View:
\ SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
-------------
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: December 21, 2001
RECKSON ASSOCIATES REALTY CORP.
and
RECKSON OPERATING PARTNERSHIP, L.P.
(Exact name of each Registrant as specified in its Charter)
Exhibit 10.1
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
919 JV LLC
By and Between
Metropolitan Operating Partnership, L.P.,
Metropolitan 919 Manager LLC
and
New York State Teachers' Retirement System
Dated as of December 21, 2001
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...........................................................................2
ARTICLE II FILING; NAME; PLACE OF BUSINESS......................................................20
2.01 Filing.................................................................................20
2.02 Name of LLC............................................................................20
2.03 Place of Business......................................................................20
2.04 Registered Office and Registered Agent.................................................20
ARTICLE III PURPOSES, POWERS AND TERM OF LLC....................................................20
3.01 Purposes...............................................................................20
3.02 Powers.................................................................................20
3.03 Term of LLC............................................................................21
ARTICLE IV APPORTIONMENTS.......................................................................21
4.01 Apportionments.........................................................................21
ARTICLE V CAPITAL...............................................................................24
5.01 Deemed Capital Contributions...........................................................24
5.02 Additional Contributions; Shortfall Loans..............................................24
5.03 Liability of Members...................................................................26
5.04 Return of Capital......................................................................26
ARTICLE VI ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS.......................................26
6.01 Capital Accounts.......................................................................26
6.02 Allocation of Net Income or Net Loss...................................................27
6.03 Special Allocations....................................................................28
6.04 Tax Allocations; Allocation of Income and Loss.........................................28
6.05 Distributions of Net Ordinary Cash Flow and Net Extraordinary Cash Flow................29
6.06 Compliance with the Fractions Rule.....................................................31
6.07 Withholding Taxes......................................................................31
ARTICLE VII MANAGEMENT...........................................................................31
7.01 Managing Member........................................................................31
7.02 Management Committee...................................................................34
7.03 Major Decisions........................................................................35
7.04 Goods and Services from Affiliates/Enforcement.........................................39
7.05 The Business Plan......................................................................40
7.06 Other Activities of Members............................................................42
7.07 Property Management....................................................................42
7.08 Group Members..........................................................................42
ARTICLE VIII BANK ACCOUNTS; BOOKS AND RECORDS; STATEMENTS; TAXES; FISCAL YEAR...................43
8.01 Books of Account......................................................................43
8.02 Fiscal Year...........................................................................43
8.03 Bank Accounts.........................................................................43
8.04 Financial Statements..................................................................44
8.05 Tax Returns; Tax Matters Partner......................................................44
8.06 Communications........................................................................45
8.07 Partnership...........................................................................45
ARTICLE IX TRANSFERS OF INTERESTS; RIGHT OF FIRST REFUSAL; PLEDGES...............................45
9.01 Restrictions on Transfers of LLC Interests.............................................45
9.02 Right of First Offer...................................................................46
9.03 Conditions Applicable to All Transfers.................................................50
9.04 Admission of Transferee................................................................51
9.05 Pledge of Interest.....................................................................51
9.06 Special Transfer Provisions Applicable to Reckson......................................52
9.07 Compliance with Mortgage Loans.........................................................56
ARTICLE X SALE OF PROPERTY; BUY/SELL ARRANGEMENTS................................................56
10.01 Sale of Property to Third Parties......................................................56
10.02 Buy-Sell Arrangements..................................................................59
10.03 Purchase of Ground Leased Parcel.......................................................63
ARTICLE XI DISSOLUTION AND LIQUIDATION............................................................63
-ii-
11.01 Events Causing Dissolution............................................................63
11.02 Right to Continue Business of the LLC.................................................63
11.03 Distributions Upon Dissolution........................................................64
ARTICLE XII RECOURSE OBLIGATIONS..................................................................64
12.01 Goldman Recourse Obligations..........................................................64
12.02 Optional Recourse Obligations.........................................................66
12.03 Release and Substitution of Recourse Obligations......................................66
ARTICLE XIII REPRESENTATIONS AND WARRANTIES.......................................................66
13.01 Representations and Warranties........................................................66
ARTICLE XIV MISCELLANEOUS PROVISIONS.............................................................72
14.01 Compliance with LLC Act.............................................................72
14.02 Additional Actions and Documents....................................................72
14.03 Notices.............................................................................72
14.04 Expenses............................................................................75
14.05 Obligations Are Without Recourse....................................................75
14.06 Time of the Essence.................................................................76
14.07 Ownership of LLC Assets.............................................................76
14.08 Status Reports......................................................................76
14.09 Survival............................................................................77
14.10 Waivers.............................................................................77
14.11 Exercise of Rights..................................................................77
14.12 Binding Effect......................................................................77
14.13 Limitation on Benefits of this Agreement............................................77
14.14 Severability........................................................................78
14.15 Amendment Procedure.................................................................78
14.16 Entire Agreement....................................................................78
14.17 Headings............................................................................78
14.18 Governing Law.......................................................................78
14.19 Execution in Counterparts...........................................................78
14.20 Consents and Approvals..............................................................78
14.21 Brokerage...........................................................................78
14.22 Indemnification.....................................................................79
14.23 Business Day Extension..............................................................80
14.24 Consent to Jurisdiction; Choice of Forum............................................80
14.25 No Presumption......................................................................81
14.26 Confidentiality.....................................................................81
14.27 Lender's Rights.....................................................................81
14.28 Lower Tier Actions..................................................................81
14.29 Art Work............................................................................82
14.30 Signage.............................................................................82
- iii -
ARTICLE XV ARBITRATION...........................................................................82
ARTICLE XVI 919 MEMBER LLC........................................................................83
- iv -
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
919 JV LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT of 919 JV LLC (the
"LLC") is entered into as of December 21, 2001, between METROPOLITAN OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership having an office c/o Reckson
Associates, 225 Broadhollow Road, Melville, New York 11747 (together with its
permitted successors and assigns, "MOP"), METROPOLITAN 919 MANAGER LLC, a
Delaware limited liability company having an office c/o Reckson Associates,
225 Broadhollow Road, Melville, New York 11747 (together with its permitted
successors and assigns, "Metro919") and NEW YORK STATE TEACHERS' RETIREMENT
SYSTEM, a public pension system created and existing pursuant to Article 11 of
the Education Law of the State of New York and having powers and privileges of
a corporation pursuant to Section 502 thereof, having an address at 10
Corporate Woods Drive, Albany, New York 12211-2395 (together with its
permitted successors and assigns, "NYSTRS"). MOP, Metro919 and NYSTRS shall
hereinafter collectively be referred to as the "Members". All capitalized
terms not defined in the recitals below shall have the meanings ascribed to
them in Article I of this Agreement.
WHEREAS, the LLC was formed pursuant to the filing of a Certificate
of Formation (as the same may be amended from time to time, the "Certificate")
on December 7, 2001 and MOP and Metro919 (collectively, "Original Members")
entered into that certain Limited Liability Company Agreement (the "Original
LLC Agreement") made as of December 17, 2001 to govern the operation,
management and affairs of the LLC and the relationship between the Original
Members. Pursuant to the Original LLC Agreement, the percentage interests of
the Original Members were as follows: MOP-56.9236% and Metro919 - 43.0764%.
WHEREAS, the LLC is the holder of membership interests in the
following entities: (i) Metropolitan 919 3rd Avenue LLC, a Delaware
limited liability company (the "Property Owner") which owns certain fee and
ground leasehold interests (which interests are more particularly described in
the Property Owner LLC Agreement) in the Land and the Building (collectively,
the "Property"); (ii) 919 Third Avenue LLC, a Delaware limited liability
company ("Third Avenue LLC"); and (iii) Metropolitan 919 MM LLC, a Delaware
limited liability company ("MM LLC"; Property Owner, MM LLC and Third Avenue
LLC are collectively, the "Lower Tier Entities"). MM LLC and Third Avenue LLC
own an interest in Property Owner as described in the Property Owner LLC
Agreement.
WHEREAS, as of the date hereof, pursuant to a certain Assignment and
Admission Agreement between MOP and NYSTRS, MOP has assigned to NYSTRS an
Interest in the LLC which has the Initial Percentage Interest and the rights
and obligations set forth herein in exchange for $98,415,860.01.
WHEREAS, as a result of the foregoing, NYSTRS is being admitted as a
Member of the LLC as of the date hereof with a 49% Percentage Interest.
In order to reflect the foregoing and to reflect the agreement of
the parties to the foregoing and the other matters set forth below, the
parties hereby amend and restate the Original LLC Agreement as follows:
ARTICLE I
DEFINITIONS
Unless otherwise specified, all references herein to Articles or
Sections are to Articles or Sections of this Agreement. Unless the context
otherwise specifies or requires, capitalized terms used herein shall apply
equally to both the singular and the plural forms of such capitalized terms
and shall have the following respective meanings:
2nd Anniversary Date: As defined in Section 10.02(a).
919 Member LLC Agreement: That certain Operating Agreement of 919
Member LLC by and among 919 Third Avenue Associates L.P., 919 Fee Associates
L.P. and Metro919.
2002 Business Plan: As defined in Section 7.05(f).
Adjusted Capital Account: Means, with respect to a Member, the
balance in the Member's Capital Account increased by (i) the Member's share of
"partnership minimum gain" and "partner nonrecourse minimum gain" as defined
in the Regulations under Section 704(b) of the Code and (ii) the amount of any
cash and the fair market value of any property the Member would be required to
contribute to the LLC upon a deemed liquidation of the LLC under Section 6.02,
including pursuant to any deficit restoration obligation as defined in
Regulations Section 1.704-1(b)(2)(ii)(b)(3) and Section 1.704-1(b)(2)(ii)(c).
Affiliate: When used with reference to a specified Person, means any
other Person that (a) directly or indirectly through one or more
intermediaries controls or is controlled by or is under common control with
the specified Person, (b) is a general partner or managing member of (i) the
Person in question, (ii) any general partner or managing member of the Person
in question or (iii) any other Person described in clause (a) above with
respect to the Person in question or (c) owns, is owned by, directly or
indirectly, or is under common ownership with, directly or indirectly, 25% or
more of the equity interests of the specified Person. For purposes of this
definition of "Affiliate" the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities
or similar ownership interests, by contract or otherwise. Notwithstanding the
foregoing, neither the Reckson Members nor the NYSTRS Members shall be deemed
to be Affiliates of any Applicable Entity.
Affiliate Agreement: As defined in Section 7.04(b).
-2-
Affiliate Agreement Summary: As defined in Section 7.04(a).
Agreement: This Amended and Restated Operating Agreement, as it may
be further amended or supplemented from time to time.
Annual Report: As defined in Section 8.04(a).
Applicable Entities: The LLC, MM LLC, Third Avenue LLC and the
Property Owner, individually or collectively.
Applicable Interest: As defined in Section 9.02(a)(i).
Applicable Loan Documents: the documents governing each Applicable
Loan.
Applicable Loans: Means, collectively (a) the Goldman Loan
and (b) other indebtedness now or hereafter entered into by any Applicable
Entity which may be (x) unsecured, or (y) secured by (I) a mortgage lien on
the Property (collectively, with the Goldman Loan, the "Mortgage Loans")
and/or (II) the membership interests of one or more Applicable Entities.
Approved Agent: Means, subject to the last four sentences of this
definition, Insignia/ESG, Inc., Cushman & Wakefield, Inc., CB Richard Ellis,
Jones Lang LaSalle, Colliers ABR and Hines Interests Limited Partnership (and
their respective successors) (collectively, the "Initial Agents"). In the
event that less than three of the above Persons shall (i) be in existence at
the time in question, (ii) be managing Class A commercial space in Manhattan
or (iii) cease to be an "Approved Agent" under the penultimate sentence of
this paragraph an "Approved Agent" shall be any of the remaining Initial
Agents, plus the next largest managing agents that are not Competitors such
that the list of Approved Agents shall always consist of at least 3 agents.
The largest managing agents shall be determined by the amount of Class A
office space managed in Manhattan at such time. The parties acknowledge that
one or more of the Initial Agents may currently be a "Competitor".
Notwithstanding the foregoing, so long as 75% or more of the space managed by
an Initial Agent is not contained in Agent-Owned Buildings, each such Initial
Agent shall be deemed to be an Approved Agent. An "Agent-Owned Building" is a
building in which more than 7 1/2% of the direct or indirect ownership
interests are held by an Initial Agent or its Affiliates.
Bank Account: As defined in Section 8.03.
Bankrupt: A Person shall be deemed "Bankrupt" upon, (i) the
entry of a final, nonappealable decree or order for relief of the Person by a
court of competent jurisdiction in any involuntary case involving the Person
under any bankruptcy, insolvency or other similar law now or hereafter in
effect; (ii) the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or other similar agent for the Person or for all or
substantially all of the Person's assets or property which appointment is not
discharged within 90 days; (iii) the ordering of the winding up or liquidation
of the Person's affairs (in connection with an insolvency or bankruptcy); (iv)
the filing with respect to the Person of a petition in any such involuntary
bankruptcy case, which petition remains undismissed for a period of 90 days;
(v) the commencement by the Person
-3-
of a voluntary case under any bankruptcy, insolvency or other similar law now
or hereafter in effect; (vi) the consent by the Person to the entry of an
order for relief in an involuntary case under any such law or to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar agent for the Person or for
all or substantially all of the Person's assets or property; (vii) the making
by the Person of any general assignment for the benefit of creditors; or
(viii) the admission in writing by the Person of its inability to pay its
debts as such debts become due.
Binding Commitment Notice: As defined in Section 9.02(a)(i)(B).
Binding Commitment Period: As defined in Section 9.02(a)(i)(B).
Binding Property Notice: As defined in Section 10.01(a).
Book Value: Means, with respect to any LLC Asset, the asset's
adjusted basis for federal income tax purposes, except that, in accordance
with the rules set forth in Regulations Section 1.704-1(b)(iv):
(a) The initial Book Value of the assets of the LLC as of the
date of their contribution or deemed contribution shall be their respective
gross fair market values at such time as reasonably determined by the Managing
Member;
(b) The Book Value of any asset distributed or deemed
distributed by the LLC to any Member shall be adjusted immediately prior to
such distribution to equal its gross fair market value at such time as
reasonably determined by the Managing Member;
(c) The Book Values of all LLC assets may be adjusted in the
discretion of the Managing Member to equal their respective gross fair market
values, as reasonably determined by the Managing Member, as of the following
times:
(i) the date of the acquisition of an additional Interest in
the LLC by any new or existing Member in exchange for more than a de minimis
contribution to the capital of the LLC;
(ii) upon any distribution in liquidation of the LLC, or the
distribution by the LLC to a retiring or continuing Member of more than a de
minimis amount of money or other assets of the LLC in reduction of such
Member's Interest in the LLC; or
(iii) upon a Major Capital Event.
(d) The Book Values of all LLC assets shall be adjusted to
reflect any adjustments to the adjusted basis of any assets of the LLC
pursuant to Sections 734(b) or 743(b) of the Code, but only to the extent that
such adjustments are required to be taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); and
(e) If the Book Value of an asset has been determined pursuant
to clauses (a), (c) or (d) above, such Book Value shall thereafter be adjusted
for depreciation and amortization
-4-
deductions computed based on the asset's Book Value as so determined, and not
on the asset's adjusted tax basis.
The foregoing definition of Book Value is intended to comply with
the provisions of Regulations Section 1.704-1(b)(2)(iv) and shall be
interpreted and applied consistently therewith.
Broker: As defined in Section 14.21.
Budgets: As defined in Section 7.05(a).
Building: The buildings commonly known as 915 Third Avenue, New
York, New York and 919 Third Avenue, New York, New York.
Business Day: Monday through Friday of each week, except that a
legal holiday recognized as such by the Government of the United States and
any other day on which banks in the State of New York are required or
permitted to be closed shall not be regarded as a business day.
