement and the proceeds thereof are used to prepay the Loans under and to the
extent required by the terms of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
duly executed and delivered as of the date first set forth above.
GUARANTOR:
METROPOLITAN PARTNERS LLC
a Delaware limited liability company
By: /s/ Michael Maturo
----------------------------------------------
Name:
Title: Chief Financial Officer
EAST BROADWAY 5151 LIMITED PARTNERSHIP
By: Metropolitan Arizona GP LLC,
its General Partner
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Chief Financial Officer
METROPOLITAN ARIZONA GP LLC,
its General Partner
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
-------------------------------------
Name:
Title: Chief Financial Officer
MAITLAND WEST ASSOCIATES LIMITED PARTNER
SHIP
By: Metropolitan Florida GP LLC,
its General Partner
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Chief Financial Officer
5750 ASSOCIATES LIMITED PARTNERSHIP
By: Metropolitan Florida GP LLC,
its General Partner
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Chief Financial Officer
MAITLAND ASSOCIATES, LTD.
By: Metropolitan Florida GP LLC,
its General Partner
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Chief Financial Officer
TOWER MINEOLA LIMITED PARTNERSHIP
By: Metropolitan Florida GP LLC,
its General Partner
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Chief Financial Officer
METROPOLITAN MINEOLA GP LLC,
its General Partner
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Chief Financial Officer
810 7TH AVENUE, L.P.
By: 810 7th Avenue GP LLC, its General Partner
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Chief Financial Officer
810 7th AVENUE GP LLC
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Chief Financial Officer
100 WALL COMPANY LLC
By: 100 Wall MM LLC, its Managing Member
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Chief Financial Officer
100 WALL MM LLC
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Chief Financial Officer
METROPOLITAN FLORIDA GP LLC,
its General Partner
By: Metropolitan Operating Partnership, L.P.,
its Managing Member
By: Metropolitan Partners LLC,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Chief Financial Officer
AGENT:
UBS AG, STAMFORD BRANCH,
as Administrative Agent
By: /s/ Jeffrey Walb
--------------------------
Name:
Title: Executive Director
By: /s/ Jeffrey Walb
--------------------------
Name:
Title: Executive Director
Exhibit 10.3
EXECUTION COPY
===============================================================================
RECKSON ASSOCIATES REALTY CORP.
Series B Convertible Cumulative Preferred Stock
-----------------------
PURCHASE AGREEMENT
-----------------------
Dated: May 27, 1999
===============================================================================
TABLE OF CONTENTS
Section Page
- ------- ----
1. AUTHORIZATION OF PREFERRED STOCK.........................................1
2. PURCHASE AND SALE OF PREFERRED STOCK.....................................1
3. CLOSING..................................................................1
4. CONDITIONS TO CLOSING....................................................2
4.1. Representations and Warranties..................................2
4.2. Compliance......................................................2
4.3. Compliance Certificates.........................................2
4.4. Opinion of Counsel..............................................2
4.5. Documents Required..............................................2
5. REPRESENTATIONS AND WARRANTIES...........................................3
5.1. Good Standing of the Issuer.....................................3
5.2. Good Standing of the Operating Partnership......................3
5.3. Good Standing of Significant Subsidiaries.......................3
5.4. Financial Statements............................................4
5.5. Capitalization..................................................4
5.6. Authorization, Validity and Enforceability of this
Agreement and the Registration Rights Agreement.................5
5.7. Authorization of Preferred Stock................................5
5.8. Authorization of Common Stock...................................5
5.9. Compliance with Laws, Other Instruments, etc....................5
5.10. Governmental Authorizations, etc................................6
5.11. Litigation......................................................6
5.12. No Defaults.....................................................6
5.13. Title to Property; Leases and Mortgages.........................6
5.14. Licenses and Approvals..........................................6
5.15. Environmental Matters...........................................7
5.16. Material Adverse Change.........................................7
5.17. Private Offering................................................7
5.18. REIT Qualification..............................................8
5.19. Tax Returns.....................................................8
6. REPRESENTATIONS OF THE PURCHASERS........................................8
7. INDEMNIFICATION..........................................................9
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.............9
9. NOTICES.................................................................10
10. PAYMENTS ON PREFERRED AND COMMON STOCK..................................10
10.1. Home Office Payment............................................10
11. CONFIDENTIAL INFORMATION................................................10
12. MISCELLANEOUS...........................................................11
12.1. Successors and Assigns.........................................11
12.2. Severability...................................................11
12.3. Counterparts...................................................12
12.4. Governing Law..................................................12
SCHEDULE A -- Information Relating To Purchasers
EXHIBIT 1 -- Form of Articles Supplementary
EXHIBIT 4.4 -- Form of Opinion of Counsel for the Issuer
EXHIBIT 4.5 -- Form of Registration Rights Agreement
RECKSON ASSOCIATES REALTY CORP.
225 Broadhollow Road
Melville, New York 11747
Series B Convertible Cumulative Preferred Stock
May 27, 1999
TO THE PURCHASERS LISTED ON
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
Reckson Associates Realty Corp., a Maryland corporation (the "ISSUER"),
and Reckson Operating Partnership, L.P., a Delaware limited partnership (the
"OPERATING PARTNERSHIP"), each agrees with you as follows:
1. AUTHORIZATION OF PREFERRED STOCK.
The Issuer has duly authorized the 6,000,000 million shares of its
Series B Convertible Cumulative Preferred Stock with a liquidation preference of
$25.00 per share (the "Preferred Stock"). The terms and provisions of the
Preferred Stock will be set forth in the Articles Supplementary (the "Articles
Supplementary") to the Issuer's charter, substantially in the form set forth in
Exhibit 1, which will be filed on or prior to the Closing (as defined in Section
3).
2. PURCHASE AND SALE OF PREFERRED STOCK.
Subject to the terms and conditions of this Agreement, the Issuer will
issue and sell to you, severally, and you, severally, will purchase from the
Issuer, at the Closing, the shares of Preferred Stock specified opposite your
name in Schedule A hereto at a price equal to $25.00 per share.
3. CLOSING.
The delivery of the Preferred Stock to be purchased by you shall occur
at the offices of Brown & Wood LLP, One World Trade Center, New York, New York
10048, at or about 10:00 a.m., New York City time, at a closing on June 2, 1999
or such other date as may be agreed upon by the Issuer and you (the "CLOSING").
At the Closing, the Issuer will deliver to each of you a single certificate
representing the number of shares of Preferred Stock specified opposite your
name on Schedule A hereto, which will be dated the date of the Closing and
registered in your name (or in the name of your nominee), and you shall
simultaneously deliver to the Issuer (by wire transfer to the Issuer's Account
No. 304-220191, The Chase Manhattan Bank, 380 Madison Avenue, New York, New York
10017, Account Name: Reckson Associates Realty Corp., ABA No.: 021000021), in
immediately available funds, the purchase price for such shares referred to in
Section 2.
If at the Closing the Issuer shall fail to tender any certificates as
provided above, or any of the conditions specified in Section 4 shall not have
been fulfilled, you shall, at your election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights you may
have by reason of such failure or nonfulfillment. If, however, at the Closing
you shall fail to pay for the Preferred Stock in full as provided above, the
Issuer shall, at its election, be relieved of all further obligations under this
Agreement, without thereby waiving any rights the Issuer may have by reason of
such failure.
4. CONDITIONS TO CLOSING.
Your obligation to purchase the Preferred Stock at the Closing is
subject to the fulfillment of the following conditions on or prior to the
Closing:
4.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Issuer and the Operating
Partnership in this Agreement shall be true and correct when made and on the
date of the Closing.
4.2. COMPLIANCE.
The Issuer shall have complied with all agreements and satisfied all
conditions contained in this Agreement required to be performed or complied with
by it prior to or on the Closing.