Business Plan: As defined in Section 7.05(a).
Buy/Sell Closing Date: As defined in Section 10.02(b).
Buy/Sell Deposit: As defined in Section 10.02(a).
Buy/Sell Escrow Agent: As defined in Section 10.02(a).
Buy/Sell Offer Notice: As defined in Section 10.02(a).
Buy/Sell Price: As defined in Section 10.02(a).
Buy/Sell Response Notice: As defined in Section 10.02(a).
Buy/Sell Transaction: As defined in Section 10.02(a).
Capital Account: Means, with respect to a Member, the capital
account of such Member maintained pursuant to Section 6.01, including all
additions thereto and subtractions therefrom pursuant to this Agreement.
Capital Budget: As defined in Section 7.05(a).
Capital Call Notice: As defined in Section 4.01(b).
Capital Contribution: Means, with respect to each Member, the amount
contributed or deemed contributed by such Member as set forth in Section
5.01(a), as the same may be increased to reflect additional Capital
Contributions made in accordance with Section 5.02(a), or increased or
decreased pursuant to Section 5.02(b). The Capital Contributions of the
-5-
Members shall not be reduced by virtue of any distributions made to the
Members, whether of Net Ordinary Cash Flow or Net Extraordinary Cash Flow.
Capital Improvements: Any renewals, replacements and improvements to
the Property which in accordance with GAAP must be capitalized.
Capital Reserves: Reserve funds reasonably established by the
Managing Member in connection with a Major Capital Event or upon dissolution
and liquidation of the LLC.
Cash Reserves: Reserve funds (other than Capital Reserves)
established by the Managing Member to pay the LLC Charges of each Applicable
Entity as set forth in the Business Plan or as reasonably determined by the
Managing Member.
Certificate: As defined in the Preamble.
Clause (iii) Default: As defined in Section 7.01(b).
Clause (iii) Default Notice: As defined in Section 7.01(b).
Code: The Internal Revenue Code of 1986, as in effect and hereafter
amended, and, unless the context otherwise requires, applicable regulations
thereunder. Any reference herein to a specific section or sections of the Code
shall be deemed to include a reference to any corresponding provision of
future law.
Competitor: As defined in Section 9.02(c)(ii).
Contract Date: As defined in Section 10.01(a).
Contributing Member: As defined in Section 5.02(b)(i).
Contributing Member Contribution: As defined in Section 5.02(b)(ii).
Control: As defined in the definition of "Affiliate".
Conversion Date: As defined in Section 5.02(b)(ii).
CPI: The Consumer Price Index for All Urban Consumers (CPI-U), All
Items, applicable to the N.Y.-Northeastern N.J. area (1982-84 = 100) for urban
wage earners and clerical workers, as published by the U.S. Department of
Labor, Bureau of Labor Statistics. If such Consumer Price Index is
discontinued or otherwise revised during the term of this Agreement, the
Consumer Price Index for All Urban Consumers (CPI-U), All Items, U.S. City
Average (1982-84 = 100) for urban wage earners and clerical workers, as
published by the U.S. Department of Labor, Bureau of Labor Statistics, shall
be used, and if such national index is discontinued or otherwise revised
during the term of this Agreement, such other government index or computation
with which it is replaced shall be used in order to obtain substantially the
same result as would be obtained if the Consumer Price Index had not been
discontinued or revised.
-6-
CPI Increase: As of any date during the term of this Agreement (such
date, the "Determination Date"), the percent of increase, if any, in the CPI
for the month in which the applicable Determination Date occurs over the CPI
for (x) December, 2001 or (y) with respect to the "CPI Increase" referenced in
Section 7.05(e), January of the Fiscal Year in question.
Comments: As defined in Section 7.05(b).
Damages: As defined in Section 12.01.
Default Amount: As defined in Section 5.02(b)(i).
Default Loan: As defined in Section 5.02(b)(i).
Default Loan Rate: 4% per annum above the Prime Rate.
Default Notice: As defined in Section 7.01(b).
Deposit: As defined in Section 9.02(a)(C).
Determination Date: As defined in the definition of "CPI Increase".
Dispute: As defined in Section 7.01(d).
Dispute Notice: As defined in Section 9.02(c).
Environmental Indemnity: As defined in Section 12.01.
Environmental Laws: Means all applicable federal, state or local
laws, ordinances, requirements and regulations (including consent decrees and
administrative orders) relating to the protection of the environment,
including, but not limited to, the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the federal Superfund
Amendments and Reauthorization Act of 1986, the federal Resource Conservation
and Recovery Act of 1976, the federal Clean Air Act, the federal Water
Pollution Control Act and federal Clean Water Act of 1987, the federal
Insecticide, Fungicide and Rodenticide Act, the federal Pesticide Act of 1978,
the federal Toxic Substances Control Act, the federal Safe Drinking Water Act,
the federal Hazardous Materials Transportation Act, and all amendments
thereto.
Environmental Reports: As defined in Section 13.01(a)(xviii).
Escrow Agent: As defined in Section 9.02(a)(i)(C).
Existing Recourse Obligations: As defined in Section 12.01.
First Offer Notice: As defined in Section 9.02(a)(i)(A).
Fiscal Year: As defined in Section 8.02.
Former Managing Member: As defined in Section 7.01(b).
-7-
GAAP: Accounting principles generally accepted in the United States,
consistently applied.
Goldman: As defined in Section 12.01.
Goldman Default Rate: The "Default Rate", as such term is defined in
the Goldman Loan Agreement.
Goldman Loan: As defined in Section 12.01.
Goldman Loan Agreement: As defined in Section 12.01.
Goldman Loan Costs: As defined in Section 4.01(e).
Ground Lease: That certain ground lease, dated August 28, 1967,
between Helen K. Rosman and Jacob Imberman, as Trustees for the benefit of
Helen K. Rosman under the Last Will and Testament of Isidor B. Rosman,
deceased; Helen K. Rosman as trustee for the benefit of Barbara Joan Rosman
under the Last Will and Testament of Isidor B. Rosman, deceased; Helen K.
Rosman as trustee for the benefit of Judith Evelyn Rosman, under the Last Will
and Testament of Isidor B. Rosman, deceased; and Rose Grant and Herbert S.
Grant as executors under the Last Will and Testament of Herman Grant,
deceased, as lessors, and Ralno Corp., as lessee, as amended and assigned.
Ground Lease Documents: As defined in Section 13.01(a)(ix).
Ground Leased Parcel: The portion of the Property that is subject to
the Ground Lease.
Group Agent: As defined in Section 7.08.
Group Members: As defined in Section 7.08.
Hazardous Materials: Oil and petroleum products, asbestos,
polychlorinated biphenyls, radon and urea formaldehyde, and all other
materials classified as hazardous or toxic under any Environmental Law.
Identity Notice: As defined in Section 9.02(c)(ii).
Indemnitees: As defined in Section 14.22(a).
Indemnity Laws: As defined in Section 14.22(d).
Initial Agent: As defined in the definition of "Approved Agent".
Initial Percentage Interest: As defined in the definition of
"Percentage Interest".
Interest: As to a Member, all of the interest of that Member in the
LLC, including, without limitation, such Member's (i) right to an allocable
share of the income, gains,
-8-
losses and deductions of the LLC in accordance with this Agreement, and (ii)
right to a distributive share of LLC Assets.
Land: As set forth on Exhibit A.
Lease: Any lease, license or other agreement now in effect or
hereafter entered into which permits the use and occupancy of any portion of
the Property by third parties.
Leasing Guidelines: As defined in Section 7.05(a).
Legal Requirements: All laws, statutes, or ordinances, including
building codes, subdivision, zoning regulations, urban redevelopment plans,
fire, health, safety, pollution, environmental protection and safety laws,
OSHA requirements, and the orders, rules, regulations, directives and
requirements of any federal, state or local governmental or quasi-governmental
authority which are applicable to the Property, any of the Lower Tier Entities
or the LLC; all requirements, obligations, terms, restrictions, provisions and
conditions of all covenants, conditions, easements, rights of way, instruments
now or hereafter applicable to the Property whether or not of record; and all
rules, regulations and requirements of any insurance company insuring all or
any part of the Property.
Lessor's Interest: As defined in Section 10.03.
Lessor's Interests: As defined in Section 13.01.
LLC: As defined in the Preamble.
LLC Accountants: Ernst & Young, LLP or, if the Managing Member
determines to replace Ernst & Young, LLP, such other nationally recognized
firm of independent certified public accountants selected by the Managing
Member and approved by the Management Committee in accordance with Section
7.03(g).
LLC Act: The Delaware Limited Liability Company Act (as the same may
be amended from time to time).
LLC Assets: All assets and property, whether tangible or intangible
and whether real, personal or mixed, at any time owned by or held for the
benefit of the LLC but not including the assets and the property held by any
Lower Tier Entity.
LLC Charges: For a given period of time, a sum equal to the
aggregate of the expenditures, charges and costs actually paid by the LLC
during such period of time in accordance with the terms of this Agreement,
determined (except with respect to clause (f) below) on a cash basis of
accounting, including, without duplication or limitation:
(a) all payments of principal and interest on loans (including
Applicable Loans) to the LLC;
(b) all taxes and assessments imposed upon the LLC;
-9-
(c) the net increase, if any, in the Cash Reserves during such
period of time;
(d) the fees and expenses of attorneys, accountants,
architects, engineers, appraisers and other professionals retained by or on
behalf of the LLC in accordance with the terms hereof;
(e) amounts contributed or loaned to the Lower Tier Entities;
(f) amounts payable to Metro919 pursuant to Section 4.01(e);
(g) amounts payable to certain Building tenants pursuant to
Section 4.01(a)(ii)(C); and
(h) all other appropriate and necessary costs and expenses of
the LLC incurred in accordance with this Agreement.
Notwithstanding the foregoing, there shall be excluded from LLC
Charges:
(1) all non-cash items such as depreciation;
(2) amounts distributed to the Members pursuant to this
Agreement;
(3) all costs, charges and expenses deducted from the proceeds
of a Major Capital Event to determine Net Extraordinary Cash Flow;
(4) any expense, cost or charge to the extent such expense,
cost or charge was paid from Cash Reserves; and
(5) any expenses, obligations or liabilities incurred by the
Reckson Members or the NYSTRS Members in connection with the formation of the
LLC and the entering into of this Agreement which are specifically stated to be
those of the Reckson Members or the NYSTRS Members (rather than the LLC) under
this Agreement.
Loan Agreement Recourse Obligations: As defined in Section 12.01.
Lockout Period: As defined in Section 10.02(a).
LOI: As defined in Section 10.01(a).
Lower Tier Entities: As defined in the Preamble.
Lower Tier LLC Agreements: The operating agreements of the Lower
Tier Entities, i.e., the Property Owner LLC Agreement, the Third Avenue LLC
Agreement and the MM LLC Agreement, individually or collectively.
Major Capital Event: Any extraordinary transaction which generates
cash receipts other than ordinary operating income, including, without
limitation, sales of all or a
-10-
significant portion of the LLC's interests in the Lower Tier Entities and
borrowings (whether secured or unsecured) by the LLC.
Major Decisions: As defined in Section 7.03.
Major Lease: As defined in Section 7.03(d).
Major Line Items: The following line items: Cleaning; Payroll and
Employee-Related Expenses; Utilities; Repairs and Maintenance; Security;
Insurance; Real Estate Taxes; Ground Rent; General and
Administrative/Professional Fees and Property Management.
Management Agreement: The management and leasing agreement dated as
of the date hereof entered into between the Property Owner and Managing Agent
governing the management and leasing of the Property as such agreement may be
modified, amended or restated from time to time in accordance with this
Agreement and any replacement management and leasing agreement entered into in
accordance with the provisions of this Agreement.
Management Committee: As defined in Section 7.02(a).
Managing Agent: RANY Management Group, Inc. or any successor thereto
or any replacement managing agent appointed in accordance with the terms of
this Agreement.
Managing Member: Means whichever of (x) a Reckson Member or (y) a
NYSTRS Member is the Member entitled to exercise the rights of the Managing
Member under this Agreement. Initially, Metro919 shall be the Managing Member
of the LLC.
Managing Member Advisors: As defined in Section 7.01(d).
Managing Member Default: As defined in Section 7.01(b).
Managing Member Replacement Date: As defined in Section 7.01(b).
Marketing Period: As defined in Section 10.01(a).
Material Agreements: Means each contract or agreement (other than
Leases, the Ground Lease, any Applicable Loan Documents, organizational
documents, title documents or other documents of record) relating to the
operation of the Property under which an Applicable Entity has the obligation
to pay (or is reasonably likely to pay) more than $150,000 per annum and which
cannot be terminated by an Applicable Entity without cause upon 45 days'
notice or less without a material penalty or premium.
Member: Means, at any time, any Person admitted and remaining as a
member of the LLC pursuant to the terms of this Agreement. As of the date of
this Agreement the Members of the LLC are MOP, Metro919 and NYSTRS.
Member Debtor: As defined in Section 9.05(a).
-11-
MM LLC: As defined in the Preamble.
MM LLC Agreement: That certain Amended and Restated Limited
Liability Company Agreement of MM LLC, dated as of the date hereof made by the
LLC as its sole member, as may be amended, modified and restated from time to
time in accordance with this Agreement.
Metro919: As defined in the Preamble.
Monthly Report: As defined in Section 8.04(b).
MOP: As defined in the Preamble.
Mortgage Loans: As defined in the definition of "Applicable Loans".
Necessary Expenses: Means expenses incurred or required to be
incurred in respect of (i) compliance with Legal Requirements, (ii) amounts
payable under Sections 4.01(e) and 14.22, (iii) obligations under (A) Leases,
(B) Applicable Loans and (C) contracts with third parties entered into (I)
prior to the date hereof and (II) on or after the date hereof in accordance
with the terms of this Agreement, (iv) utility charges, (v) obligations under
the Ground Lease, (vi) amounts payable to or reimbursable to Managing Agent
under the Management Agreement, (vii) wages and benefits to employees, (viii)
insurance, and (ix) protecting against (or deemed necessary or prudent in the
good faith judgment of the Managing Member to protect against) injury to
persons or material damage to property, including, without limitation, in
respect of security and life safety.
Net Extraordinary Cash Flow: The amount, if any, remaining after
subtracting from cash receipts arising from a Major Capital Event (a) all
costs, charges and expenses of the LLC related to such Major Capital Event
(including, without limitation, any transaction costs, loan repayment costs,
prepayment premiums and amounts paid to Metro919 pursuant to Section 4.01(e))
and (b) Capital Reserves. Net Extraordinary Cash Flow shall include any
reduction of Capital Reserves.
Additionally, Net Extraordinary Cash Flow shall include the sum of
the following amounts:
(x) an amount equal to all distributions of "Net Extraordinary
Cash Flow" (as such term is defined in the Property Owner LLC Agreement)
actually made by the Property Owner to the LLC and 919 Member LLC;
(y) an amount equal to all distributions of "Net Extraordinary
Cash Flow" (as such term is defined in the Third Avenue LLC Agreement)
actually made by Third Avenue LLC to the LLC, divided by the LLC's "Percentage
Interest" (as such term is defined in the Third Avenue LLC Agreement) in Third
Avenue LLC at the time of such distributions; and
(z) an amount equal to all distributions of "Net Extraordinary
Cash Flow" (as such term is defined in the MM LLC Agreement) actually made by
MM LLC to the LLC.
-12-
Net Extraordinary Cash Flow shall be determined on the cash basis of
accounting.
Net Income and Net Loss: Mean, respectively, for each Fiscal Year or
part thereof, the taxable income or taxable loss of the LLC for such period as
determined for U.S. federal income tax purposes (inclusive of items required
to be separately accounted for under Section 703(a) of the Code), with the
following adjustments:
(a) there shall be taken into account any tax exempt income of
the LLC,
(b) any expenditures of the LLC which are described in Section
705(a)(2)(B) of the Code or which are deemed to be described in Section
705(a)(2)(B) of the Code pursuant to Regulations under Section 704(b) of the
Code shall be treated as deductible expenses,
(c) if any LLC Asset has a Book Value which differs from its
adjusted tax basis as determined for U.S. federal income tax purposes, income,
gain, loss and deduction with respect to such LLC Asset shall be computed
based upon the LLC Asset's Book Value rather than its adjusted tax basis,
(d) to the extent an adjustment to the adjusted tax basis of
any LLC Asset pursuant to Section 734(b) of the Code is required to be taken
into account in determining Capital Accounts pursuant to Regulations Section
1.704-1(b)(2)(iv)(m)(4) as a result of a distribution other than in
liquidation of a Member's Interests the amount of such adjustment shall be
treated as an item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases the basis of the asset) from the
disposition of the asset and shall be taken into account for purposes of
computing Net Income or Net Loss, and
(e) if the Book Value of any LLC Asset is adjusted pursuant to
clauses (b) or (c) of the definition thereof, the amount of such adjustment
shall be taken into account as gain or loss for purposes of computing Net
Income and Net Loss.
Items of income, gain, deduction, and loss allocated pursuant to
Section 6.03, including "nonrecourse deductions" and "partner nonrecourse
deductions," shall be excluded from the computation of Net Income and Net
Loss.
Net Ordinary Cash Flow: For any given period of time, the Receipts
for such period less the LLC Charges for such period. Net Ordinary Cash Flow
shall be determined on the cash basis of accounting.
New Managing Member: As defined in Section 7.01(b).
Non-Approving Member: As defined in Section 10.01(a).
Non-Contributing Member: As defined in Section 5.02(b).
Non-Transferring Member: As defined in Section 9.02(a)(i).
-13-
Notice Recourse Obligations: The items set forth in section
9.19(b)(i); b(ii); and (b)(iii) of the Goldman Loan Agreement.
NYSTRS: As defined in the preamble to this Agreement.
NYSTRS Committee Member: As defined in Section 7.02(a).
NYSTRS Interest Amount: As defined in Section 10.02(a).
NYSTRS Knowledge Individuals: As defined in Section 13.01(a).
NYSTRS Members: NYSTRS and each of the Members under this Agreement
from time to time which is a permitted transferee of NYSTRS.
NYSTRS Recourse Party: NYSTRS, and any replacement principal of
NYSTRS approved by the Reckson Members.
Offer Notice: As defined in Section 10.01(a).
Offeree Member: As defined in Section 10.02(a).
Offering Price: As defined in Section 9.02(a)(i).
Offeror Member: As defined in Section 10.02(a).
Operating Budget: As defined in Section 7.05(a).
Optional Recourse Obligations: As defined in Section 12.02.
Original LLC Agreement: As defined in the Preamble.
Original Members: As defined in the Preamble.
Outside Date: As defined in Section 5.02(b)(ii).
Overage Rent: As defined in Section 4.01(a)(iv).
Parking Facility: The parking garage, occupying a portion of the
ground floor and the entire first and second basement levels of the Building.
Payoff Period: As defined in Section 4.01(d).
Percentage Interest: As of the date of this Agreement, the
Percentage Interest (the "Initial Percentage Interest") of each Member is as
follows: MOP-6%, Metro919-45% and NYSTRS-49%. Moreover, as of the date hereof,
each of the Members will be credited with having made the Capital Contribution
to the capital of the LLC in the amount set forth opposite such Member's name
in Section 5.01. After the date hereof, the Percentage Interest of each
Member, at any time, shall be the quotient, expressed as a percentage of (a)
the sum of such
-14-
Member's Capital Contributions, divided by (b) the sum of the Members'
aggregate Capital Contributions. Percentage Interests shall be recomputed from
time to time in accordance with Section 5.02(b)(ii).
Permitted Equipment Financings: Financing leases and purchase money
debt, in each case incurred in the ordinary course of business in connection
with the financing or purchase of equipment and other personal property used
at the Property, the payments under all such leases and/or debt not to exceed
an aggregate of $100,000 per annum (as increased on each anniversary of the
date of this Agreement by the CPI Increase);
Permitted Owner: As defined in Section 9.01(b).
Permitted Pledge:
(i) Pledges of direct or indirect equity interests in Reckson OP or
Reckson Associates;
(ii) Pledges to secure debt which is fully recourse to Reckson
Associates or Reckson OP; provided that (A) the credit support for such debt
is not primarily the equity in the Property, and (B) any one or more of the
following conditions are satisfied:
(I) such Pledge is not made primarily for the purpose of
distributing the equity value in the LLC;
(II) the principal amount of such debt is at least two (2)
times the aggregate fair market value of Reckson
Associates' and Reckson OP's direct and indirect
interests in the LLC; or
(III) Reckson Associates' and Reckson OP's direct and indirect
interests in the LLC have a fair market value that is
less than 40% of the total fair market value of the
collateral securing such debt; and
(iii) Pledges to secure debt that is solely recourse to MOP;
provided that (A) the direct and indirect interests in the LLC pledged to
secure such debt do not constitute at the time such Pledge is made more than
30% of the total fair market value of the collateral securing such debt; and
(B) such debt shall not exceed at the time such Pledge is made 75% of the
total fair market value of the collateral securing such debt.
The requirements (including the fair market value determinations) set forth in
clause (B) of paragraph (ii) above and clauses (A) and (B) of paragraph (iii)
above must be satisfied (x) when the Pledge is given, (y) if any collateral is
released which was used to determine whether the tests set forth in paragraphs
(ii) and (iii) are satisfied, then after giving effect to such release, and
(z) if the principal amount of the debt secured by the Pledge is increased
beyond the maximum amount which would have been permitted when the Pledge was
given.
Person: Any individual, corporation, association, partnership,
limited liability company, joint venture, trust, estate or other entity or
organization.
-15-
P.J. Clarke's Litigation: As defined in Section 13.01(a)(xiv).
Pledge: As defined in Section 9.05(a).
Pledgee: As defined in Section 9.05(a).
Pre-Reckson Ownership Leases: All Leases (and amendments to Leases)
currently in effect, which Leases (and Lease amendments) were entered into
prior to Property Owner's acquisition of the Property.
Prime Rate: Means the rate of interest per annum for U.S. Dollar
loans publicly announced from time to time by JP Morgan Chase (or any
successor thereto) as its prime rate in effect in its principal office in New
York City.
Proceeding: As define in Section 13.01(b).
Projections: As defined in Section 8.04(c).
Property: As defined in the Preamble to this Agreement.
Property-Binding Arrangements: Means (A) the Commercial Building
Agreement between the Realty Advisory Board on Labor Relations, Inc. (the
"RAB") and certain labor unions in Manhattan (the "Unions") in effect on the
date hereof and (B) any future agreements (including collective bargaining
agreements) and/or arrangements between the RAB (or its successors) and the
Unions which are binding on the Property.
Property Escrow Agent: As defined in Section 10.01(a).
Property Owner: As defined in the preamble to this Agreement.
Property Owner Claims: As defined in Section 13.01(a)(xiv).
Property Owner LLC Agreement: That certain Amended and Restated
Operating Agreement of Metropolitan 919 3rd Avenue LLC dated as of July 18,
2001, as amended by that certain First Amendment to Amended and Restated
Operating Agreement of Property Owner, dated as of the date hereof by and
between MM LLC, Third Avenue LLC, the LLC and 919 Member LLC, as the same may
be amended, modified and restated from time to time in accordance with this
Agreement.
Purchaser: As defined in Section 9.05(a).
Purchasing Buy/Sell Member: As defined in Section 10.02(b).
Purchasing Party: As defined in Section 10.01(b).
Qualifying Buyer: As defined in Section 10.01(a).
-16-
Receipts: For any given period of time, a sum equal to (1) the
aggregate of all amounts actually received by the LLC in respect of any LLC
Asset, other than distributions received from the Lower Tier Entities, during
such period, including, without limitation:
(a) interest, if any, earned and available to the LLC on any
Cash Reserves or other LLC funds;
(b) the amount of any net reduction of Cash Reserves, other
than any net reduction resulting from the use of Cash Reserves to pay LLC
Charges; and
(c) cash or other immediately available funds (other than
receipts from a Major Capital Event) received by the LLC from any other
source;
plus (2) the following amounts:
(x) an amount equal to all distributions of "Net Ordinary Cash
Flow" (as such term is defined in the Property Owner LLC Agreement) actually
made by the Property Owner directly to the LLC and 919 Member LLC;
(y) an amount equal to all distributions of "Net Ordinary Cash
Flow" (as such term is defined in the Third Avenue LLC Agreement) actually
made by Third Avenue LLC to the LLC, divided by the LLC's "Percentage
Interest" (as such term is defined in the Third Avenue LLC Agreement) in Third
Avenue LLC at the time of such distributions; and
(z) an amount equal to all distributions of "Net Ordinary Cash
Flow" (as such term is defined in the MM LLC Agreement) actually made by MM
LLC to the LLC.
Notwithstanding the foregoing, Receipts shall not include (i)
amounts contributed or loaned by the Members to the LLC pursuant to this
Agreement, (ii) amounts which, although held by the LLC, may not be
distributed to the LLC, or by or for the account of the LLC to its Members
under Legal Requirements or pursuant to the terms of an agreement with a third
party and (iii) amounts arising from a Major Capital Event.
Receipts shall be determined on a cash basis of accounting.
Reckson: As defined in the Preamble to this Agreement.
Reckson Capital Projects: As defined in Section 4.01(a)(ii)(A).
Reckson Committee Member: As defined in Section 7.02(a).
Reckson Entity Agreements: This Agreement, the Third Avenue LLC
Agreement and the 919 Member LLC Agreement.
Reckson Knowledge Individuals: As defined in Section 13.01(a).
-17-
Reckson Members: Metro919, MOP and each of the Members under this
Agreement from time to time which is a permitted transferee of the then
Reckson Members.
Reckson Ownership Leases: All Leases and amendments thereto
(including amendments to Pre-Reckson Ownership Leases) which, in all cases,
were entered into after the Property Owner's acquisition of the Property.
Reckson Recourse Party: MOP, and any replacement principal of the
Reckson Members approved by the NYSTRS Members, provided that NYSTRS
acknowledges and agrees that Reckson OP shall be deemed to be an acceptable
Reckson Recourse Party.
Recommending Member: As defined in Section 10.01(a).
Recording Office: The office of the Secretary of State of the State
of Delaware.
Recourse Party: The Reckson Recourse Party or the NYSTRS Recourse
Party, individually.
Regulations: The regulations issued by the United States Department
of the Treasury under the Code as now in effect and as they may be amended
from time to time, and any successor regulations.
Regulatory Allocations: As defined in Section 6.03(c).
Release: As defined in Section 10.01(a).
Release Indemnity: As defined in Section 10.01(a).
Rents: As defined in Section 4.01(b).
Rep. Basket: As defined in Section 13.01(b).
Rep. Closing Date: As defined in Section 13.01(b).
Requesting Member: As defined in Section 14.08.
Response Period: As defined in Section 10.01(a).
ROFO Closing Date: As defined in Section 9.02(a)(i)(C).
Sale Closing Date: As defined in Section 10.01(a).
Sale Price: As defined in Section 10.01(a).
Schulweis Guaranty: That certain guaranty dated October 27, 2000
made by MOP in favor of 919 Third Avenue Associates L.P. and 919 Fee
Associates L.P..
Secured Liabilities: As defined in Section 9.02(b)(i).
-18-
Selling Buy/Sell Member: As defined in Section 10.02(b)(i).
Senior Manager: With respect to a Person, an individual who holds a
position with such Person of executive vice president or higher at the time in
question.
Special Environmental Tenant: As defined in Section 7.03(d).
Third Avenue LLC: As defined in the Preamble.
Third Avenue LLC Agreement: That certain Amended and Restated
Operating Agreement of Third Avenue LLC, dated as of the date hereof by and
between the LLC and Reckson Mezz. LLC, as the same may be amended, modified
and restated from time to time in accordance with this Agreement.
Third Party Contract: As defined in Section 10.01(a).
Total Reckson Interest: Collectively, (i) the Interests of the
Reckson Members in the LLC; (ii) Reckson Mezz. LLC's .1% membership interest
in Third Avenue LLC and (iii) Metro919's 1.01% membership interest in 919
Member LLC.
Transfer: As defined in Section 9.01(a).
Transfer Date: As defined in Section 12.03.
Transferring Member: As defined in Section 9.02(a)(i).
UBTI: Means "Unrelated Business Taxable Income" as defined in
Section 512 of the Code.
Unaffiliated Member: With respect to the Reckson Members, an
"Unaffiliated Member" is any NYSTRS Member and with respect to the NYSTRS
Members, an "Unaffiliated Member" is any Reckson Member.
Undistributed Income: As defined in Section 14.05.
Union Contracts: As defined in Section 7.03(u).
Upper Tier Transfer: As defined in Section 9.01(a).
ARTICLE II
FILING; NAME; PLACE OF BUSINESS
2.01 Filing. The Members shall execute and acknowledge, and the
Managing Member shall promptly file or record with the proper offices in each
jurisdiction and political subdivision in which the LLC does business, and if
necessary or desirable, cause to be published, the Certificate or amended
certificates, if any, as are required or permitted by the LLC Act, or any
-19-
fictitious name act, or act relating to qualification to do business, or
similar statute or any rule or regulation in effect in such jurisdiction or
political subdivision. The Members shall further execute and acknowledge and
the Managing Member shall promptly file or record such amended certificates or
additional certificates or instruments of whatever nature as may from time to
time be called for or required by such statutes, rules or regulations to
permit the continued existence and operation of the LLC.
2.02 Name of LLC. The name under which the LLC shall conduct its
business is 919 JV LLC or such other name as the Members may select.
2.03 Place of Business. The location of the principal place of
business of the LLC shall be c/o Reckson Associates, 225 Broadhollow Road,
Melville, New York 11747. The principal place of business of the LLC shall be
changed to such other place or places within the United States as the Managing
Member may from time to time determine; provided, that if necessary, the
Members shall amend the Certificate in accordance with the applicable
requirements of the LLC Act.
2.04 Registered Office and Registered Agent. The street address of
the initial registered office of the LLC shall be Corporation Trust Center,
1209 Orange Street, Wilmington, Delaware 19801 and the LLC's registered agent
at such address shall be CT Corporation. The Managing Member may hereafter
change the registered agent and registered office and, if necessary, the
Members shall amend the Certificate in accordance with the applicable
requirements of the LLC Act to reflect such change.
ARTICLE III
PURPOSES, POWERS AND TERM OF LLC
3.01 Purposes. The purposes of the LLC shall be to (a) own, hold,
finance, manage, operate, sell and otherwise dispose or deal with and exercise
any rights it may have with respect to the Lower Tier Entities and (b) do all
other things reasonably incident thereto, each in accordance with the terms of
this Agreement.
3.02 Powers. The LLC shall have the power to do any and all acts and
things necessary, appropriate, advisable or convenient for the furtherance and
accomplishment of the purposes of the LLC, including, without limitation, to
engage in any kind of activity and to enter into and perform obligations of
any kind necessary to, or in connection with, or incidental to, the
accomplishment of the purposes of the LLC, so long as said activities and
obligations may be lawfully engaged in or performed by a limited liability
company under the LLC Act.
3.03 Term of LLC. The existence of the LLC commenced on the date
upon which the Certificate was duly filed with the Recording Office and shall
continue until terminated in accordance with the provisions of Article XI.