4.3. COMPLIANCE CERTIFICATES.
(a) Officer's Certificate. The Issuer shall have delivered to you a
---------------------
certificate executed by an officer of the Issuer on behalf of the Issuer for
itself and as general partner of the Operating Partnership, dated the date of
the Closing, certifying that the conditions specified in Section 4 have been
fulfilled.
(b) Secretary's Certificate. The Issuer shall have delivered to you
-----------------------
a certificate executed by the secretary or assistant secretary of the Issuer on
behalf of the Issuer for itself and as general partner of the Operating
Partnership certifying as to the resolutions of the Issuer relating to the
authorization, execution and delivery of this Agreement and consummation of the
transactions contemplated hereby.
4.4. OPINION OF COUNSEL.
You shall have received an opinion dated the date of the Closing from
Brown & Wood LLP, counsel for the Issuer, substantially in the form set forth in
Exhibit 4.4.
4.5. DOCUMENTS REQUIRED.
You shall have received the following documents, each dated the date of
Closing:
(a) a certificate registered in your name (or in the name of your
nominee) representing the number of shares of Preferred Stock to be purchased by
you pursuant to Section 2, duly executed by the Issuer;
(b) the Articles Supplementary, substantially in the form set forth
in Exhibit 1, duly executed by the Issuer and evidence reasonably satisfactory
to the Purchasers demonstrating that such Articles Supplementary have been
filed;
(c) the Registration Rights Agreement (the "Registration Rights
Agreement"), substantially in the form set forth in Exhibit 4.5, duly executed
by the Issuer and the Operating Partnership; and
(d) the documents contemplated in Section 4.3 and Section 4.4
hereof.
5. REPRESENTATIONS AND WARRANTIES.
Each of the Issuer and the Operating Partnership represents and
warrants, jointly and severally, to you as of the date hereof that:
5.1. GOOD STANDING OF THE ISSUER.
The Issuer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect (as defined
below). The Issuer has the corporate power and authority to own, lease and
operate its properties, to conduct its business and to enter into and perform
its obligations under this Agreement. As used herein, "Material Adverse Effect"
means a material adverse effect on the financial condition, results of
operations or business of the Issuer and its consolidated subsidiaries taken as
a whole.
5.2. GOOD STANDING OF THE OPERATING PARTNERSHIP.
The Operating Partnership is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified as a foreign limited partnership and is in good standing
in each jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Operating Partnership has the partnership
power and authority to own, lease and operate its properties, to conduct its
business and to enter into and perform its obligations under this Agreement.
5.3. GOOD STANDING OF SIGNIFICANT SUBSIDIARIES.
Each subsidiary of the Issuer that is a "significant subsidiary", as
such term is defined in Section 1-02 of Regulation S-X (each a "Significant
Subsidiary," and collectively, the "Significant Subsidiaries"), has been duly
organized and is validly existing as a corporation, limited partnership, limited
liability company or other entity, as the case may be, in good standing under
the laws of the state of its jurisdiction of incorporation or organization, as
the case may be, with the requisite power and authority to own, lease and
operate its properties and to conduct its business. Each such entity is duly
qualified or registered as a foreign corporation, limited partnership or limited
liability company or other entity, as the case may be, to transact business and
is in good standing in each jurisdiction in which such qualification is required
by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. All of the issued
and outstanding capital stock or other equity interests of each such entity has
been duly authorized and validly issued and is fully paid and non-assessable
and, except as otherwise stated in the Exchange Act Reports (as defined below),
are owned by the Issuer or the Operating Partnership, as the case may be, in
each case free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (collectively, "Liens"). As used herein, "Exchange
Act Reports" means the Issuer's Annual Report on Form 10-K for the year ended
December 31, 1998, the Quarterly Report on Form 10-Q for the quarter ended March
31, 1999 and the Current Reports on Form 8-K dated February 5, 1999, March 1,
1999, March 26, 1999 and May 11, 1999.
5.4. FINANCIAL STATEMENTS.
The Issuer has delivered to you copies of the financial statements of
the Issuer and its consolidated subsidiaries as of and for the year ended
December 31, 1998 and the quarter ended March 31, 1999. All of said financial
statements fairly present, in all material respects, the financial position of
the Issuer and its consolidated subsidiaries as of the respective dates
specified therein and the results of their operations and cash flows for the
respective periods so specified in conformity with generally accepted accounting
principles (subject, in the case of any interim financial statements, to normal
recurring adjustments).
5.5. CAPITALIZATION.
As of the date of this Agreement, the authorized capital stock of the
Issuer consists of 100,000,000 shares of Class A common stock (the "Common
Stock"), 6,000,000 shares of Class B common stock (the "Class B Common Stock"),
75,000,000 shares of excess stock, par value $0.01 per share, and 25,000,000
shares of preferred stock, par value $0.01 per share, of which 40,263,378 shares
of Common Stock, 9,192,000 shares of 7-5/8% Series A Convertible Cumulative
Preferred Stock (the "Series A Preferred Stock") and no shares of such Class B
Common Stock or such excess stock are issued and outstanding as of May 1, 1999.
All issued and outstanding shares of capital stock have been duly authorized and
validly issued by the Issuer and are fully paid and non-assessable and none of
such shares of capital stock were issued in violation of preemptive or other
similar rights arising by operation of law, under the charter and by-laws of the
Issuer or under any agreement to which the Issuer is a party or otherwise.
Except for (i) shares of Common Stock issuable upon (1) conversion of the Series
A Preferred Stock, (2) conversion of Crescent Real Estate Equities Limited
Partnership's preferred membership interest in Metropolitan Partners LLC, (3)
exchange of units of partnership interest in the Operating Partnership (the
"Units") or (4) exercise of options under the stock option plans and/or
distribution reinvestment plans of the Issuer, (ii) shares of Class B Common
Stock issuable in connection with the acquisition of Tower Realty Trust, Inc.,
(iii) shares of preferred stock issuable upon exchange of certain Units and (iv)
excess stock issuable in exchange for the Issuer's capital stock in certain
circumstances in each case as described in the Exchange Act Reports, there are
no shares of capital stock of the Issuer reserved for any purpose and there are
no outstanding securities convertible into or exchangeable for any shares of
capital stock of the Issuer.
5.6. AUTHORIZATION, VALIDITY AND ENFORCEABILITY OF THIS AGREEMENT AND THE
REGISTRATION RIGHTS AGREEMENT.
This Agreement and the Registration Rights Agreement, as the case may
be, have been duly authorized by the Issuer and the Operating Partnership and,
assuming due authorization, execution and delivery thereof by all parties
thereto other than the Issuer and the Operating Partnership, constitute valid
and legally binding agreements of such party enforceable against such party in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the enforcement of creditors' rights
generally or general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and except
further as the enforcement of the indemnification and the contribution
provisions contained therein may be limited by federal or state securities laws
or the public policy underlying such laws.
5.7. AUTHORIZATION OF PREFERRED STOCK.
The Preferred Stock has been duly authorized by the Issuer for issuance
and sale pursuant to this Agreement and, when issued and delivered by the Issuer
pursuant to this Agreement against payment of the consideration therefor, will
be validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights arising by operation of law, under the
charter and by-laws of the Issuer or under any agreement to which the Issuer is
a party or otherwise. The Articles Supplementary will be in full force and
effect on or prior to the Closing and will comply with all applicable legal
requirements.
5.8. AUTHORIZATION OF COMMON STOCK.
The Common Stock into which the Preferred Stock is convertible has been
duly authorized and reserved for issuance by the Issuer upon conversion of the
Preferred Stock. Such Common Stock, if and when issued upon such conversion,
will be validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights arising by operation of law, under the
charter and by-laws of the Issuer or under any agreement to which the Issuer is
a party or otherwise.