-20-
ARTICLE IV
APPORTIONMENTS
4.01 Apportionments. Notwithstanding the provisions of Article V,
the following provisions shall apply:
(a) (i) As of 11:59 P.M. on the day immediately preceding the
date hereof, (x) Metro919, on behalf of the LLC closed the books of the LLC
and (y) the LLC, on behalf of the Lower Tier Entities, closed the books of
each Lower Tier Entity. Subject to the further provisions of this Section
4.01, the Receipts and LLC Charges shall be apportioned as a result thereof
and, except as otherwise provided herein (A) the Reckson Members shall be
entitled to all Receipts from all sources, including, without limitation, from
distributions of the Lower Tier Entities (whether made or received before or
after the date hereof) attributable to proceeds of (I) operations, (II)
leasing, (III) tax certiorari proceedings (subject to the rights of tenants),
(IV) utility or other deposits, (V) financing and (VI) payments on
construction warranties and guarantees in reimbursement of costs which the
Reckson Members (or their Affiliates) either paid prior to the Closing Date or
with respect to liabilities that accrued prior to the Closing Date, each of
such items (I)-(VI) being payable or accruing prior to the date hereof or
which are otherwise allocable to the period prior to the date hereof (whether
received before or after the date hereof), (B) except as otherwise provided in
this Section 4.01, there shall be allocated to the Reckson Members all of the
LLC Charges arising or accruing prior to the date hereof, (C) the LLC shall be
entitled to all Receipts (resulting from distributions of the Lower Tier
Entities (whether made or received before or after the date hereof)) accruing
from and after the date hereof or which are otherwise allocable to the period
on or after the date hereof and (D) there shall be allocated to the LLC all of
the LLC Charges arising or accruing on or after the date hereof. Receipts and
LLC Charges that are allocable to a period of time falling in part before, and
in part on or after, the date hereof shall be apportioned between such
respective portions of the period in question according to the number of days
in each, so that the Reckson Members will receive the portion of such
Receipts, and (except to the extent otherwise provided herein) bear the
portion of such LLC Charges, apportioned to the period before the date hereof,
and the LLC will receive and bear the balance of each.
(ii) Notwithstanding Section 4.01(a)(i) and Article V:
(A) the actual costs incurred in connection with the capital
projects described on Schedule 1 (the "Reckson Capital Projects") shall be
deemed to be costs of the Reckson Members, and the payment by the Reckson
Members of such costs shall not constitute an additional Capital Contribution
on behalf of the Reckson Members and shall not result in the Reckson Members
receiving any other credit or benefit under this Agreement as a result of such
payment;
-21-
(B) all amounts released to the Property Owner from the "D&P
Debt Service Reserve Account" (as such term is defined in the Goldman Loan
Agreement) shall, following its distribution to the LLC, be distributed solely
to the Reckson Members; and
(C) all amounts set forth on Schedule 2 shall be deemed to be
LLC Charges.
(iii) All income, gains, losses, deductions and credits of the LLC
accruing prior to the date hereof shall be allocated to the Reckson Members.
From and after the date hereof, the respective Interests of the Members in the
revenues, distributions, expenses, income, gains, losses, deductions and
credits of the LLC shall be in accordance with the provisions of this
Agreement.
(iv) As to rental payments for fuel pass-alongs, so-called
escalation rent, percentage rent, or charges based upon real estate taxes,
operating expenses, labor costs, "porter's wage rate" cost of living increases
or other similar items (such pass-alongs, escalation rent and charges being
collectively called "Overage Rent") for the accounting period in which the
Closing occurs, if the date of this Agreement is prior to the time when any
such Overage Rent is payable, then such Overage Rent shall be apportioned
subsequent to the date hereof. The Managing Member shall cause the Property
Owner to hold in trust and pay over to the Reckson Members a pro-rated amount
(on a per diem basis) of such Overage Rent as and when collected. As to any
Overage Rent payable subsequent to the date hereof with respect to an
accounting period which ended prior to the date hereof, the Property Owner
shall receive and hold such Overage Rent in trust for the Reckson Members and
pay the entire amount to the Reckson Members promptly after receipt thereof.
If, prior to the date hereof, the Property Owner shall have collected any sums
on account of Overage Rent for any accounting period beginning prior to but
ending subsequent to the date hereof, such sum shall be apportioned as of the
date hereof.
(b) The Managing Member shall cause any and all amounts
received by the Property Owner following the Closing for base rent, Overage
Rent and other charges payable by tenant (collectively "Rents" ) due to the
Property Owner prior to Closing (including an amount equal to the Reckson
Members' share of Rents receivable for the month in which the Closing occurs)
to be paid to the Reckson Members promptly after receipt. If at the time of
Closing any tenants are delinquent in the payment of Rent, then any Rent
received from any such tenant after the Closing shall be applied thereafter in
the following order of priority: (i) first, to Rent arrearages with respect to
the month in which the Closing shall have occurred (subject to the
apportionment described in the preceding sentence), (ii) second, to Rent
arrearages with respect to the month immediately preceding the month in which
the Closing shall have occurred (the "Prior Month") (which shall be paid to
the Reckson Members), (iii) third, to Rent arrearages with respect to the
period following the month in which the Closing shall have occurred (which
shall be paid to the LLC) and (iv) fourth, to any other Rent arrearages with
respect to the period preceding the Prior Month (which shall be paid to the
Reckson Members). The Managing Member shall cause any amounts payable to the
Reckson Members after the Closing to be paid over by the Property Owner to the
Reckson Members promptly after receipt.
-22-
(c) If any tax reduction proceedings in respect of the Property
are pending at the time of the Closing (other than proceedings in respect of
the current tax year or tax years commencing after the date hereof) the
Reckson Members reserve, and shall have, the right to direct the Property
Owner to continue to prosecute the same at no expense to the LLC. The LLC
shall have the right to cause the Property Owner to prosecute tax reduction
proceedings for the current or subsequent tax years. Any distributions to the
LLC attributable to refunds or savings in the payment of taxes with respect to
the Property resulting from tax reduction proceedings applicable entirely to
tax years prior to the current tax year shall belong to and be the property of
the Reckson Members, and any distributions to the LLC attributable to refunds
or savings in the payment of taxes applicable to the tax years commencing from
and after the date hereof shall belong to and be the property of the LLC,
subject in each case to the rights of any tenants to receive any refunds. The
refunds or savings in the payment of taxes applicable to the current tax year
(after payment of all attorneys' fees and other expenses incurred in obtaining
such refunds or savings and subject to the rights of any tenants to receive
refunds) shall be apportioned between the Reckson Members and the LLC on a per
diem basis in accordance with Section 4.01(a)(i).
(d) If the parties apportion any of the items set forth in
paragraphs (a), (b) or (c) above which have been paid on an estimated basis,
such items shall be reapportioned when the actual amounts are finally
determined (including, without limitation, after any tenant audit or dispute
has been finally determined). Managing Member shall cause the Property Owner
to provide to the Members an accounting of all such amounts.
(e) On the first Business Day of each calendar month
(commencing with January, 2002) for 115 consecutive months (the "Payoff
Period"), the LLC shall pay to Metro919 an amount equal to $29,295 (the
aggregate amounts payable pursuant to this sentence are, the "Goldman Loan
Costs"). If prior to the close of the Payoff Period, (i) the Goldman Loan is
paid in full, (ii) the Goldman Loan is refinanced or a defeasance occurs,
(iii) any transaction occurs pursuant to Section 9.02, or Article X below (or
similar transaction) or (iv) the LLC is dissolved pursuant to Article XI below
or the Property is sold, then simultaneously with any of the above events the
LLC shall pay to Metro919 an amount (the "Remaining Amount") equal to the
Goldman Loan Costs less all other amounts previously paid to Metro919 under
this paragraph (e).
(f) MOP shall indemnify and hold harmless the LLC and the
NYSTRS Members from and against all loss, obligation, expense (including
reasonable counsel fees), damage and liability to the Applicable Entities
resulting from claims asserted by third parties, but only if and to the extent
(A) such expenses, obligations, damages and liabilities have arisen or accrued
prior to the date hereof or are based upon events which occurred prior to the
date hereof and (B) are not related to (I) the physical or environmental
condition of the Property or any fixtures or equipment located thereon (except
for an injury, death or third party claim for property damage occurring at the
Property prior to the date hereof which directly results from a physical
condition at the Property existing at the time of such injury) or (II) any
matter that would ordinarily be revealed by a title search and/or survey of
the Property or is covered by NYSTRS' title insurance policy. All expenses,
obligations, damages and liabilities of the Applicable Entities for which the
Reckson Members are not responsible pursuant to this Section 4.01(d)(i) shall
be the responsibility of the LLC from and after the date hereof. MOP shall
indemnify and hold
-23-
harmless the LLC and the NYSTRS Members for any New York State and City real
estate transfer taxes (including any controlling interest transfer taxes) that
are imposed on the Applicable Entities, but only if and to the extent such
taxes (i) are based solely upon transfers and events which occurred prior to
the execution and delivery of this Agreement and (ii) do not result from, in
whole or in part, the transfer of an interest in the LLC to the NYSTRS
Members. If any claim, action or proceeding is made or brought with respect to
the matters set forth in this paragraph, the parties shall follow the
procedures set forth in Section 14.22(e).
(g) The Members intend for each Member's Capital Account as of
the date hereof to equal the amount set forth after such Member's name in
Section 5.01(a) as its Capital Contribution (or deemed Capital Contribution),
after taking into account all distributions and contributions required
pursuant to this Section 4.01 (to the extent such distributions and
contributions will not be offset by a special allocation of income or loss to
a Member by the LLC), which distributions and contributions for this purpose
are all deemed to have been made on the date hereof. The Managing Member is
hereby directed to take such actions, to the extent permitted under Section
704 of the Code and the Treasury Regulations thereunder, as it deems
appropriate in determining (or to adjust) the allocation of Net Income and Net
Loss for any period prior to the date hereof, and in determining (or to
adjust) the Book Value, upon contribution, of any property contributed to the
LLC prior to the date hereof, to carry out the intent of Members set forth in
the preceding sentence.
ARTICLE V
CAPITAL
5.01 Deemed Capital Contributions. (a) As of the date hereof the
Members have made (or are deemed to have made) Capital Contributions in the
following amounts:
NYSTRS $ 98,415,860.01
MOP $ 86,806,805.50
Metro919 $ 15,626,028.39
5.02 Additional Contributions; Shortfall Loans. (a) The Members
shall make additional Capital Contributions in proportion to their respective
Percentage Interests in such amounts (i) as may be required by the Business
Plan, (ii) to enable the Applicable Entities to pay Necessary Expenses as they
become due if the Applicable Entity shall not have sufficient funds to pay the
same, (iii) to fund Cash Reserves in the amount agreed to by the Members on
the date hereof or (iv) as the Management Committee may otherwise approve.
Additional Capital Contributions shall be paid within 10 days after request
therefore by the Managing Member. In the event that Managing Member has failed
to timely request an additional Capital Contribution under this Section
5.02(a), the non-Managing Member (or the Group Agent for the non-Managing
Members, as applicable) may make such request by sending written notice (the
"Capital Call Notice") thereof to the Members and the 10-day period set forth
in the preceding sentence shall commence on the date the Capital Call Notice
is received by the Members.
-24-
Additional capital which is required for the business of a Lower Tier Entity
shall be (x) contributed by the LLC to the capital of the applicable Lower
Tier Entity or (y) loaned by the LLC to such Lower Tier Entity on such loan
terms as are determined by the Managing Member.
(b) If at any time or times a Reckson Member or a NYSTRS Member
shall fail to timely make a Capital Contribution which such Member is
obligated to make under this Section 5.02 (such Member, a "Non-Contributing
Member"), and such failure shall continue for a period of 10 Business Days
after notice of such failure, the rights and remedies set forth below in this
Section 5.02(b) shall apply. Such remedies may be exercised (as between such
remedies) on a cumulative and nonexclusive basis but shall collectively
constitute the exclusive remedies available against a Non-Contributing Member.
(i) If the Reckson Members, on the one hand, or the NYSTRS
Members, on the other hand, have timely made their own Capital Contributions
(as applicable, the "Contributing Member"), the Contributing Member may (but
shall not be obligated to), within 30 days after the expiration of the 10
Business-Day period referred to above (x) request in writing that its Capital
Contribution be returned, in which case the Managing Member shall cause the
LLC to immediately return such Capital Contribution to the Contributing Member
or (y) advance all or any part of the portion of the Capital Contribution
which the Non-Contributing Member has failed to make (the amount so advanced,
the "Default Amount") to the LLC, and such advance shall be treated as a loan
from the Contributing Member to the Non-Contributing Member and as a Capital
Contribution by the Non-Contributing Member to the LLC. The Contributing
Member shall give notice thereof to the Non-Contributing Member upon the
Contributing Member's loan of the Default Amount. Any such loan of the Default
Amount made by a Contributing Member to the Non-Contributing Member is
referred to herein as a "Default Loan". Each Default Loan shall bear interest
on the unpaid principal amount thereof at the Default Loan Rate from the date
advanced until the date repaid. The Non-Contributing Member may repay the
Default Loan, plus all accrued and unpaid interest thereon, at any time prior
to the Conversion Date.
(ii) In the case of Default Loans, if any Default Loan, plus
all interest accrued thereon, is not repaid in full to the Contributing Member
on or prior to the date that is 180 days after such Default Loan was made (the
"Outside Date"), then the Contributing Member shall have the option,
exercisable within 30 days following the Outside Date, to convert the
outstanding amount of the Default Loan, plus all accrued interest thereon,
into a Capital Contribution by the Contributing Member (a "Contributing Member
Contribution"). Such option shall be exercised, if at all, by written notice
given by the Contributing Member to the Non-Contributing Member no later than
30 days following the Outside Date (the date of such notice, the "Conversion
Date"). If the Contributing Member elects to make a Contributing Member
Contribution, then for all purposes of this Agreement, the Capital
Contributions of (I) the Contributing Member shall be deemed to be increased,
as of the Conversion Date, by the product of (x) the applicable Contributing
Member Contribution and (y) 1.35 and (II) the Non-Contributing Member shall be
deemed to be decreased, as of the Conversion Date, by the Contributing Member
Contribution and for purposes of determining each Member's Capital Account (in
addition to the amounts treated as Capital Contributions under Section
5.02(b)(i) but not for any other purpose of this Agreement) the LLC shall be
deemed to have made a distribution to the Non-Contributing Member of an amount
of cash equal to the Contributing
-25-
Member Contribution and the Contributing Member shall be deemed to have
contributed an equal amount of cash to the LLC. If the principal and interest
due on a Default Loan shall be converted into a Capital Contribution pursuant
to this Section 5.02(b)(ii), then (x) no subsequent payment or tender of
payment by the Non-Contributing Member of the amount so converted or
contributed shall affect the Members' Capital Contributions and Percentage
Interests as recalculated in accordance with this Agreement and (y) the
Non-Contributing Member shall have neither the right nor the obligation to
repay any such principal or interest. Any gain or loss resulting from an
adjustment to the Book Value of any LLC Asset in connection with a
Contributing Member Contribution shall be allocated in accordance with Section
6.02(b) (and Section 6.03(d) shall not apply), so that the Members' Capital
Accounts will reflect, to the extent possible, the amount they would receive
on a liquidation of the LLC, if liquidating distributions were made in
accordance with Section 6.05 immediately after such contribution.
(c) The Reckson Members may make additional Capital Contributions
under this Section 5.02 in such proportions as they shall agree amongst
themselves, so long as the aggregate amount contributed (other than any amount
deemed contributed under Section 5.02(b)) by the Reckson Members does not
exceed the product of Reckson Members' aggregate Percentage Interests
multiplied by the aggregate amount of such additional Capital Contribution.
5.03 Liability of Members. Except as otherwise provided in the LLC
Act and this Agreement, the debts, obligations and liabilities of the LLC,
whether arising in contract, tort or otherwise, shall be solely the debts,
obligations and liabilities of the LLC, and the Members shall not be obligated
personally for any such debt, obligation or liability of the LLC solely by
reason of being a Member. The failure of the LLC to observe any formalities or
requirements relating to the exercise of its powers or management of its
business or affairs under the LLC Act or this Agreement shall not be grounds
for imposing personal liability on the Members for liabilities of the LLC.
5.04 Return of Capital. Except as may be specifically provided in
this Agreement, no Member shall have the right to demand or to receive the
return of all or any part of its Capital Account or its Capital Contributions
to the LLC.
ARTICLE VI
ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS
6.01 Capital Accounts. (a) Each Member shall have a Capital Account
which shall be maintained in accordance with Regulations Section
1.704-1(b)(2)(iv).
(b) The Capital Account of each Member shall be increased (i)
by the amount of cash and the fair market value of any property (net of
liabilities that the LLC is considered to assume, or take property subject to,
under Section 752 of the Code) contributed by such Member to the LLC and (ii)
by any Net Income or items of income or gain allocated to such Member pursuant
to Section 6.02 and any item in the nature of income or gain specially
allocated to such Member pursuant to Section 6.03.
-26-
(c) The Capital Account of each Member shall be reduced by (i)
the amount of cash and the fair market value of any property (net of
liabilities that the Member is considered to assume, or take property subject
to, under Section 752 of the Code) distributed to such Member and (ii) by any
Net Loss or items of loss or deductions allocated to such Member pursuant to
Section 6.02 and any item in the nature of loss or deduction specially
allocated to such Member pursuant to Section 6.03.
(d) In the event that all or a portion of an Interest in the
LLC is transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to the
extent it relates to the transferred Interest.
(e) Except as otherwise provided in this Agreement, whenever it
is necessary to determine the Capital Account of any Member, the Capital
Account of such Member shall be determined after giving effect to the
allocations of Net Income, Net Loss and other items realized prior or
concurrently to such time (including, without limitation, any Net Income and
Net Losses attributable to adjustments to Book Values with respect to any
concurrent distribution), and all contributions and distributions made prior
or concurrently to the time as of which such determination is to be made.
6.02 Allocation of Net Income or Net Loss. (a) After giving
effect to the special allocations set forth in Section 6.03 and Section
6.02(b), Net Income shall be allocated to the Members in proportion to the
excess, if any, of (i) the amount that would be distributed to each Member if
all of the LLC Assets were sold for their Book Value, the LLC was liquidated,
and liquidating distributions were made pursuant to Section 6.05, over (ii)
the balance in each such Member's Adjusted Capital Account. After giving
effect to the special allocations set forth in Section 6.03 and Section
6.02(b), Net Loss shall be allocated to the Members in proportion to the
excess, if any, of (i) the balance in each Member's Adjusted Capital Account
over (ii) the amount that would be distributed to such Member if all of the
LLC Assets were sold for their Book Value, the LLC was liquidated, and
liquidating distributions were made pursuant to Section 6.05.
(b) Notwithstanding Section 6.02(a), the gross amount of the
LLC's items of income and gain and the gross amount of the LLC's items of loss
and deduction includable in Net Income or Net Loss shall be allocated (rather
than Net Income and Net Loss) in the same manner as Net Income and Net Loss,
respectively, as set forth in Section 6.02(a), if such allocations would
decrease the difference between the Members' Adjusted Capital Account balances
and the amounts the Members would receive upon the hypothetical liquidation of
the LLC under Section 6.02(a).
(c) Any Net Income or Net Loss not allocated under Sections
6.02(a) and 6.02(b) shall be allocated to the Members pro rata in accordance
with the Members' respective Percentage Interests.
6.03 Special Allocations. (a) Notwithstanding any other
provision of this Agreement, "partner nonrecourse deductions" (as defined in
Regulations Section 1.704-2(i)), if any, of the LLC shall be allocated to the
Member who bears the economic risk of loss with
-27-
respect to the debt to which such deductions are attributable in accordance
with Regulations Section 1.704-2(i), and "nonrecourse deductions" (as defined
in Regulations Section 1.704-2(b)(1)) of the LLC shall be allocated to the
Members in accordance with their Percentage Interests.
(b) This Agreement shall be deemed to include "qualified income
offset," "minimum gain chargeback" and "partner nonrecourse debt minimum gain
chargeback" provisions within the meaning of the Regulations under Section
704(b) of the Code. Accordingly, notwithstanding any other provision of this
Agreement, items of income, gain, loss, and deduction shall be allocated to
the Members to the extent and in the manner required by such provisions.
(c) Any allocations required to be made pursuant to Section
6.03(a) and Section 6.03(b) (the "Regulatory Allocations") (other than
allocations, the effect of which are likely to be offset in the future by
other special allocations) shall be taken into account, to the extent
permitted by the Regulations, in computing subsequent allocations of income,
gain, loss or deduction pursuant to Section 6.02 so that the net amount of any
items so allocated and all other items allocated to such Member shall, to the
extent possible, be equal to the amount that would have been allocated to each
Member pursuant to Section 6.02 had such Regulatory Allocations under this
Section 6.03 not occurred.
(d) Notwithstanding anything herein to the contrary, except as
set forth in Section 5.02(b)(ii) for each Fiscal Year or part thereof, the
LLC's allocable share of the Property Owner's items of income, gain, loss, and
deduction (including its share of such items which are allocated to it from
Third Avenue LLC and MM LLC) for such period shall be allocated among the
NYSTRS Members and the Reckson Members in the following proportions:
(i) to the NYSTRS Members in an amount equal to the
Property Owner's items of income, gain, loss, and deduction, which are
allocated to all of the members of the Property Owner for such period, times
the NYSTRS Members then Percentage Interest, and
(ii) the LLC's remaining allocable share of the Property
Owner's items of income, gain, loss, and deduction for such period, to the
Reckson Members in accordance with Section 6.02, as if the NYSTRS Members were
not then a Member of the LLC.
This Section 6.03(d) shall not apply in the year the LLC
liquidates if the suspension of this provision would permit the NYSTRS Members
to receive an amount on liquidation of the LLC pursuant to Section 11.03 that
reflects, to the extent possible, the amount it would have received had
liquidating distributions been made in accordance with Section 6.05.
6.04 Tax Allocations; Allocation of Income and Loss. (a) For
federal income tax purposes, except as otherwise provided in Section 6.04(b),
each item of income, gain, loss and deduction shall be allocated among the
Members in the same manner as its corresponding item of book income, gain,
loss or deduction is allocated pursuant to this Article VI.
(b) In accordance with Code Sections 704(b) and 704(c) and the
Regulations thereunder, income, gain, loss and deduction with respect to any
LLC Asset contributed (or
-28-
deemed contributed) to the capital of the LLC shall, solely for federal income
tax purposes, be allocated among the Members so as to take into account any
variation between the adjusted basis of such LLC Asset for federal income tax
purposes and its Book Value upon its contribution (or deemed contribution). If
the Book Value of any LLC Asset is adjusted, subsequent allocations of taxable
income, gain, loss and deduction with respect to such LLC Asset shall take
account of any variation between the adjusted basis of such LLC Asset for
federal income tax purposes and the Book Value of such LLC Asset in the manner
prescribed under Code Sections 704(b) and 704(c) and the Regulations
thereunder. Any elections or decisions relating to such allocations shall be
made by the Managing Member in a manner that reasonably reflects the intent of
this Agreement. Allocations pursuant to this Section 6.04(b) are solely for
tax purpose and shall not affect any Member's Capital Account.
(c) If any Interest is transferred during any Fiscal Year in
accordance with this Agreement, the Net Income or Net Loss (and other items
referred to in Section 6.02) attributable to such Interest for such Fiscal
Year shall be allocated between the transferor and the transferee by closing
the books of the LLC as of the date of the transfer, or by any other method
permitted under Code Section 706 and the Regulations thereunder and agreed to
by the Members, including the transferor and the transferee.
(d) The provisions of this Article VI (and other related
provisions in this Agreement) pertaining to the allocation of items of LLC
income, gain, loss, deductions, and credits shall be interpreted consistently
with the Regulations, and to the extent unintentionally inconsistent with such
Regulations, shall be deemed to be modified to the extent necessary to make
such provisions consistent with the Regulations.
6.05 Distributions of Net Ordinary Cash Flow and Net
Extraordinary Cash Flow. (a) Priority of Default Loans. For so long as any
Default Loan shall remain outstanding, all amounts which otherwise would be
distributed under Section 6.05(b), Section 6.05(c) or Section 11.03 or any
other provision of this Agreement to a Member who is an obligor under a
Default Loan shall be applied instead to repay all outstanding Default Loans,
pro rata in proportion to the outstanding principal amounts thereof, to be
applied first on account of accrued and unpaid interest and next on account of
principal. Any amounts so applied shall be treated for all purposes of this
Agreement as having been distributed to the Member which is an obligor under
such Default Loan.
(b) Distributions of Net Ordinary Cash Flow. Except as provided
in Section 6.05(a) or Section 11.03, Net Ordinary Cash Flow shall be
distributed to the Members pari passu in the following proportions:
(i) to the NYSTRS Members, pro rata in proportion to their
respective Percentage Interests, in an amount equal to the NYSTRS Members'
Percentage Interest multiplied by the Net Ordinary Cash Flow, and
(ii) the remainder to the Reckson Members in proportion to
their respective Percentage Interests.
-29-
If there is any change in Percentage Interests during any Fiscal Year, the
Managing Member shall (i) for purposes of this Section 6.05(b), calculate
Percentage Interests on a "weighted average" basis as of the end of each
calendar month on a cumulative year-to-date basis and (ii) calculate Net
Ordinary Cash Flow as of the end of each calendar month on a cumulative
year-to-date basis and apply and distribute Net Ordinary Cash Flow on or
before the 24th day of the following month. To accomplish the foregoing,
Managing Member shall cause the Lower Tier Entities to distribute "Net
Ordinary Cash Flow" (as defined in each Lower Tier LLC Agreement) on the same
monthly basis as set forth in the preceding sentence. Notwithstanding the
foregoing, which is intended to permit interim distributions of Net Ordinary
Cash Flow, the Managing Member shall calculate the weighted average Percentage
Interests and Net Ordinary Cash Flow on an annual basis, and if the Annual
Report of the LLC shall show that there was any over-distribution of Net
Ordinary Cash Flow to a Member, such Member shall (A) repay the
over-distribution within 30 days without interest thereon, after receipt of
such report, or (B) be subject to an off-set for such over-distribution on the
date or dates of the next distributions of Net Ordinary Cash Flow until such
over-distribution is recovered by the LLC. If such Annual Report shall show
that there was an under-distribution of Net Ordinary Cash Flow to a Member,
such under-distribution shall be paid to such Member without interest thereon,
within 30 days after receipt of such report or as promptly thereafter as there
is sufficient Net Ordinary Cash Flow. For purposes hereof, the "weighted
average" Percentage Interest for any Member shall be calculated for any period
as the quotient of (I) the sum of the Percentage Interests of such Member on
each day during such period divided by (II) the number of days during such
period.
(c) Net Extraordinary Cash Flow. The Managing Member shall
calculate Net Extraordinary Cash Flow (other than as set forth in Section
6.05(a) and Net Extraordinary Cash Flow arising from a sale incidental to the
dissolution and liquidation of the LLC which shall be distributed in
accordance with Section 11.03) and apply and distribute such Net Extraordinary
Cash Flow, reasonably and promptly after the LLC's receipt thereof, to the
Members pari passu in the following proportions:
(i) to the NYSTRS Members, pro rata in proportion to their
respective Percentage Interests, in an amount equal to the NYSTRS Members'
Percentage Interest, multiplied by the Net Extraordinary Cash Flow; and
(ii) the remainder to the Reckson Members in proportion to
their respective Percentage Interests.
The Managing Member agrees to cause the Lower Tier Entities to distribute "Net
Extraordinary Cash Flow" (as defined in each Lower Tier LLC Agreement)
promptly following the applicable Lower Tier Entity's receipt thereof.
(d) No Restoration of Funds. Except as provided in Section
6.05(b), no Member shall be required to restore to the LLC any funds properly
distributed to such Member pursuant to any of the provisions of this Section
6.05 or Section 11.03 unless required by Legal Requirements.
-30-
(e) Limitation on Distributions. No Member shall be entitled to
(i) receive any distribution from the LLC (including a withdrawal of any of
such Member's capital) except pursuant to this Section 6.05, (ii) receive
interest from the LLC upon any capital contributed to the LLC, or (iii)
receive property other than cash in return for such Member's Capital
Contributions.
6.06 Compliance with the Fractions Rule. The Members intend for
the provisions of this Agreement regarding the maintenance of Capital Accounts
and the allocation and distribution provisions of this Article IV, including
Section 6.03(d), to comply at all times with the "fractions rule" of Section
514(c)(9)(E) of the Code and Treasury Regulation Section 1.514(c)-2; provided,
that the foregoing shall not affect the amount or timing of any distributions
of cash or property to any Member pursuant to the provisions of Section 6.05
and 11.03.
6.07 Withholding Taxes. If the LLC is required to withhold any
portion of any distribution or allocation to a Member by applicable federal,
state, local or foreign tax laws, the LLC shall withhold such amounts and make
such payments to such taxing authorities as are necessary to ensure compliance
with such tax laws. Any funds withheld by reason of this Section 6.07 shall
nonetheless be deemed distributed or allocated (as the case may be) to the
Member in question for all purposes under this Agreement. If the LLC makes any
payment to a taxing authority in respect of a Member hereunder that is not
withheld from actual distributions to the Member, then the LLC may, at its
option, (i) require the Member to reimburse the LLC for such withholding; or
(ii) reduce any subsequent distributions to such Member by the amount of such
withholding. The obligation of a Member to reimburse the LLC for taxes that
were required to be withheld shall continue after such Member Transfers its
interest in the LLC or after a withdrawal by such Member. Each Member agrees
to furnish the LLC with any representations and forms as shall reasonably be
requested by the LLC to assist it in determining the extent of, and in
fulfilling, any withholding obligations it may have.
ARTICLE VII
MANAGEMENT
7.01 Managing Member. (a) General. Managing Member shall carry
out and implement the day-to-day affairs of the LLC in accordance with the
approved Business Plan or otherwise within the scope of the authority granted
to Managing Member pursuant to this Agreement, including, without limitation
this Section 7.01. Managing Member agrees to devote to the LLC's business such
time as reasonably shall be necessary in connection with its duties and
responsibilities hereunder. Managing Member shall be authorized to take any
action which is specifically authorized or contemplated by the approved
Business Plan, to make any expenditure set forth in an approved Budget, or as
otherwise expressly authorized by this Agreement. Without limiting the
foregoing, but subject to the terms of this Agreement (including Section 7.03
below) and the LLC Act, and provided the same shall not be expressly
prohibited under this Agreement, Managing Member shall have and may exercise
without the consent of any other party all the powers of the LLC, including,
without limitation, the full power to:
-31-
(i) cause the LLC or any Lower Tier Entity, directly or
through its agents, at all times to perform and comply with the provisions of
any loan commitment, agreement, Mortgage Loan document, deed of trust, lease,
construction contract or other contract, instrument or agreement permitted
hereunder to which the LLC or such Lower Tier Entity is a party or which
affects the Property or the operation thereof;
(ii) cause the Property Owner to keep and maintain at
least such insurance coverage as may be required by the holder of any
outstanding Mortgage Loan or otherwise permitted hereunder;
(iii) open and maintain bank accounts for funds of the LLC
or cause a Lower Tier Entity to open and maintain bank accounts for its funds;
(iv) cause the Property Owner to employ independent
unaffiliated contractors for the ordinary maintenance and repair of the
Property or, subject to the provisions of Section 7.06, Affiliated contractors
in accordance with the terms of this Agreement;
(v) cause the Property Owner to retain or engage
independent unaffiliated real estate brokers licensed to do business in New
York;
(vi) cause the Property Owner to enter into Leases except
for Major Leases or Leases which deviate materially from the approved Leasing
Guidelines (on a net present value basis) unless, in each instance, the same
have been approved by the Management Committee;
(vii) execute and deliver agreements and documents on
behalf of the LLC or a Lower Tier Entity which (A) are contemplated by an
approved Business Plan or are entered into in connection with the payment of
Necessary Expenses, (B) are made and executed in the ordinary course of
business that do not grant any lien or encumbrance on the Property (except as
specifically authorized under this Agreement), (C) are agreements executed in
connection with the performance of Reckson Capital Projects or (D) are
otherwise approved by the Management Committee and do not constitute a Major
Decision or otherwise require approval by the Unaffiliated Members;
(viii) cause the Property Owner to act under the
Management Agreement, subject to the approval of the Management Committee
where such acts would (x) constitute a Major Decision or (y) involve the
declaration of a default by Managing Agent or the Property Owner, or (z)
involves the exercise of remedies against Property Owner by the Managing
Agent;
(ix) cause the LLC or any Lower Tier Entity to engage
attorneys, accountants and other advisors; and
(x) to make any and all tax elections required or
permitted to be made under the Code, and any applicable state, local or
foreign tax law including any election under Section 754 of the Code.