5.9. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by the Issuer and the Operating
Partnership of this Agreement and the consummation of the transactions
contemplated herein will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any of their property under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, charter or by-laws, or any other agreement
or instrument to which they are bound or by which they or any of their
properties may be bound or affected, (ii) conflict with or result in a breach of
any of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or governmental authority applicable to them or
(iii) violate any provision of any statute or other rule or regulation of any
governmental authority applicable to them.
5.10. GOVERNMENTAL AUTHORIZATIONS, ETC.
No consent, approval or authorization of, or registration, filing or
declaration with, any governmental authority is required in connection with its
execution, delivery or performance by the Issuer and the Operating Partnership
of this Agreement and the consummation of the transactions contemplated herein.
5.11. LITIGATION.
Except as otherwise stated in the Exchange Act Reports, there are no
actions, suits or proceedings pending or, to the Issuer's knowledge, threatened
against or affecting the Issuer or the Operating Partnership or any of their
property in any court or before any arbitrator of any kind or before or by any
governmental authority that would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
5.12. NO DEFAULTS.
Neither the Issuer nor the Operating Partnership is in default under any
term of any agreement or instrument to which it is a party or by which it is
bound or any order, judgment, decree or ruling of any court, arbitrator or
governmental authority or in violation of any applicable law, ordinance, rule or
regulation of any governmental authority, which default or violation would,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.13. TITLE TO PROPERTY; LEASES AND MORTGAGES.
Each of the Issuer and the Operating Partnership has good and marketable
title to its properties that, individually or in the aggregate, are material to
the financial condition, results of operations or business of the Issuer and its
consolidated subsidiaries taken as a whole. All leases and mortgages that,
individually or in the aggregate, are material to the financial condition,
results of operations or business of the Issuer and its consolidated
subsidiaries taken as a whole are valid and subsisting and are in full force and
effect in all material respects, and there are no known defaults by others
individually or in the aggregate with respect to such leases and mortgages which
would reasonably be expected to have a Material Adverse Effect.
5.14. LICENSES AND APPROVALS.
Each of the Issuer and the Operating Partnership has all necessary
licenses, permits and governmental authorizations from governmental authorities
to own, lease and operate its properties and to transact its business, the
absence of which would, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
5.15. ENVIRONMENTAL MATTERS.
Except as otherwise stated in the Exchange Act Reports, and except such
violations as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, to the Issuer's knowledge after due
inquiry and investigation,
(A) neither the Issuer nor the Operating Partnership is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance or code, including any judicial or administrative order,
consent, decree of judgment, relating to pollution or protection of human health
or safety, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata), including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"),
(B) the Issuer and the Operating Partnership have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are in compliance with such requirements,
(C) there are no pending or threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Issuer or the Operating Partnership, and
(D) there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Issuer or the Operating Partnership relating to any
Hazardous Materials or the violation of any Environmental Law.
5.16. MATERIAL ADVERSE CHANGE.
Since December 31, 1998, there has been no material adverse change in
the financial condition, results of operations or business of the Issuer and its
consolidated subsidiaries taken as a whole.
5.17. PRIVATE OFFERING.
Neither the Issuer nor anyone acting on its behalf has offered the
Preferred Stock or any similar securities for sale to, or solicited any offer to
buy any of the same from, or otherwise approached or negotiated in respect
thereof with, such type or number of persons or in such manner so as to require
registration of the Preferred Stock or the underlying Common Stock under the
Securities Act of 1933, as amended (the "Securities Act"), except as
contemplated under the Registration Rights Agreement.
5.18. REIT QUALIFICATION.
Commencing with the Issuer's taxable year ended December 31, 1995, the
Issuer has been, and upon the sale of the Preferred Stock, the Issuer will
continue to be organized in conformity with the requirements for qualification
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended (the "Code"), and its proposed method of operation will enable it to
continue to meet the requirements for taxation as a real estate investment trust
under the Code.
5.19. TAX RETURNS.
The Issuer has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in which an
extension has been granted or the failure to so file would not have a Material
Adverse Effect) and has paid all taxes required to be paid in respect of the
periods covered thereby and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except, in all
cases, for any such tax, assessment, fine or penalty that is being contested in
good faith.
6. REPRESENTATIONS OF THE PURCHASERS.
(a) Each of you represents that you are acquiring the Preferred
Stock for your own account or for one or more separate investor accounts
maintained by you for investment purposes and not with a view to the
distribution thereof, provided that the disposition of your or their property
shall at all times be within your or their control, as the case may be. You
understand that the Preferred Stock and the Common Stock into which the
Preferred Stock is convertible have not been registered under the Securities Act
and may be resold only if registered pursuant to the provisions of the
Securities Act or if an exemption from such registration is available, and that
the Issuer is not required to register the Preferred Stock or such Common Stock
except as specified in the Registration Rights Agreement.
(b) Each of you and each investor account for which you are acting
as fiduciary or agent represents and warrants, and, with respect to transfers
occurring prior to (i) the date which is two years (or such stated period of
time as permitted by Rule 144(k) under the Securities Act) after the later of
the date of original issue of the Preferred Stock and the last date on which the
Issuer or any affiliate of the Issuer was the owner of such Preferred Stock (or
any predecessor thereto) and (ii) such later date, if any, as may be required by
a change in applicable law, unless, in either case, the transfer is made
pursuant to an effective registration statement under the Securities Act, each
subsequent holder of Preferred Stock, by such holder's acquisition of the
Preferred Stock, shall be deemed to have represented and warranted, that it is
an institutional investor that qualifies as an "accredited investor," as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, and agrees or shall
be deemed to agree, to notify subsequent transferees of the restrictions
referred to in clause (a) above and this clause (b).
(c) Each of you is aware that you (or any investor account on whose
behalf you are purchasing the Preferred Stock) must bear the economic risk of
investment in the Preferred Stock for an indefinite period of time, and each of
you represents and warrants that you (or such accounts) are able to bear such
risk for an indefinite period of time.
(d) Each of you (or any investor account on whose behalf you are
purchasing the Preferred Stock) acknowledges that neither the Issuer nor anyone
acting on behalf of the Issuer has made any representation to you (or any
investor account on whose behalf you are purchasing the Preferred Stock) with
respect to the Issuer or the Operating Partnership or the offering or sale of
any Preferred Stock or the Common Stock into which the Preferred Stock is
convertible other than as set forth herein or in the Exchange Act Reports, which
have been delivered to you, and upon which you (or any investor account on whose
behalf you are purchasing the Preferred Stock) are relying solely in making an
investment decision with respect to the Preferred Stock.
(e) Each of you (or any investor account on whose behalf you are
purchasing the Preferred Stock) represents and warrants that, in the normal
course of business, you and any such investor account invest in or purchase
securities similar to the Preferred Stock, and you and any such investor account
have such knowledge and experience in financial and business matters that you
and any such investor account are capable of evaluating the merits and risks of
purchasing the Preferred Stock.
(f) Each of you (or any investor account on whose behalf you are
purchasing the Preferred Stock) represents and warrants that you and any such
investor account have had access to such financial and other information
concerning the Issuer and its subsidiaries as you and any such investor account
have deemed necessary in connection with making an investment decision to
purchase the Preferred Stock.