-32-
(b) Managing Member Removal. The Managing Member may be removed
as Managing Member by written notice from the "non-Managing Member", which
shall mean (x) the NYSTRS Members, in the event a Reckson Member is the
Managing Member or (y) Metro919 (in its capacity as the Reckson Members' Group
Agent) in the event a NYSTRS Member is the Managing Member, in each case upon
ten (10) Business Days written notice, should any of the following events
occur, each of which shall be considered a "Managing Member Default":
(i) if the Managing Member shall become Bankrupt;
(ii) it is finally determined by a court or forum of
competent jurisdiction that the Managing Member committed fraud or willful
misconduct in the conduct of its duties under this Agreement and the same
materially adversely affects the value of the LLC;
(iii) an unpermitted Transfer by the Managing Member or
its Affiliated Member shall have occurred; or
(iv) the Percentage Interest of the Managing Member and
its Affiliated Members shall collectively be less than 20%.
Notwithstanding any other term of this Agreement, in the event
that a default described in clause (iii) above (a "Clause (iii) Default")
shall have occurred, a Managing Member Default shall not be deemed to have
occurred until the Managing Member shall have received a written notice of
default (a "Clause (iii) Default Notice") from the non-Managing Member
specifying such default and the Managing Member shall not have cured the
claimed default to the satisfaction of the non-Managing Member within a period
of 30 days and if the cure cannot reasonably be completed within such 30-day
period, then the Managing Member shall have an additional 30-day period to
effect the cure so long as the Managing Member is diligently prosecuting the
cure within such additional 30-day period; provided, in the event a Clause
(iii) Default shall have occurred and a Clause (iii) Default Notice is given
and such Clause (iii) Default is cured within the cure periods set forth
above, then, with respect to any subsequent Clause (iii) Default Notice
received following a subsequent Clause (iii) Default, Managing Member shall
not be entitled to any of the cure periods set forth above and such second
Clause (iii) Default Notice shall serve as the Managing Member Default notice
required under the first sentence of Section 7.01(b). The Managing Member
shall not be removed by an Unaffiliated Member on account of the Managing
Member Defaults set forth in clauses (i) and (iii) if on or prior to the date
of such Managing Member Defaults the non-Managing Member shall have committed
or suffered to have occurred with respect to it an action or an event of a
nature comparable to any of the Managing Member Defaults set forth in clauses
(i) and (iii) and shall not have remedied such defaults within the cure
periods provided above.
If the Managing Member is removed pursuant to this Section
7.01(b) (the Managing Member so removed is the "Former Managing Member" and
the date of such removal is the "Managing Member Replacement Date"), then
immediately upon such removal, the Unaffiliated Member shall become the new
Managing Member (the "New Managing Member") or, if there is more than one
Unaffiliated Member, such Unaffiliated Members' Group Agent shall appoint the
New Managing Member and, in each case, the New Managing Member
-33-
shall succeed to all the rights and obligations of the Former Managing Member
hereunder; provided that, as between the Members, the New Managing Member
shall not be subject to liability based upon the wrongful acts of the Former
Managing Member, which acts occurred during the period of time that Former
Managing Member was Managing Member. From and after the Managing Member
Replacement Date (x) the Recourse Party affiliated with the New Managing
Member shall be bound by the obligations set forth in Article XII (without the
taking of any further action or the execution of any further documents) and
(y) New Managing Member will have the option to terminate the Management
Agreement and any other Affiliate Agreement on behalf of the LLC and, with
respect to the Management Agreement, propose a successor Managing Agent,
subject to the Former Managing Member's reasonable approval, which approval
shall be deemed to have been given if the successor Managing Agent is an
Approved Agent.
(c) Exculpation. The Managing Member shall not be liable to the
LLC or to the Members for any act performed or omitted to be performed by it
on behalf of the LLC, provided such act or omission was taken in good faith,
was reasonably believed by the Managing Member to be in the interests of the
LLC and within the scope of authority granted or reserved to the Managing
Member under this Agreement, and did not constitute fraud or willful
misconduct.
7.02 Management Committee. (a) The Reckson Members, on the one
hand, and NYSTRS Members, on the other hand, shall each elect one (1) member
(the "Reckson Committee Member" and the "NYSTRS Committee Member",
respectively) of a management committee (the "Management Committee"), which
shall consist of a total of two (2) members. The Reckson Members and NYSTRS
may each appoint up to three (3) alternate members of the Management Committee
(consisting of a total of up to six (6) alternate members). The Management
Committee shall meet regularly to review the operations of the Applicable
Entities and the Property but not less often than once per calendar quarter.
Any one of the alternate members appointed by the Reckson Committee Member and
by the NYSTRS Committee Member shall be entitled to act on behalf of the
Reckson Committee Member and the NYSTRS Committee Member, respectively, in
their absence. The Reckson Members, or NYSTRS, may, at any time upon not less
than 2 days prior written notice to the other, change its member or alternate
members of the Management Committee.
As of the date hereof, the Reckson Members appoint Philip M.
Waterman III as its member of the Management Committee and Gregg Rechler,
Richard Conniff and FD Rich III as alternate members to the Management
Committee.
As of the date hereof, NYSTRS appoints James McLoughlin as its
member of the Management Committee and James Walsh, Ann Cole and Hilary Spann
as alternate members to the Management Committee.
(b) The Management Committee shall meet at the request of the
Reckson Members' Group Agent or NYSTRS. Such meetings may be called by either
member of the Management Committee upon not less than 2 Business Days prior
notice to the other member of the Management Committee. The attendance of a
member of the Management Committee at a
-34-
meeting of the Management Committee either in person or telephonically (other
than for the purposes of protesting the absence of notice of the meeting)
shall constitute a waiver of notice of such meeting. The meetings of the
Management Committee may be held (i) at the Property or the principal place of
business of the Managing Agent if in Manhattan, (ii) by telephone conference
or (iii) by other means determined by the members of the Management Committee.
No meeting shall be conducted unless both of the members of the Management
Committee are present. Telephonic participation in any meeting by either
member of the Management Committee shall constitute such member's presence at
such meeting for all purposes of this Agreement. Any decision made by the
Management Committee at a duly convened meeting shall constitute the act of
and approval by the Management Committee and shall be binding upon the LLC.
The decisions of the Management Committee shall be reflected in the minutes of
the Management Committee meetings or in resolutions adopted by the Management
Committee. Any decision or other action required or permitted to be taken at
any meeting of the Management Committee may be taken without a meeting by
written resolution if a copy of such resolution is delivered to both members
of the Management Committee and shall be effective upon the date on which both
members of the Management Committee consent thereto in writing.
(c) Failure by a member of the Management Committee (or such
member's alternate) to be present at a scheduled meeting of the Management
Committee shall constitute a deadlock between the Management Committee members
with respect to the matter(s) which are the subject of such meeting and,
accordingly, such matter(s) shall be deemed disapproved.
(d) The members of the Management Committee shall not receive
compensation for their positions as members of the Management Committee. Each
Member shall pay all expenses associated with its Management Committee
member's attendance of meetings of the Management Committee.
(e) Each Management Committee member may, in making Major
Decisions, act in the interests of the Member it represents without
considering the interests of the LLC or of any Unaffiliated Member and without
incurring any liability therefor to the LLC or any Unaffiliated Member
(including, without limitation, any liability for breach of fiduciary
obligations).
7.03 Major Decisions. Without the unanimous approval of the
Management Committee, the Managing Member will not be permitted to cause the
LLC to take (or, when applicable, cause a Lower Tier Entity to take) any
action that would constitute a Major Decision. The "Major Decisions" are:
(a) selling, transferring, assigning, conveying, exchanging or
otherwise disposing of the LLC Assets or the assets of a Lower Tier Entity
other than (i) personal property, fixtures and equipment at the Property which
may be disposed of or replaced due to wear and tear or obsolescence or
otherwise in the ordinary course of business, (ii) Leases, which shall be
governed by Section 7.03(d) and (iii) a sale of the Property, in accordance
with Section 10.01;
(b) borrowing money on behalf of the LLC or a Lower Tier Entity
(including any Mortgage Loan other than the Goldman Loan) whether on a secured
or unsecured basis
-35-
(other than Permitted Equipment Financings) or refinancing, recasting,
extending, compromising or otherwise materially amending any Mortgage Loan or
unsecured loan;
(c) purchasing any additional real property;
(d) entering into a Lease:
(i) of more than one floor of the Building (regardless of
the size of the floor);
(ii) of more than 31,000 rentable square feet in the
aggregate if such Lease demises office space on
multiple floors of the Building;
(iii) for the Parking Facility (each of (i), (ii) and (iii)
is a "Major Lease");
(iv) which materially deviates (on a net present value
basis) from the parameters of the Leasing Guidelines;
or
(v) with a "Special Environmental Tenant" (as such term
is defined in the Environmental Indemnity), so long
as the Environmental Indemnity shall remain in
effect;
(e) (i) instituting any major litigation where the amount in
controversy exceeds $500,000; provided that the Managing Member may, upon
notice to the Members but without the Management Committee's consent,
institute any litigation against a tenant which has defaulted under its Lease
or (ii) settle any major litigation or dispute where the LLC or a Lower Tier
Entity is obligated to make a payment greater than $500,000 net of insurance
recoveries; provided that the Managing Member will agree to notify the Members
prior to settling any litigation that does not require the Management
Committee's consent if the LLC or a Lower Tier Entity is obligated to make a
payment of greater than $20,000 net of insurance recoveries to effectuate such
settlement;
(f) approving any material modification to an Applicable
Entity's or Managing Agent's existing insurance program, such approval not to
be unreasonably withheld or delayed and shall be deemed approved if the
non-Managing Member(s) shall fail, within 10 days following Managing Member's
delivery to the non-Managing Member(s) of a notice of such modification,
object in writing (such objection to state the basis for the same). A
"material modification" shall not be deemed to have occurred if Managing
Member or Managing Agent shall modify an insurance program to (i) cause
Property Owner to be in compliance with (x) an outstanding Mortgage Loan, (y)
a Major Lease (or any other Lease approved by all Unaffiliated Members) or (z)
the Ground Lease or (ii) replace an existing insurance carrier so long as the
replacement carrier has a rating in Best Insurance Reports not lower than the
rating of the existing insurance carrier at the time the existing carrier was
approved (it being acknowledged that if a change in insurance carriers shall
be accompanied by a material increase in the cost and/or a material reduction
in the scope of insurance coverage, such change shall be deemed a "material
modification"). Any dispute arising under this clause (f) shall be resolved by
arbitration in
-36-
accordance with Article XV and, until such dispute shall be resolved, Managing
Member shall (to the extent commercially practicable) cause the Applicable
Entity or Managing Agent to maintain the insurance program(s) in effect
immediately prior to the modification in dispute;
(g) selecting or changing the auditor for the LLC or a Lower
Tier Entity; provided the non-Managing Members shall (x) not unreasonably
withhold or delay their consent to any so-called "Big-Five" accounting firm
selected by Managing Member and (y) be deemed to have consented to the
"Big-Five" accounting firm in question if within 10 days following Managing
Member's delivery of a written notice stating the proposed "Big Five" auditor,
the non-Managing Member(s) fail to object in writing (such objection to state
the basis for the same). Any dispute arising under this clause (g) shall be
resolved by arbitration in accordance with Article XV;
(h) approving a modification to the Management Agreement;
(i) approving any proposed material changes to the zoning of
the Property other than those expressly contemplated by an approved Business
Plan;
(j) admitting additional members into an Applicable Entity
other than transferees (or pledgees) permitted under this Agreement;
(k) incurring, or causing a Lower Tier Entity to incur, any
expenditure, charge or cost in any Fiscal Year (other than Necessary Expenses)
which is inconsistent with the Business Plan or exceeds (i) a Major Line Item
by more than 5% or (ii) the aggregate amount of the Budgets by more than 2%
(exclusive of increases attributable to temporary timing differences arising
in the ordinary course of business which Managing Member reasonably expects
will be reversed over time);
(l) engaging in any transaction between an Applicable Entity
and any Member or Affiliate of a Member other than (A) the Management
Agreement entered into on the date hereof (and the transactions with
Affiliates permitted thereby) and (B) the transactions described in Section
7.04 below;
(m) modifying or supplementing any organizational documents of
any Applicable Entity;
(n) dissolving, terminating or liquidating any Applicable
Entity or causing or permitting any Applicable Entity to merge, consolidate or
otherwise combine with any other Person (including any Applicable Entity);
(o) the taking of any of the following actions to the extent
such actions would result in the LLC recognizing income that would be UBTI, if
earned by an organization subject to the tax under Section 511 of the Code:
(i) the acquisition by the LLC of any property to be held
primarily for sale to customers in the ordinary course of the LLC's trade or
business or that would be required to be included in inventory in the hands of
the LLC, or the holding by the LLC of any property
-37-
primarily for sale to customers in the ordinary course of the LLC's trade or
business, that in either case the sale of which will result in more than
$175,000 (to be increased by the CPI Increase) in net income annually,
provided that the foregoing shall not include any services nor any goods
provided in connection with any service;
(ii) the renting by the LLC of any property pursuant to a
lease under the terms of which rent depends in whole or in part on the net
income or profits derived by any person from the property or improvements
leased, provided that the foregoing shall not include rent that is based on a
fixed percentage or percentages of receipts or sales.
(iii) the renting by the LLC of any real property for
which any portion of the rent (other than a de minimis amount) is attributable
to services provided by the LLC (other than usual or customary services
provided by landlords leasing space for occupancy only);
(iv) the incurrence by the LLC of any indebtedness in
acquiring or improving any real property where the amount of the indebtedness
or any amount payable with respect to such indebtedness, or the time for
making any payment, is dependent, in whole or in part, upon the revenue,
income or profits derived from such real property;
(v) the leasing by the LLC of any real property to 919
Member LLC or 919 Third Avenue Associates, L.P. or the incurring of any
indebtedness to, or the securing by the LLC of other financing from such
parties.
Notwithstanding the foregoing, Major Decisions shall not
include any action upon which the LLC has received written advice from the
LLC's accountants or attorneys that such action will not result in the LLC
recognizing income that would be UBTI, if earned by an organization subject to
the tax under Section 511 of the Code.
(p) making any in-kind distribution;
(q) prepaying any indebtedness (including the Goldman Loan)
other than indebtedness, the incurrence of which does not constitute a Major
Decision;
(r) confessing to any judgment other than in connection with
any tax dispute with any federal, state or local taxing authority;
(s) settling any tax certiorari proceeding other than for tax
years prior to the tax year in which the date of this Agreement occurs;
(t) settling any dispute with any taxing authority concerning
the computation or allocation of any item of LLC income, gain, loss deduction
or credit for federal, state or local tax purposes, but only if and to the
extent such settlement would reasonably be expected to cause NYSTRS to
recognize more than a de minimis amount of income that would be UBTI, if
earned by an organization subject to the tax under Section 511 of the Code;
(u) hiring of any employees or entering into any collective
bargaining agreement for union labor contracts ("Union Contracts"); it being
acknowledged however that
-38-
(I) an Applicable Entity may be deemed to hire or to have hired employees or
to enter into, or have entered into, Union Contracts as a result of Managing
Agent's compliance with, or agreement to bind the Property to,
Property-Binding Arrangements now or hereafter in effect; and (II) Managing
Agent may hire employees (who will be employees of the Managing Agent) and
enter into Union Contracts.