7. INDEMNIFICATION.
The Issuer and the Operating Partnership agree, jointly and severally,
to indemnify, pay and hold you and your respective officers, directors and
affiliates and their executive officers and directors (each, an "Indemnified
Party") harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits and claims, and all reasonable
out-of-pocket costs, expenses and disbursements, of any kind or nature
whatsoever (including, without limitation, reasonable fees and disbursements of
counsel for such Indemnified Parties) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of, or in connection with the preparation for a
defense of, any investigation, litigation or proceeding arising out of, related
to, or in connection with, this Agreement or the transactions contemplated
herein; provided, however, that neither the Issuer nor the Operating Partnership
shall have any obligation to any Indemnified Party hereunder with respect to
Indemnified Liabilities arising from (a) the gross negligence or willful
misconduct of such Indemnified Party or (b) such Indemnified Party not being
authorized or permitted to enter into this Agreement or to consummate the
transactions contemplated herein.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement, the issuance of the Preferred Stock,
the transfer by you of your Preferred Stock, and any conversion or redemption of
your Preferred Stock. In addition, all statements contained in any certificate
delivered by or on behalf of the Issuer or the Operating Partnership pursuant to
this Agreement shall be deemed representations and warranties of the Issuer or
the Operating Partnership, as the case may be, under this Agreement. Subject to
the preceding sentence, this Agreement, the Articles Supplementary, the
certificates representing the Preferred Stock and the Registration Rights
Agreement embody the entire agreement and understanding among each of you, the
Issuer and the Operating Partnership and supersede all prior agreements and
understandings relating to the subject matter hereof.
9. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other address as you
or it shall have specified to the Issuer in writing,
(ii) if to any other holder of Preferred Stock, to such holder at
such address as such other holder shall have specified to the Issuer in writing,
or
(iii) if to the Issuer or the Operating Partnership, to the Issuer
at its address set forth at the beginning hereof to the attention of the
President of the Issuer, or at such other address as the Issuer shall have
specified to the holders of the Preferred Stock in writing.
Notices under this Section 9 will be deemed given only when actually received.
10. PAYMENTS ON PREFERRED AND COMMON STOCK.
10.1. HOME OFFICE PAYMENT.
So long as you or your nominee shall be the holder of any certificate
representing shares of Preferred Stock or Common Stock acquired upon any
conversion or redemption of any share of Preferred Stock, the Issuer will make
all payments becoming due and payable on such certificate by the method and at
the address specified for such purpose below your name in Schedule A attached
hereto, or by such other reasonable method or at such other address as you shall
have from time to time specified to the Issuer in writing for such purpose,
without the presentation or surrender of certificates representing such shares,
except that upon redemption or conversion of any shares of Preferred Stock, the
surrender of the certificates representing such shares shall, as provided in the
Articles Supplementary, be a condition of payment in cash or shares of Common
Stock, as the case may be, to the order of the person whose name appears on the
certificates representing such shares.
11. CONFIDENTIAL INFORMATION.
For the purposes of this Section 11, "CONFIDENTIAL INFORMATION" means
information delivered to you by or on behalf of the Issuer, the Operating
Partnership or any of their respective affiliates in connection with the
transactions contemplated by or otherwise pursuant to this Agreement that is
proprietary in nature and that was clearly marked or labeled or otherwise
adequately identified in writing when received by you as being confidential,
provided that such term does not include information that (a) was publicly known
prior to the time of such disclosure, (b) subsequently becomes publicly known
through no act or omission by you or any person acting on your behalf, (c)
otherwise becomes known to you other than through the Issuer or Operating
Partnership's disclosure to you or (d) constitutes financial statements that are
otherwise publicly available. You will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by you in good
faith to protect confidential information of third parties delivered to you,
provided that you may deliver or disclose Confidential Information to (i) your
directors, officers, employees, agents, attorneys and affiliates (to the extent
such disclosure reasonably relates to the administration of the investment
represented by your Preferred Stock), (ii) your financial advisors and other
professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section 11, (iii)
any other holder of Preferred Stock, (iv) any institutional "accredited
investor" to which you sell or offer to sell your Preferred Stock (if such
person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 11), (v) any federal
or state or foreign regulatory authority having jurisdiction over you or any
affiliate or (vi) any other person to which such delivery or disclosure may be
necessary or appropriate (w) to effect compliance with any law, rule, regulation
or order applicable to you, (y) in response to any subpoena or other legal
process or (z) in connection with any litigation to which you are a party. Each
holder of Preferred Stock, by its acceptance thereof, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 11 as
though it were a party to this Agreement. On request by the Issuer in connection
with the delivery to any holder of Preferred Stock of information requested by
such holder (other than a holder that is a party to this Agreement or its
nominee), such holder will enter into an agreement with the Issuer embodying the
provisions of this Section 11.
12. MISCELLANEOUS.
12.1. SUCCESSORS AND ASSIGNS.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of Preferred Stock or Common Stock into which Preferred Stock was
converted), whether so expressed or not.
12.2. SEVERABILITY.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the fullest extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
12.3. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
12.4. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York without giving effect to any provisions
relating to conflicts of laws.
If you are in agreement with the foregoing, please sign this Agreement
on the accompanying counterpart and return it to the Issuer, whereupon the
foregoing shall become a binding agreement among you, the Issuer and the
Operating Partnership.
Very truly yours,
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Executive Vice President
and Chief Financial Officer
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Executive Vice President
and Chief Financial Officer
The foregoing is hereby agreed to
as of the date hereof.
STICHTING PENSIOENFONDS ABP
By: /s/ Jean Frijns
--------------------------------
Name:
Title: Chairman and
Chief Investment Officer
By: /s/ Wim Borgdorff
--------------------------------
Name:
Title: Managing Director -
Structured Investments
THE TRAVELERS INSURANCE COMPANY
By: /s/ Douglas D. Fitton
--------------------------------
Name:
Title: Vice President
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ Michael Watson
--------------------------------
Name:
Title: Vice President
THE STANDARD FIRE INSURANCE COMPANY
By: /s/ Douglas D. Fitton
--------------------------------
Name:
Title: Vice President
TRAVELERS CASUALTY AND SURETY COMPANY
By: /s/ Douglas D. Fitton
--------------------------------
Name:
Title: Vice President
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Shares of Preferred
Name and Address of Purchaser Stock to be Issued
- ----------------------------- -------------------
Stichting Pensioenfonds ABP 4,000,000
Chase Manhattan Bank, New York
ABA #021000021
Credit Account #920-1-033231
for further credit to:
ABN AMRO Bank N.V. a/c Global Custody Dept.
Breda, The Netherlands
Account #0281170
The Travelers Insurance Company 900,000
One Tower Square
Hartford, Connecticut 06183
Home Office Payment Information:
Travelers Private Placement Account
Chase Manhattan Bank
ABA #021 0000 21
Credit Account #9102587434
The Travelers Life and Annuity Company 100,000
One Tower Square
Hartford, Connecticut 06183
Home Office Payment Information:
Travelers Private Placement Account
Chase Manhattan Bank
ABA #021 0000 21
Credit Account #9102587434
The Standard Fire Insurance Company 120,000
One Tower Square
Hartford, Connecticut 06183
Home Office Payment Information:
Travelers Private Placement Account
Chase Manhattan Bank
ABA #021 0000 21
Credit Account #9102587434
Shares of Preferred
Name and Address of Purchaser Stock to be Issued
- ----------------------------- -------------------
Travelers Casualty and Surety Company 880,000
One Tower Square ---------
Hartford, Connecticut 06183
Home Office Payment Information:
Travelers Private Placement Account
Chase Manhattan Bank
ABA #021 0000 21
Credit Account #9102587434
6,000,000
=========
Notices to Stichting Pensioenfonds ABP
- --------------------------------------
Stichting Pensioenfonds ABP
Oude Lindestraat 70 - 6401 DJ Heerlen - The Netherlands
Attention: Leo Palmen
Telephone: 31-455-79-21-36
with a copy to:
ABP Investments (US)
450 Lexington Avenue, Suite 1800
New York, New York 10017
Atttention: Barden Gale
Telephone: (212) 338-0800 ext. 518
Notices to each Travelers Affiliated Purchaser
- ----------------------------------------------
The Travelers Insurance Company
One Tower Square
Hartford, Connecticut 06183
Attention: Heidi Rajala
Telephone: (860) 954-8353
with a copy to:
Travelers Investment Group
388 Greenwich Street, 36th Floor
New York, New York 10013
Attention: Mike Watson
Telephone: (212) 816-7277
EXHIBIT 1
FORM OF ARTICLES SUPPLEMENTARY
EXHIBIT 4.4
FORM OF OPINION OF COUNSEL
TO THE ISSUER
EXHIBIT 4.5
FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit 10.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of June 2, 1999 between RECKSON ASSOCIATES REALTY CORP., a
Maryland corporation (the "Company") and STICHTING PENSIOENFONDS ABP, a Dutch
pension fund, THE TRAVELERS INSURANCE COMPANY, a Connecticut insurance company,
THE TRAVELERS LIFE AND ANNUITY COMPANY, a Connecticut insurance company, THE
STANDARD FIRE INSURANCE COMPANY, a Connecticut insurance company, and TRAVELERS
CASUALTY AND SURETY COMPANY, a Connecticut insurance company (the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated May
27, 1999 (the "Purchase Agreement"), between the Company, as issuer of the
Series B Convertible Cumulative Preferred Stock (the "Preferred Securities"),
and the Initial Purchasers, which provides for, among other things, the sale by
the Company to the Initial Purchasers of the Preferred Securities. In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide to the Initial Purchasers and its direct and indirect
transferees the registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
-----------
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section
------
3 hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under
---------
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
------------
which banking institutions in The City of New York are authorized or required by
law, executive order or regulation to remain closed.