(v) taking any of the following actions: (i) commencement by
any Applicable Entity of any case or proceeding in respect of such Applicable
Entity under any federal or state law relating to bankruptcy, insolvency,
reorganization or relief of debtors, (ii) the institution of any proceedings
by any Applicable Entity to have such Applicable Entity adjudicated as
bankrupt or insolvent, (iii) any Applicable Entity's consent to the
institution of bankruptcy or insolvency proceedings against such Applicable
Entity, (iv) the filing by any Applicable Entity of a petition, or such
Applicable Entity's consent to a petition, seeking reorganization,
arrangement, adjustment, winding up, dissolution (in connection with
bankruptcy or insolvency), composition, liquidation (in connection with
bankruptcy or insolvency) or other relief of such Applicable Entity's debts
under any federal or state law relating to bankruptcy, (v) any Applicable
Entity's seeking or consenting to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator or custodian for such Applicable Entity or for
all or substantially all of its properties, (vi) the making by any Applicable
Entity of an assignment for the benefit of such Applicable Entity's creditors
or (vii) the taking by any Applicable Entity of any action in furtherance of
any of the foregoing;
(w) amending or modifying the Ground Lease; and
(x) selecting a replacement Managing Agent in the event that
none of the Listed Agents are satisfactory to the NYSTRS Members under Section
7.04(c) below.
7.04 Goods and Services from Affiliates/Enforcement. (a)
Anything contained in this Agreement to the contrary notwithstanding, in
addition to the Management Agreement, the Managing Member may cause an
Applicable Entity to enter into agreements or other arrangements (and amend or
modify the same) for the furnishing to an Applicable Entity of goods or
services by any Affiliate of the Managing Member (including, but not limited
to, agreements or arrangements for the construction of tenant improvements and
other construction relating to the Property and telephone, internet and other
communication services) if (i) each such agreement or other arrangement shall
(x) be of a duration and contain other terms which are fair market and (y)
provide that it may be terminated without penalty upon the Affiliated Managing
Member's termination as Managing Member pursuant to the provisions of this
Agreement and (ii) the Affiliate in question shall provide services consistent
with the quality of services offered in other first-class office buildings in
Manhattan. Notwithstanding the foregoing, Managing Member shall not cause an
Applicable Entity to enter into any agreement or arrangement with an Affiliate
which provides for payment to such Affiliate of an amount greater than $50,000
per annum (to be increased by the CPI Increase) unless the Managing Member
shall furnish to the Unaffiliated Members for their reasonable approval a
summary (each, an "Affiliate Agreement Summary") of the material terms of such
agreement or arrangement. If the Unaffiliated Members shall reasonably believe
that the Affiliate agreement or arrangement described in the Affiliate
Agreement Summary violates the terms of clauses (i) or (ii) above, then
-39-
the Unaffiliated Members may object in writing to such agreement or
arrangement (such objection to state the specific basis for the same). If the
Unaffiliated Members shall fail to so object within 10 days following the
delivery of an Affiliate Agreement Summary, the agreement or arrangement in
question shall be deemed approved by the Unaffiliated Members. Any dispute
arising under this Section 7.04(a) shall be resolved by arbitration in
accordance with Article XV.
(b) Managing Member shall use commercially reasonable efforts
to enforce in all material respects the obligations of (x) Managing Agent
under the Management Agreement and (y) the other Affiliates of the Managing
Members which are parties to agreements entered into under Section 7.04(a)
above (such agreements, collectively with the Management Agreement, are the
"Affiliate Agreements"). If the Unaffiliated Member shall request in writing
to the Managing Member that the Managing Members enforce a specific obligation
under an Affiliate Agreement and the Managing Members shall not, promptly
following receipt of such request, proceed diligently to enforce such
obligation, the Unaffiliated Members' may, as their sole remedy, cause the
Applicable Entity to exercise any right or remedy available to the Applicable
Entity under the Affiliate Agreement in question. Any dispute arising under
this Section 7.04(b) shall be resolved by arbitration in accordance with
Article XV.
(c) The Members acknowledge that the Managing Agent as of the
date hereof (the "Reckson Agent") is an Affiliate of the Reckson Members. If
the Reckson Agent shall voluntarily elect to terminate the Management
Agreement pursuant to Section VII (D) of the Management Agreement, the NYSTRS
Members shall select a replacement Managing Agent from a list of three (3)
Approved Agents (the "Listed Agents") prepared by the Reckson Members. If none
of the three (3) Listed Agents are acceptable to the NYSTRS Members, the
selection of the replacement Managing Agent shall be a Major Decision.
7.05 The Business Plan. (a) For each Fiscal Year during the
Term, the Managing Member shall prepare a business plan (the "Business Plan")
for the Property to be approved by the non-Managing Member. Each Business Plan
shall be comprised of an operating budget (each, an "Operating Budget)"; a
capital improvement budget (each, a "Capital Budget"; the Operating Budget and
the Capital Budget are collectively, the "Budgets") and leasing guidelines
(the "Leasing Guidelines"). Each Operating Budget shall show, on a
month-by-month basis, in reasonable detail, each line item of anticipated
income and expense required to be made with respect to the Property during
such Fiscal Year including, without limitation, amounts required to establish,
maintain and/or increase Cash Reserves. Each Capital Budget shall show, in
reasonable detail, anticipated expenditures for Capital Improvements with
respect to the Property or any portion thereof. The Leasing Guidelines shall
specify the projected net average effective rent over the projected term of
each Lease on a space-by-space basis, taking into account base rent, the term
of the Lease, leasing commissions due to all outside leasing brokers and as
set forth in the Management Agreement (including overrides to Managing Agent),
tenant improvements, free rent and any other tenant concessions. For the sake
of clarity, the parties confirm that the Managing Member need not furnish
Leasing Guidelines for any space at the Property that is leased or is not
reasonably anticipated to become available for leasing during such Fiscal
Year.
-40-
(b) Except with respect to the 2002 Business Plan (as
hereinafter defined), not later than October 15th of each Fiscal Year during
the term of this Agreement, the Managing Member shall prepare and deliver to
the other Members a draft Business Plan. Not later than November 1 of each
Fiscal Year during the term of this Agreement, the Managing Member shall
prepare and deliver to the other Members a revised Business Plan for the
following Fiscal Year, reflecting any of Managing Member's revisions to the
draft Business Plan. Within 30 days after delivery of such revised Business
Plan, the Unaffiliated Members shall in writing, either approve the entire
revised Business Plan, in which case such revised Business Plan shall
constitute the "Business Plan", or shall disapprove, modify or otherwise
comment on specific items contained therein (collectively, the "Comments"),
which Comments shall be accompanied by a statement of the reasons therefor. If
the Unaffiliated Members shall have provided any Comments to the revised
Business Plan, the Members will discuss the same in good faith and Managing
Member shall submit, within 15 days following receipt of the Comments, the
final Business Plan which may incorporate the Comments or may not incorporate
the Comments if the Managing Member declines to do so. If the Unaffiliated
Members shall fail to submit any Comments to the revised Business Plan on or
prior to the date set forth above (or if any Comments are not incorporated by
the Managing Member into such Business Plan draft), the non-Managing Members
shall be deemed to have rejected the same (or such unincorporated Comments)
and, accordingly, the Business Plan for such Fiscal Year shall be implemented
in accordance with paragraph (e) below.
(c) The Managing Member may, from time to time and at any time,
modify the Business Plan without the Unaffiliated Members' consent to enable a
Lower Tier Entity to pay Necessary Expenses. Furthermore, the Managing Member
may at any time request the non-Managing Member's consent to modify the
Business Plan on account of unanticipated market changes, or for any other
reason, such consent not to be unreasonably withheld or delayed and shall be
deemed rejected if the non-Managing Members fail to grant or deny such consent
within 10 Business Days after receipt of the proposed modification. The
Business Plan, as modified in accordance with this subsection (c), shall be
deemed to be the "Business Plan" for all purposes herein. The Members
acknowledge and agree that the figures set forth in each Business Plan are
only estimates and not a guaranty by the Managing Member and there may be
substantial variations between the estimates set forth in a Business Plan and
actual results.
(d) The Managing Member shall use reasonable efforts to cause
the Property Owner to cause the Managing Agent to operate the Property in
conformity with the applicable Business Plan and the permitted variances
therefrom as set forth in Section 7.03(k).
(e) During any period when (i) the non-Managing Members shall
fail to approve portions of the Business Plan prior to the commencement of the
Fiscal Year to which such Business Plan relates or (ii) the Managing Member
shall decline to incorporate all of the Comments, the Property shall be
operated during such Fiscal Year (A) in accordance with such portions of such
Business Plan as to which agreement has been reached, (B) at rates or levels
of expenditures as are actually charged or incurred with respect to Necessary
Expenses and (C) with respect to those portions of such Business Plan which
are discretionary, increased by the CPI Increase (computed for this purpose
from the January 1st of the last Fiscal Year for which a Business Plan was
approved to December 31st of the Fiscal Year immediately preceding the Fiscal
Year to which the Business Plan in dispute relates).
-41-
(f) On the date hereof the Members have adopted the Business
Plan for Fiscal Year 2002 (the "2002 Business Plan"). The Managing Member
shall be entitled to cause the LLC and the Lower Tier Entities to pay all LLC
Charges and the "LLC Charges" of the Lower Tier Entities, as applicable, as
and when due to the extent such LLC Charges are either consistent with the
Business Plan or are a permitted variance therefrom as set forth in Section
7.03(k) or are Necessary Expenses. From the date hereof through and including
January 1, 2002, Managing Member shall operate the LLC in the ordinary course
of business.
7.06 Other Activities of Members. A Member (or any Affiliate
thereof) may own, purchase, sell, or otherwise deal in any manner with any
property other than the Property without notice to any Unaffiliated Member,
without participation of any Unaffiliated Member, and without liability to the
LLC, the Lower Tier Entities or any Unaffiliated Member, and a Member may,
without notice to any Unaffiliated Member and without obligation to present to
the LLC or to a Lower Tier Entity or any Unaffiliated Member an opportunity of
any kind whatsoever, acquire, sell, finance, lease, operate, manage, develop
or syndicate any real property not owned by the Property Owner, free of any
claim whatsoever of any Unaffiliated Member, the Lower Tier Entities or the
LLC. No Member shall incur any liability to the LLC or to a Lower Tier Entity
or any Unaffiliated Member as a result of such Member's interest in such other
property or pursuit of such other business interests, and neither the LLC nor
any Member or any Lower Tier Entity shall have any right to participate in
such other property or business or to receive or share in any income or
profits derived therefrom.
7.07 Property Management. Subject to the terms and provisions
of this Agreement (including Section 7.04(b)) and the Management Agreement,
the Managing Member shall cause the Property Owner to engage the Managing
Agent to manage the Property and act as its exclusive leasing agent in
accordance with the Management Agreement.
7.08 Group Members. If there is more than one Reckson Member or
more than one NYSTRS Member the following shall apply to the group of Members
("Group Members") constituting the Reckson Members or the NYSTRS Members, as
the case may be:
(i) all Group Members shall be obligated to approve,
consent or otherwise take any other action permitted to be taken by the Group
Members under this Agreement as one Member constituting the aggregate Interest
and Percentage Interest of all Group Members with respect to all matters under
this Agreement and the Group Members shall be jointly and severally liable for
the actions of the other Group Members under this Agreement;
(ii) the Group Members shall designate one Group Member
(the "Group Agent") to act as agent for the Group Members as the primary Group
Member to give or receive Notices hereunder. As of the date hereof, the
Reckson Members appoint Metro919 as the Reckson Members' Group Agent for all
applicable purposes under this Agreement and the NYSTRS Members appoint NYSTRS
as the NYSTRS Group Agent for all applicable purposes under this Agreement.
The Group Members may replace their Group Agent from time to time upon written
notice to all Unaffiliated Members. Notices given or received by the Group
Agent shall be deemed given or received by all Group Members and shall be
binding on all Group Members as if given or received by each of them; and
-42-
(iii) without limiting the generality of the foregoing, if
a Group Member is a Non-Contributing Member under Section 5.02(b)(ii), all
Group Members shall deemed to be Non-Contributing Members.
ARTICLE VIII
BANK ACCOUNTS; BOOKS AND RECORDS;
STATEMENTS; TAXES; FISCAL YEAR
8.01 Books of Account. At all times during the existence of the
LLC, the books of account of the LLC shall be prepared and kept by the
Managing Member, at the expense of the LLC, in accordance with GAAP, which
shall reflect all of the transactions relating to the Applicable Entities and
the Property and shall be appropriate and adequate for the business of the
Applicable Entities and the Property, and which books of account shall be
maintained at the principal place of business of the respective Applicable
Entity. Any Member or its duly authorized representatives shall have the right
at any time to inspect and copy such books of account during normal business
hours upon reasonable notice. Any Member and its duly authorized
representatives shall have the right to examine (and copy) or conduct an audit
of the LLC's books and records at any time during normal business hours and
upon reasonable notice at the LLC's principal place of business. Any such
examination or special audit (i.e., audits other than the annual audits for
the LLC which shall be conducted as of December 31 at the LLC's sole cost and
expense) shall be performed at such Member's sole cost and expense.
8.02 Fiscal Year. Unless the Members shall agree otherwise, the
fiscal year of the LLC for financial, accounting, federal, state and local
income tax purposes (the "Fiscal Year") shall be the calendar year (except
that the first Fiscal Year of the LLC (for financial and accounting purposes)
shall begin on the date hereof and the last Fiscal Year of the LLC shall end
on the last day of the term of this Agreement).
8.03 Bank Accounts. All funds of the LLC shall be deposited in
the LLC's name in one or more separate bank accounts (each, a "Bank Account")
at a United States based bank selected by the Managing Member. Each Bank
Account shall provide for a "sweep" feature, automatically transferring excess
funds to an interest bearing account investing in securities such as
commercial paper. Each such Bank Account shall be used exclusively for the
LLC's funds and no other funds shall be commingled therein. Withdrawals may be
made from such Bank Account only by the Managing Member and only for purposes
authorized under this Agreement and which are permitted under any Applicable
Loan. The LLC may, at the Managing Member's option, establish one or more bank
accounts in the name of a Lower Tier Entity to hold the funds of such Lower
Tier Entity.
8.04 Financial Statements. (a) Within 90 days after the end of
each Fiscal Year, the Managing Member shall prepare and deliver to the
Members, at the expense of the LLC, audited financial statements of each
Applicable Entity for the preceding Fiscal Year (the "Annual Report"). The
Annual Report for each Applicable Entity shall include a balance sheet, an
income statement or a statement of operations, statements of the Members'
Capital Accounts, Capital Contributions, Percentage Interests, Statement of
Cash Flows and, for the Property
-43-
Owner, a Statement of Net Ordinary Cash Flow and, if applicable, a Statement
of Net Extraordinary Cash Flow, all of which shall be prepared in accordance
with GAAP (except for the reports of Net Ordinary Cash Flow and Net
Extraordinary Cash Flow and other reports prepared on a cash basis) and shall
be audited by the LLC Accountants and (except with respect to the Statements
of Net Ordinary Cash Flow and Net Extraordinary Cash Flow) present fairly the
financial position and operating results of each Applicable Entity.