"Common Stock" means the Class A common stock of the Company initially
------------
issuable upon conversion or, in certain cases, redemption of the Preferred
Securities.
"Company" shall have the meaning set forth in the preamble to this
-------
Agreement and also includes the Company's successors and permitted assigns.
"Closing Time" shall mean the date of Closing, as defined in the Purchase
------------
Agreement.
"Effectiveness Period" shall have the meaning set forth in Section 2(a)
--------------------
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
------------
from time to time.
"Holder" shall mean the Initial Purchasers, for so long as it owns any
------
Registrable Securities, and each of its respective successors, assigns and
direct and indirect transferees who become holders of record of Registrable
Securities.
"Initial Purchasers" shall have the meaning set forth in the preamble to
------------------
this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(m) hereof.
----------
"Issue Date" shall mean June 2, 1999, the date of original issuance of the
----------
Preferred Securities.
"Liquidated Damages" shall have the meaning set forth in Section 2(c)
------------------
hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
----------------
liquidation preference of outstanding Preferred Securities.
"Operating Partnership" shall mean Reckson Operating Partnership, L.P., a
---------------------
Delaware limited partnership.
"Person" shall mean an individual, partnership, corporation, trust or
------
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf Registration
----------
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and, in each case, including all documents incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
------------------
this Agreement.
"Records" shall have the meaning set forth in Section 3(m) hereof.
-------
"Registrable Securities" shall mean the Securities; provided, however, that
----------------------
Securities shall cease to be Registrable Securities when the earlier of the
following occurs (i) a Shelf Registration Statement with respect to such
Securities for the resale thereof shall have been declared effective under the
Securities Act and such Securities shall have been disposed of pursuant to such
Shelf Registration Statement, (ii) such Securities shall have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or are eligible to be sold without
restriction as contemplated by Rule 144(k) or (iii) such Securities shall have
ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
---------------------
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Securities in
accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel for all
underwriters or Holders as a group in connection with blue sky qualification of
any of the Registrable Securities) and compliance with the rules of the NASD,
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Shelf Registration Statement, any
Prospectus and any amendments or supplements thereto, and in preparing or
assisting in preparing, printing and distributing any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) the fees
and disbursements of counsel for the Company and of the independent certified
public accountants of the Company, including the expenses of any "cold comfort"
letters required by or incident to the performance of and compliance with this
Agreement, and (vi) the reasonable fees and expenses of any special experts
retained by the Company in connection with the Shelf Registration Statement.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
------------------
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
---
"Securities" shall mean the Preferred Securities and the Common Stock.
----------
"Securities Act" shall mean the Securities Act of 1933, as amended from
--------------
time to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
------------------
2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
----------------------------
of the Company pursuant to the provisions of Section 2(a) hereof which covers
all of the Registrable Securities on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
2. Registration Under the Securities Act.
-------------------------------------
(a) Shelf Registration. The Company shall file or cause to be filed,
------------------
on or prior to December 2, 1999, a Shelf Registration Statement providing for
the sale by the Holders of all of the Registrable Securities and shall use its
best efforts to have such Shelf Registration Statement declared effective by the
SEC as promptly as practicable after filing thereof. No Holder of Registrable
Securities shall be entitled to include any of its Registrable Securities in any
Shelf Registration pursuant to this Agreement unless and until such Holder
agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company in writing, within 15
days after receipt of a request therefor, such information as the Company may,
after conferring with counsel with regard to information relating to Holders
that would be required by the SEC to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein. Each Holder as
to which any Shelf Registration is being effected agrees to furnish to the
Company all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company agrees to use its best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus usable for
resales during the Rule 144(k) Period (subject to extension pursuant to the last
paragraph of Section 3 hereof), or for such shorter period which will terminate
when all of the Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or cease to be Registrable
Securities (the "Effectiveness Period"); provided, however, that for 60 days or
less (whether or not consecutive) in any twelve-month period, the Company shall
be permitted to suspend sales of Securities if the Shelf Registration Statement
is no longer effective or the Prospectus usable for resales due to circumstances
relating to pending developments, public filings with the SEC and similar
events, or because the Prospectus includes an untrue statement of a material
fact or omits to state a material fact necessary in order to make statements
therein, in the light of the circumstances under which they were made, not
misleading. The Company will, in the event a Shelf Registration Statement is
declared effective, provide to each Holder a reasonable number of copies of the
Prospectus which is a part of the Shelf Registration Statement, notify each such
Holder when the Shelf Registration Statement has become effective and take such
other actions as are required to permit unrestricted resales of the Registrable
Securities. The Company further agrees to supplement or amend the Shelf
Registration Statement if and as required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Securities copies of any such supplement
or amendment promptly after its being used or filed with the SEC.
(b) Expenses. The Company, as issuer of the Securities, shall pay all
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Registration Expenses in connection with any Shelf Registration Statement filed
pursuant to Section 2(a) hereof and will reimburse any single counsel designated
in writing by the Majority Holders to act as counsel for the Holders of the
Registrable Securities in connection with a Shelf Registration Statement, which
other counsel shall be reasonably satisfactory to the Company. Except as
provided herein, each Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(c) Effective Shelf Registration Statement. A Shelf Registration
--------------------------------------
Statement will not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant to such
Shelf Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Shelf Registration Statement will be deemed not to have been effective
during the period of such interference, until the offering of Registrable
Securities pursuant to such Shelf Registration Statement may legally resume. The
Company will be deemed not to have used its reasonable best efforts to cause a
Shelf Registration Statement to become, or to remain, effective during the
requisite period if it voluntarily takes any action that would result in any
such Shelf Registration Statement not being declared effective or that would
result in the Holders of Registrable Securities covered thereby not being able
to offer and sell such Registrable Securities during that period, unless such
action is required by applicable law.
(d) Liquidated Damages. In the event that:
------------------
(i) a Shelf Registration Statement is not filed with the SEC on
or prior to December 2, 1999, then liquidated damages ("Liquidated Damages")
shall accumulate on the liquidation preference of the Preferred Securities at a
rate of 0.25% per annum;
(ii) a Shelf Registration Statement is not declared effective by
the SEC on or prior to the 90th day after the date such Shelf Registration
Statement was initially filed with the SEC, then Liquidated Damages shall
accumulate on the liquidation preference of the Preferred Securities at a rate
of 0.25% per annum; or
(iii) a Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective or the Prospectus
usable for resales (A) at any time prior to the expiration of the Effectiveness
Period and (B) if related to corporate developments, public filings with the SEC
or similar events or to correct a material misstatement or omission in the
Prospectus contained in the Shelf Registration Statement, for more than 60 days
(whether or not consecutive) in any twelve-month period, then, following the day
or 60th day, as the case may be, such Shelf Registration Statement ceases to be
effective or the Prospectus usable for resales, Liquidated Damages shall
accumulate on the liquidation preference of the Preferred Securities at a rate
of 0.25% per annum;
provided, however, that the Liquidated Damages rate on the liquidation
preference of the Preferred Securities may not exceed in the aggregate 0.25% per
annum; provided, further, however, that (1) upon the filing of a Shelf
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of a Shelf Registration Statement (in the case of clause (ii)
above), or (3) upon such time as the Shelf Registration Statement which had
ceased to remain effective or the Prospectus usable for resales again becomes
effective and usable for resales (in the case of clause (iii) above), Liquidated
Damages on the liquidation preference of the Preferred Securities as a result
thereof shall cease to accumulate.
Any amounts of Liquidated Damages due pursuant to Section 2(d)(i),
(ii) or (iii) above will be payable in cash on the next succeeding January 31,
April 30, July 31 or October 31, as the case may be, to Holders on the relevant
record dates for the payment of distributions.
(e) Specific Enforcement. Without limiting the remedies available to
--------------------
the Holders, the Company acknowledges that any failure by it to comply with its
obligations under Section 2(a) hereof may result in material irreparable injury
to the Holders for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, any Holder may obtain such relief as may be required
to specifically enforce the Company's obligations under Section 2(a) hereof.
3. Registration Procedures. In connection with the obligations of the
-----------------------
Company with respect to the Shelf Registration Statement pursuant to Section
2(a) hereof, the Company shall use its best efforts to:
(a) prepare and file with the SEC a Shelf Registration Statement as
prescribed by Section 2(a) hereof within the relevant time period specified
in Section 2(a) hereof on the appropriate form under the Securities Act,
which form shall (i) be selected by the Company, (ii) be available for the
sale of the Registrable Securities by the selling Holders thereof, and
(iii) comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the
SEC to be filed therewith; the Company shall use its best efforts to cause
such Shelf Registration Statement to become effective and remain effective
and the Prospectus usable for resales in accordance with Section 2 hereof;
provided, however, that, before filing any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto, the Company shall
furnish to and afford the Holders of the Registrable Securities covered by
such Shelf Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed; and the
Company shall not file any Shelf Registration Statement or Prospectus or
any amendments or supplements thereto in respect of which the Holders must
be afforded an opportunity to review prior to the filing of such document,
other than filings required under the Exchange Act, if the Majority
Holders, their counsel or the managing underwriters, if any, shall
reasonably object in a timely manner;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep
such Shelf Registration Statement effective for the Effectiveness Period,
subject to the proviso contained in the second paragraph in Section 2(a),
and cause each Prospectus to be supplemented, if so determined by the
Company or requested by the SEC, by any required prospectus supplement and
as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the Securities Act, and comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by a Shelf Registration Statement
during the Effectiveness Period in accordance with the intended method or
methods of distribution by the selling Holders thereof described in this
Agreement;
(c) (i) notify each Holder of Registrable Securities included in the
Shelf Registration Statement, at least three Business Days prior to filing,
that a Shelf Registration Statement with respect to the Registrable
Securities is being filed and advising such Holder that the distribution of
Registrable Securities will be made in accordance with the method selected
by the Majority Holders, (ii) furnish to each Holder of Registrable
Securities included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each
preliminary prospectus, and any amendment or supplement thereto, and such
other documents as such Holder or underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the Registrable
Securities and (iii) consent to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of Registrable
Securities included in the Shelf Registration Statement in connection with
the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
(d) register or qualify the Registrable Securities under all
applicable state securities or "blue sky" laws of such jurisdictions by the
time the applicable Shelf Registration Statement is declared effective by
the SEC as any Holder of Registrable Securities covered by a Shelf
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request in writing in advance of
such date of effectiveness, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder and
underwriter to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation or as
a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general
consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not then so subject;
(e) promptly notify each Holder of Registrable Securities, their
counsel and the managing underwriters, if any, and promptly confirm such
notice in writing (i) when a Shelf Registration Statement has become
effective and when any post-effective amendments thereto become effective,
(ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Shelf Registration Statement or Prospectus
or for additional information after the Shelf Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Shelf
Registration Statement or the qualification of the Registrable Securities
in any jurisdiction described in Section 3(d) hereof or the initiation of
any proceedings for that purpose, (iv) if, between the effective date of a
Shelf Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any purchase agreement, securities sales agreement or
other similar agreement cease to be true and correct in all material
respects, (v) of the happening of any event or the failure of any event to
occur or the discovery of any facts, during the Effectiveness Period, which
makes any statement made in a Shelf Registration Statement or the related
Prospectus untrue in any material respect or which causes such Shelf
Registration Statement or Prospectus to omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) of the
reasonable determination of the Company that a post-effective amendment to
the Shelf Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of
the Shelf Registration Statement at the earliest possible moment;
(g) furnish to each Holder of Registrable Securities included within
the coverage of a Shelf Registration Statement, without charge, at least
one conformed copy of the Shelf Registration Statement relating to such
Shelf Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends
and registered in such names as the selling Holders or the underwriters may
reasonably request at least two Business Days prior to the closing of any
sale of Registrable Securities pursuant to the Shelf Registration
Statement;
(i) promptly after the occurrence of any event specified in Section
3(e)(ii), 3(e)(iii), 3(e)(v) (subject to a 60 day grace period within any
twelve-month period) or 3(e)(vi) hereof, prepare a supplement or
post-effective amendment to the Shelf Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, such Prospectus will not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Company shall notify
each Holder to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder hereby agrees to
suspend use of the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any document which is to
be incorporated by reference into a Shelf Registration Statement or a
Prospectus after the initial filing of a Shelf Registration Statement,
provide a reasonable number of copies of such document to the Holders and
make such of the representatives of the Company as shall be reasonably
requested by the Holders of Registrable Securities or the Initial
Purchasers on behalf of such Holders available for discussion of such
document;
(k) enter into such agreements (including underwriting agreements) as
are customary in underwritten offerings and take all such other appropriate
actions in connection therewith as are reasonably requested by the Holders
of at least 25% in aggregate liquidation preference of the Registrable
Securities in order to expedite or facilitate the registration or the
disposition of the Registrable Securities;
(l) whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, if
requested by the Holders of at least 25% in aggregate liquidation
preference of the Registrable Securities covered thereby: (i) make such
representations and warranties to Holders of such Registrable Securities
and the underwriters (if any), with respect to the business of the Company
and its subsidiaries as then conducted and with respect to the Shelf
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to
the Company and updates thereof (which may be in the form of a reliance
letter) in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in aggregate
liquidation preference of the Registrable Securities being sold, addressed
to each selling Holder and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such underwriters (it
being agreed that the matters to be covered by such opinion may be subject
to customary qualifications and exceptions); (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory
to the managing underwriters from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by
such underwriters in accordance with Statement on Auditing Standards No.
72; and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable than
those set forth in Section 4 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate liquidation
preference of Registrable Securities covered by such Shelf Registration
Statement and the managing underwriters) customary for such agreements with
respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders); and
in the case of an underwritten registration, the above requirements shall
be satisfied at each closing under the related underwriting agreement or as
and to the extent required thereunder;
(m) make reasonably available for inspection by any selling Holder of
Registrable Securities who certifies to the Company that it has a current
intention to sell Registrable Securities pursuant to the Shelf
Registration, any underwriter participating in any such disposition of
Registrable Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during the Company's
normal business hours, all financial and other records, pertinent
organizational and operational documents and properties of the Company and
its subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, trustees and employees of the
Company and its subsidiaries to supply all relevant information in each
case reasonably requested by any such Inspector in connection with such
Shelf Registration Statement; records and information which the Company, in
good faith, to be confidential and any Records and information which it
notifies the Inspectors are confidential shall not be disclosed to any
Inspector except where (i) the disclosure of such Records or information is
necessary to avoid or correct a material misstatement or omission in such
Shelf Registration Statement, (ii) the release of such Records or
information is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or is necessary in connection with any action,
suit or proceeding or (iii) such Records or information previously has been
made generally available to the public; each selling Holder of such
Registrable Securities will be required to agree in writing that Records
and information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such is made
generally available to the public through no fault of an Inspector or a
selling Holder; and each selling Holder of such Registrable Securities will
be required to further agree in writing that it will, upon learning that
disclosure of such Records or information is sought in a court of competent
jurisdiction, or in connection with any action, suit or proceeding, give
notice to the Company and allow the Company at its expense to undertake
appropriate action to prevent disclosure of the Records and information
deemed confidential;
(n) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make
generally available to its securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the end of any twelve-month period (or 90 days
after the end of any twelve-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of a Shelf Registration Statement, which
statements shall cover said twelve-month periods, provided that the
obligations under this Section 3(n) shall be satisfied by the timely filing
of quarterly and annual reports on Forms 10-Q and 10-K under the Exchange
Act;
(o) cooperate with each seller of Registrable Securities covered by a
Shelf Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective counsel
in connection with any filings required to be made with the NASD;
(p) take all other steps necessary to effect the registration of the
Registrable Securities covered by a Shelf Registration Statement
contemplated hereby; and (q) the Company may require each seller of
Registrable Securities as to which any registration is being effected to
furnish to it such information regarding such seller as may be required by
the staff of the SEC to be included in a Shelf Registration Statement; the
Company may exclude from such registration the Registrable Securities of
any seller who unreasonably fails to furnish such information within a
reasonable time after receiving such request; and the Company shall have no
obligation to register under the Securities Act the Registrable Securities
of a seller who so fails to furnish such information.
Each Holder agrees that, upon receipt of any notice from the Company
of the occurrence of any event specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v)
or 3(e)(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Shelf Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies in such Holder's possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Shelf Registration Statement, the Company
shall use its best efforts to file and have declared effective (if an amendment)
as soon as practicable after the resolution of the related matters an amendment
or supplement to the Shelf Registration Statement and related Prospectus and
shall extend the period during which such Shelf Registration Statement is
required to be maintained effective and the Prospectus usable for resales
pursuant to this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including the date when
the Company shall have made available to the Holders (x) copies of the
supplemented or amended Prospectus necessary to resume such dispositions or (y)
the Advice.
4. Indemnification and Contribution. (a) The Company and the Operating
--------------------------------
Partnership hereby agree, jointly and severally, to indemnify and hold harmless
each Holder, each underwriter who participates in an offering of the Registrable
Securities, each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in a Shelf
Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact required to be stated therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that (subject to Section 4(d) hereof) such
settlement is effected with the prior written consent of the Company
and the Operating Partnership; and
(iii) against any and all expenses whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
such Holder), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) of this
Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company and the
Operating Partnership by such Holder or underwriter for use in the Shelf
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(b) The Initial Purchasers and each Holder or underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
trustees and officers (including each officer of the Company who signed the
Shelf Registration Statement), and the Operating Partnership and each Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense whatsoever described in the indemnity contained in
Section 4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use in such
Shelf Registration Statement (or any amendment thereto) or such Prospectus (or
any amendment or supplement thereto); provided, however, that no Holder shall be
liable for any claims hereunder in excess of the amount of net proceeds received
by such Holder from the sale of Registrable Securities.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have under this Section 4 to the extent that it is not materially
prejudiced by such failure as a result thereof, and in any event shall not
relieve it from liability which it may have otherwise on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 4(a)
or (b) above, counsel to the indemnified parties shall be selected by such
parties. An indemnifying party may participate at its own expense in the defense
of such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to local counsel),
separate from their own counsel, for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have validly requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement set forth in this Section 4 is
for any reason held to be unenforceable by an indemnified party although
applicable in accordance with its terms, the Company and the Operating
Partnership, on the one hand, and the Holders, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company, the
Operating Partnership and the Holders, as incurred; provided, however, that no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. As between the Company and
the Operating Partnership, on the one hand, and the Holders, on the other hand,
such parties shall contribute to such aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement in
such proportion as shall be appropriate to reflect the relative fault of the
Company and the Operating Partnership, on the one hand, and the Holders, on the
other hand, with respect to the statements or omissions which resulted in such
loss, liability, claim, damage or expense, or action in respect thereof, as well
as any other relevant equitable considerations. The relative fault of the
Company and the Operating Partnership, on the one hand, and of the Holders, on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Operating Partnership, on the one hand, or by or on behalf of the
Holders, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the Holders of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 4, each Affiliate of a
Holder, and each director, officer and employee and Person, if any, who controls
a Holder or such Affiliate within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Holder, and each trustee
and officer of the Company and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company and the
Operating Partnership.
5. Participation in an Underwritten Registration. No Holder may
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participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities
-------------------------
covered by the Shelf Registration Statement who desire to do so may sell the
Securities covered by such Shelf Registration in an underwritten offering,
subject to the provisions of Section 3(l) hereof. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate liquidation preference of the Registrable Securities included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. Miscellaneous.
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(a) Rule 144. For so long as the Company is subject to the reporting
--------
requirements of Section 13 or 15 of the Exchange Act and any Registrable
Securities remain outstanding, the Company will file the reports required to be
filed by it under the Securities Act and Section 13(a) or 15(d) of the Exchange
Act and the rules and regulations adopted by the SEC thereunder; provided,
however, that if the Company ceases to be so required to file such reports, it
will, upon the request of any Holder of Registrable Securities (a) make publicly
available such information as is necessary to permit sales of its securities
pursuant to Rule 144 under the Securities Act and (b) take such further action
that is reasonable in the circumstances, in each case, to the extent required
from time to time to enable such Holder to sell its Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any similar rules or regulations hereafter adopted
by the SEC. Upon the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into, and
--------------------------
will not enter into, any agreement which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority in aggregate liquidation preference of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
departure; provided that no amendment, modification or supplement or waiver or
consent to the departure with respect to the provisions of Section 4 hereof
shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder of Registrable Securities.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended,
without the consent of any Holder of Registrable Securities, by written
agreement signed by the Company, the Operating Partnership and the Initial
Purchasers, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company, the Operating Partnership and the
Initial Purchasers to the extent that any such amendment, modification,
supplement, waiver or consent is, in their reasonable judgment, necessary or
appropriate to comply with applicable law (including any interpretation of the
Staff of the SEC) or any change therein and (iii) to the extent any provision of
this Agreement relates to the Initial Purchasers, such provision may be amended,
modified or supplemented, and waivers or consents to departures from such
provisions may be given, by written agreement signed by the Initial Purchasers,
the Operating Partnership and the Company.
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company or the Operating Partnership, initially at the Company's address set
forth in the Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or amended
charter of the Company. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder shall be a third party
-------------------------
beneficiary of the agreements made hereunder among the Company, the Operating
Partnership and the Initial Purchasers, and the Initial Purchasers shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York without giving effect to
any provisions relating to conflicts of laws.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company or its Affiliates. Whenever the
------------------------------------------------
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
any Affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Scott Rechler
---------------------------------------
Name:
Title: President
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its General Partner solely with respect
to Section 4 hereof
By: /s/ Scott Rechler
---------------------------------------
Name:
Title: President
CONFIRMED AND ACCEPTED,
as of the date first
above written:
STICHTING PENSIOENFONDS ABP
By: /s/ Jean Frijns
--------------------------------
Name:
Title: Chairman and
Chief Investment Officer
By: /s/ Wim Borgdorff
--------------------------------
Name:
Title: Managing Director -
Structured Investments
THE TRAVELERS INSURANCE COMPANY
By: /s/ Douglas D. Fitton
--------------------------------
Name:
Title: Vice President
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ Michael Watson
--------------------------------
Name:
Title: Vice President
THE STANDARD FIRE INSURANCE COMPANY
By: /s/ Douglas D. Fitton
--------------------------------
Name:
Title: Vice President
TRAVELERS CASUALTY AND SURETY COMPANY
By: /s/ Douglas D. Fitton
--------------------------------
Name:
Title: Vice President
Exhibit 99.1
RECKSON AND TOWER ANNOUNCE COMPLETION OF MERGER
May 24, 1999 05:58 PM
MELVILLE, N.Y.--(BUSINESS WIRE)--May 24, 1999--Reckson Associates Realty Corp.
RA today announced that Tower stockholders have approved the merger of the two
companies and that the merger was completed today. As a result of the approval
by Reckson stockholders relating to the consideration to be paid in the merger,
only Reckson class B common stock and cash will be issued in the merger.
Scott Rechler, Reckson's President and Chief Operating Officer, stated, "Wea5e
very excited about the closing of the tower merger. We believe that through
this transaction along with our recently announced transaction relating to 919
Third Avenue, Reckson has created a strong platform in New York City from which
to build the Reckson franchise."
Lester S. Garfinkel, Tower's Chief Financial Officer and Executive Vice
President for Finance and Administration, said, "The Board and management of
Tower have been committed to achieving a transaction that serves the best
interests of our shareholders. Today's vote is the culmination of our efforts to
enable Tower shareholders to realize both an immediate cash return and ongoing
participation in the future of another publicly traded REIT."
Reckson also announced that, based on preliminary results, the cash election
offered in the merger was oversubscribed. However, the exact ratio of cash and
stock that will be received by Tower stockholders that elected to receive cash
will not be determined until after the May 26th deadline for holders who have
made cash elections to deliver their shares to the exchange agent.
Prior to the closing of the merger, Tower sold its Class B New York City
properties consisting of four properties aggregating approximately 671,000
square feet. Reckson has acquired, through Metropolitan Partners, Tower's
remaining 22 properties with an aggregate of approximately 3.5 million square
feet in the Manhattan, Phoenix/Tucson and Orlando markets.
Reckson Associations Realty Corp. is a self-administered and self-managed real
estate investment trust (REIT) specializing in the acquisition, leasing,
financing, management and development of office and industrial properties.
Reckson's core growth strategy is focused on the markets surrounding and
including New York City. Since the completion of its initial public offering in
May 1995, Reckson has acquired or contracted to acquire approximately $1.6
billion of properties comprising approximately 18.8 million square feet of
space.
Reckson is one of the largest publicly traded owners and managers of Class A
office and industrial properties in the New York City "Tri-State" area, with
206 properties comprised of approximately 23.3 million square feet either owned
and controlled, directly or indirectly, or under contract.
This information contains forward-looking information that is subject to certain
risks, trends and uncertainties that could cause actual results to differ
materially from those projected. Among those risks, trends and uncertainties
are the general economic climate; the supply of and demand for office and
industrial properties in the New York metropolitan tri-state area; interest rate
levels; the availability of financing; and other risks associated with the
development and acquisition of properties, including risks that development may
not be completed on schedule, that the tenants will not take occupancy or pay
rent, or that development or operating costs may be greater than anticipated.
For further information on factors which could impact the Company, reference is
made to the Company's filings with the Securities and Exchange Commission.
Exhibit 99.2
RECKSON RAISES DIVIDEND, NAMES CO-CEO
May 26, 1999 08:52 AM
MELVILLE, N.Y., May 26 (Reuters) - Reckson Associates Realty Corp. said on
Wednesday its board named President and Chief Operating Officer Scott Rechler
co-chief executive officer and president, and the company raised its dividend.
Rechler now shares the chief executive title with Chairman and co-Chief
Executive Officer Donald Rechler.
Mitchell Rechler and Gregg Rechler, both executive vice presidents at Reckson,
have been named co-chief operating officers.
Reckson increased its dividend 10 percent to an annualized dividend rate of
$1.485 a share, an increase from $1.35 a share.
The company's quarterly dividend of $0.37125 is payable July 16 to shareholders
of record as of July 8. The prior dividend was $0.3375 a share.
Exhibit 99.3
RECKSON ASSOCIATES REALTY CORP. ANNOUNCES
REVISED RESULTS OF MERGER CONSIDERATION
ELECTIONS IN THE TOWER MERGER
MELVILLE, N.Y.--(BUSINESS WIRE)--June 1, 1999--[Reckson Associates Realty Corp].
(NYSE: RA) has announced revised results of merger consideration elections after
being informed by the Exchange Agent that the Tower shareholder and unitholder
elections previously reported to Reckson understated the number of securities
for which cash elections were made by approximately 1.2 million. The Exchange
Agent has reported revised election results as to the form of merger
consideration in connection with the merger of [Tower Realty Trust, Inc]. into a
subsidiary of Reckson as follows:
Election Results Number of Tower Shares and Units Cash
Election 14,277,014 Non-Election 4,357,113
Under the terms of the merger agreement, an aggregate of approximately 75% of
the shares of common stock of Tower and limited partnership units of Tower
Realty Operating Partnership, L.P. will be exchanged for shares of class B
exchangeable common stock of Reckson at a ratio of 0.8364 of a Reckson share per
Tower share or unit, and an aggregate of 25% of the shares of common stock and
limited partnership units will be exchanged for $23 in cash per Tower share or
unit. As a result of the elections, the merger consideration will be paid as
follows:
- - Cash Election: approximately 0.5633 of a share of Reckson class B stock and
approximately $7.51 in cash for each Tower share or unit, in each case subject
to rounding.
- - Non-Election: 0.8364 of a share of Reckson class B stock for each Tower share
or unit.
Approximately 11.7 million shares of Reckson class B exchangeable common stock
and $107.2 million in cash will be paid in total to former Tower shareholders
and unitholders. The aggregate consideration to be paid in the merger will not
change as a result of the revised election results. In lieu of the issuance of
fractional shares to former Tower security holders, the Exchange Agent will
aggregate all fractional interests otherwise payable and will sell such shares
on behalf of such security holders on the [New York Stock Exchang]e. Former
Tower security holders will receive their proportionate interest in the net
proceeds of such sale.
Reckson Associates Realty Corp. is a self-administered an self-managed real
estate investment trust (REIT) specializing in the acquisition, leasing,
financing, management and development of office and industrial properties.
Reckson's core growth strategy is focused on the markets surrounding and
including New York City. Since the completion of its initial public offering in
May 1995, Reckson has acquired, contracted to acquire or developed approximately
$2 billion of properties comprising approximately 20.5 million square feet of
space.
Reckson is one of the largest publicly traded owners and managers of Class A
office and industrial properties in the New York City "Tri-State" area, with 210
properties comprised of approximately 25 million square feet either owned and
controlled, directly or indirecty, or under contract.
This information contains forward-looking information that is subject to certain
risks, trends and uncertainties that co8uld cause actual results to differ
materially from those projected. Among those risks, trends and uncertainties are
the general economic climate; the supply of and demand for office and industrial
properties in the New York metropolitan Tri-State area; interest rate levels;
the availability of financing; and other risks associated with the development
and acquisition of properties, including risks that development may not be
completed on schedule, that the tenants will not take occupancy or pay rent, or
that development or operating costs may be greater than anticipated. For further
information on factors that could impact Reckson, reference is made to Reckson's
filings with the Securities and Exchange Commission.