(b) Within 15 days after the end of each month, the Managing
Member shall prepare and deliver to the Members an unaudited financial report
for the Property Owner for the preceding month (the "Monthly Report"). The
Monthly Report shall include (I) an income statement or a statement of
operations, (II) a Statement of Net Ordinary Cash Flow, (III) if applicable, a
Statement of Net Extraordinary Cash Flow, (IV) a summary of capital
expenditures for the Property (items I through IV may be provided by
delivering the Monthly Report prepared by Managing Agent to the extent the
Monthly Report states such information) and (V) if not delivered directly to
all Members, a copy of the "Monthly Report" prepared by Managing Agent
pursuant to the Management Agreement.
(c) The Members acknowledge that any financial projections that
have been or are hereafter delivered to the Members or the Management
Committee (the "Projections") (a) reflect a number of estimates, assumptions
and judgments concerning anticipated results of the Property, (b) were not
prepared with a view to disclosure or compliance with published guidelines of
the Securities and Exchange Commission or the guidelines established by the
American Institute of Certified Public Accountants regarding projections or
forecasts and (c) do not purport to present operations at the Property in
accordance with GAAP. The Projections are and will be subject to certain risks
and uncertainties that could cause actual results to differ substantially from
the Projections. Neither Reckson Member nor any of their Affiliates or
representatives have made or is making any representation to the Members or
the Management Committee or any other person regarding the actual performance
of the Property compared to the information contained in the Projections and
each of them expressly disclaims any representation or warranty, express or
implied, as to the accuracy or completeness of the Projections.
8.05 Tax Returns; Tax Matters Partner. (a) As soon as
practicable after the end of each Fiscal Year, but in no event later than the
120th day following the end of each Fiscal Year, the Managing Member shall
furnish each Member, at the expense of the LLC, with an estimated statement of
the Member's distributive share of income, gains, losses, deductions and
credits for such Fiscal Year. As soon as practicable after the end of each
Fiscal Year but in no event later than 150 days following the end of each
Fiscal Year, the Managing Member shall furnish each Member, at the expense of
the LLC, with a final statement of the Member's distributive share of income,
gains, losses, deductions and credits for such Fiscal Year on a Form K-1 and
such other information (including copies of any tax returns that have been
filed by the LLC) as is reasonably necessary for the Member to complete such
Member's applicable U.S. federal, state, local and foreign income tax returns.
(b) The Managing Member shall cause all LLC tax returns to be
timely prepared, at the expense of the LLC, so that they may be filed with the
applicable government
-44-
authorities within allowable time periods, including extensions, and so that
the LLC can provide the Members with the tax returns and information.
(c) Metro919 shall be the tax matters partner (as described in
Section 6231(a)(7) of the Code) of the LLC. The tax matters partner may extend
the statute of limitations on behalf of the LLC, select the LLC's choice of
litigation forum in any tax action, or take any other action in its capacity
as the tax matters partner without the consent of the Management Committee.
The tax matters partner shall keep the Management Committee fully advised of
the progress of any audit or other tax proceeding and shall, promptly upon
receipt, supply the Members Management Committee with copies of any written
communications received from the Internal Revenue Service, or other taxing
authority, and shall, to the extent practicable, at least five business days
prior to submitting any materials to the Internal Revenue Service, or other
taxing authority, provide such materials to the Members Management Committee.
Any direct or indirect costs and expenses incurred by the tax matters partner,
acting in its capacity as such, shall be deemed to be LLC Charges and the LLC
shall reimburse the tax matters partner for such amounts.
8.06 Communications. Managing Member shall keep the Members
informed as to all matters of material concern to the LLC and shall deliver to
the Members promptly upon the receipt or sending thereof copies of all
notices, reports and communications (A) between an Applicable Entity and any
holder of a Mortgage Loan which relate to any existing or pending default
thereunder or to any material financial or operational information required by
such holder and (B) regarding material violations or lawsuits affecting the
Property.
8.07 Partnership. The LLC shall be treated as a partnership for
federal income tax purposes and no Member shall make any election (for tax
purposes or otherwise) inconsistent with such treatment.
ARTICLE IX
TRANSFERS OF INTERESTS; RIGHT OF FIRST REFUSAL; PLEDGES
9.01 Restrictions on Transfers of LLC Interests. (a) Except as
specifically permitted under this Article IX, no Member shall, directly or
indirectly, sell, assign, transfer or otherwise dispose of (such transactions
being herein collectively called "Transfers"), all or any part of such
Member's Interest without the prior written consent of all Unaffiliated
Members, and any such Transfer made in violation of the foregoing shall be
void ab initio. Any of the following (each, an "Upper Tier Transfer"), whether
accomplished directly or indirectly, by contract, operation of law,
voluntarily or involuntarily, shall be deemed a Transfer for purposes hereof:
(i) any Transfer of (x) any partnership interest in any
Member that is a partnership, (y) any stock in any Member that is a
corporation or (z) any membership, legal or beneficial interest in any Member
that is a limited liability company, trust or other entity;
(ii) (x) the admission of any additional partner to any
Member that is a partnership, (y) the issuance of additional stock in any
Member that is a corporation or (z) the
-45-
issuance of any additional membership, legal or beneficial interest in any
Member that is a limited liability company, trust or other entity; and
(iii) the occurrence of any of the transactions described
in Section 9.01(a)(i) or Section 9.01(a)(ii) with respect to any partnership,
corporation, limited liability company, trust or other entity that is itself
an owner of any direct of indirect interest in a Member, or any other
transaction, howsoever effected, which changes the beneficial ownership of a
Member from that existing on the date hereof.
(b) Notwithstanding the provisions of (a) above, the Reckson
Members, on the one hand, and the NYSTRS Members, on the other hand, may
Transfer all or a portion, of their Interests to an Affiliate without the
other's consent, provided that such Transfer does not cause a termination of
the LLC under Section 708 of the Code.
9.02 Right of First Offer. (a) From and after the first
anniversary of the date of this Agreement, (i) if (x) the Reckson Members or
(y) the NYSTRS Members (as applicable, the "Transferring Member") desires to
Transfer its Interest in the LLC other than in accordance with Section 9.01(b)
, then the following provisions shall apply:
(A) the Group Agent of the Transferring Member shall
give to the Group Agent of the Unaffiliated Members (such Unaffiliated Members
are for purposes of this Section 9.02, collectively the "Non-Transferring
Member") a written notice (the "First Offer Notice") setting forth (x) the
material business terms of the proposed Transfer including the price (the
"Offering Price") at which the Transferring Member proposes to Transfer its
Interest (the Interest being transferred is the "Applicable Interest") (it
being acknowledged that if the Reckson Members are transferring their
"Applicable Interest", the Reckson Members and their Affiliates shall
transfer, and the acquiring party shall acquire, the Total Reckson Interest;
and (y) the name and address of the Escrow Agent (as defined below) but need
not identify or specify a proposed transferee. The material business terms
shall in all events provide that (i) the Applicable Interest constitutes the
entire Interest of the Transferring Member and any outstanding Default Loans
held by the Transferring Member (but no other assets), and (ii) the Offering
Price will be payable entirely in cash, in immediately available funds;
(B) within 60 days following the delivery of the
First Offer Notice (the "Binding Commitment Period"), the Non-Transferring
Member may, by notice (the "Binding Commitment Notice") in writing to the
Transferring Member elect to make a binding commitment to purchase the
Applicable Interest at the Offering Price specified in the First Offer Notice;
and
(C) simultaneously with the delivery of the Binding
Commitment Notice on or before the end of the Binding Commitment Period, the
Non-Transferring Member shall deliver to the New York office of one of the
five largest national title insurance companies in the United States which
shall be designated by the Transferring Member in the First Offer Notice (the
"Escrow Agent") a deposit (the "Deposit") equal to 5% of the Offering Price
which shall be (x) non-refundable (except if the Transferring Member shall
wrongfully fail to close the sale of the Applicable Interest under paragraph
(e) below) and (y) held
-46-
in escrow pursuant to an escrow agreement in a form reasonably agreeable to
the parties and the Non-Transferring Member shall be obligated to purchase the
Applicable Interest on a date not more than 120 days following the end of the
Binding Commitment Period (such date to be determined by the Non-Transferring
Member on not less than 15 days prior notice to the Transferring Member, or if
no such notice is sent, then on the 105th day following the end of the Binding
Commitment Period). The Binding Commitment Notice shall be void ab initio if
the Non-Transferring Member fails to deliver the Deposit simultaneously with
the delivery of the Binding Commitment Notice. The date upon which the closing
of the purchase of the Applicable Interest shall occur shall be called the
"ROFO Closing Date".
(b) On the ROFO Closing Date:
(i) the Transferring Member shall deliver to the
Non-Transferring Member a duly executed and acknowledged instrument of
assignment conveying the Applicable Interest to the Non-Transferring Member or
its designee(s) free and clear of all liens and encumbrances (other than any
lien or encumbrance secured by the Property (the "Secured Liabilities"));
(ii) the Transferring Member shall pay all transfer, stamp
or similar taxes, if any, due in connection with the conveyance of the
Applicable Interest;
(iii) the Non-Transferring Member shall pay the Offering
Price (as adjusted by the credits and apportionments herein set forth) by wire
transfer in immediately available funds;
(iv) the LLC shall close its books as of the ROFO Closing
Date;
(v) Net Ordinary Cash Flow and Net Extraordinary Cash Flow
hereunder (provided, if the Total Reckson Interest is being transferred, "Net
Ordinary Cash Flow" and "Net Extraordinary Cash Flow" shall be as defined in
each Reckson Entity Agreement) to the ROFO Closing Date shall be distributed
in accordance with the provisions of Section 6.05;
(vi) the Offering Price shall (A) be increased by the
aggregate amount of all additional Capital Contributions made by the
Transferring Member on account of the Applicable Interest in the period
between the date of the First Offer Notice and the ROFO Closing Date and (B)
be decreased by any Net Extraordinary Cash Flow distributed to the
Transferring Member on account of the Applicable Interest during such period;
provided that if the Total Reckson Interest is being transferred, the phrases
"Capital Contributions" and "Net Extraordinary Cash Flow" set forth above
shall have the meanings set forth in each Reckson Entity Agreement;
(vii) the Members shall execute all amendments to
fictitious name, membership or similar certificates necessary to reflect the
withdrawal of the Transferring Member from the LLC (if applicable), the
admission of any new Member to the LLC (if applicable), the termination of the
LLC, or as may otherwise be required by the LLC Act or as contemplated by
Section 2.01; provided, if the Transferring Member is the Reckson Members the
requirements set forth in this clause (vii) shall apply with respect to all
Reckson Entity Agreements;
-47-
(viii) the Non-Transferring Member shall provide the
Transferring Member's Recourse Parties with Releases or a Release Indemnity in
accordance with Section 12.03; and
(ix) each Member shall be reasonable and shall cooperate
with the other Members and the transferee in consummating the transaction
contemplated by this Section 9.02, including, without limitation, by executing
such documents as may reasonably be required in connection therewith.
(c) (i) If the Non-Transferring Member fails timely to deliver
a Binding Commitment Notice to the Transferring Member, the Transferring
Member shall have the right, subject to this Section 9.02(c), to sell the
Applicable Interest, provided that (1) the gross purchase price (without
deduction for any brokerage or similar fees payable in connection with such
sale) is at a price greater than 95% of the Offering Price, (2) the other
terms and conditions of the sale, when taken as a whole, are not (taken as a
whole) materially less favorable to the Transferring Member than the terms and
conditions set forth in the First Offer Notice, (3) the transferee shall
deliver to all Recourse Parties "Releases", or if not obtainable, "Release
Indemnities" (as such terms are defined in Section 10.01(a)), (4) the
Non-Transferring Member has been given an Identity Notice under clause (ii)
below and has failed to give a proper and timely Dispute Notice with respect
to the proposed transferee identified therein and (5) the closing of such sale
shall occur not later than 12 months following the expiration of the Binding
Commitment Period, and upon such closing the proposed transferee shall succeed
to all the rights, obligations and responsibilities of the Transferring
Member.
(ii) At any point prior to the close of the 12-month
period set forth above, the Transferring Member shall provide a written notice
(the "Identity Notice") to the Non-Transferring Member identifying the
proposed transferee and if, within 7 Business Days following delivery of the
Identity Notice, the Non-Transferring Member shall deliver a written notice
(the "Dispute Notice") to the Transferring Member stating that (x) the
Non-Transferring Member and the proposed transferee are currently engaged in a
material litigation (and the Dispute Notice shall provide written evidence of
such material litigation) or (y) if the Non-Transferring Member is the Reckson
Members, the proposed transferee or any of its Affiliates is a Competitor (as
defined below) of the Reckson Members or their Affiliates, then, in the case
of (x) or (y), the Transferring Member shall not be permitted to transfer its
Interest to such proposed transferee. "Competitor" shall mean any Person that
either on its own, or together with its Affiliate, (i) owns (other than
principally for its own use) either directly, or indirectly through Affiliates
of such Person, greater than a 7.5% interest in at least 2.5 million square
feet of office space in New York, New Jersey or Connecticut or (ii) is
currently developing, or has developed in the immediately preceding 3-year
period, at least two million square feet of office space in New York, New
Jersey or Connecticut, or any Person which is controlled by a Competitor;
provided, however, a Competitor shall not include insurance companies,
commercial banks or investment banks acting for their own account, religious,
educational or eleemosynary institutions, federal, state, municipal or other
governmental or secular employee's welfare, benefit, pension or retirement
funds, or other similar passive real estate investors. The Non-Transferring
Member's failure to furnish the Dispute Notice on or prior to the close of the
7 Business-Day period described above shall constitute a waiver of the right
to dispute such transferee. The Non-
-48-
Transferring Member shall within 10 Business Days after request therefor from
the Transferring Member, execute and deliver such documentation as the
Transferring Member shall reasonably request evidencing the Non-Transferring
Member's waiver of the right to purchase the Applicable Interest, and
confirming that there are no outstanding Dispute Notices with respect to a
proposed transferee but the failure to do so shall in no way affect the
Transferring Member's right to sell the Applicable Interest as described
herein.
(d) If the Transferring Member does not close a sale of the
Applicable Interest which satisfies the requirements of Section 9.02(c) above
within the 12-month period described in Section 9.02(c), then the Transferring
Member may not sell the Applicable Interest without once again giving notice
to the Non-Transferring Member pursuant to Section 9.02(a) above.
(e) If the Transferring Member or the Non-Transferring Member
shall fail to close the sale of an Applicable Interest contemplated by this
Section 9.02 after the Binding Commitment Notice has been given, then the
non-failing Member may, as its sole remedies (i) seek specific performance of
the failing Member's obligations, (ii) if the failing Member shall be (x) the
Non-Transferring Member, the Transferring Member may retain the Deposit as
liquidated damages or (y) the Transferring Member, the Escrow Agent shall
immediately return the Deposit to the Non-Transferring Member; (iii) sell its
Interest during the 12 month period immediately succeeding the scheduled ROFO
Closing Date without complying with the right of first offer described in this
Section 9.02 and such buyer shall succeed to all of the rights, obligations
and responsibilities of the Transferring Member under this Agreement or (iv)
have the unilateral right (the "Unilateral Sale Right") to cause the LLC to
cause the Property Owner to sell the Property to an independent third party,
without complying with the procedures set forth in Section 10.01 but only if
such sale shall close not later than 12 months following the scheduled ROFO
Closing Date and not before April 1, 2005. During such 12-month period
following the scheduled ROFO Closing Date the failing Member shall not be
permitted to invoke any of the procedures set forth in this Section 9.02 or in
Sections 10.01 or 10.02. The non-failing member may exercise any one or more
of the foregoing remedies, but such remedies shall collectively be the sole
remedies of the non-failing Member.
9.03 Conditions Applicable to All Transfers. (a)
Notwithstanding anything to the contrary contained in this Agreement, any
Transfer of any Interest by a Member shall be made in full compliance with all
Legal Requirements. In the event that any filing, application, approval or
consent is required in connection with any such Transfer, the transferring
Member shall promptly make such filing or application or obtain such approval
or consent, at its sole expense, and shall reimburse the Unaffiliated Members
for any costs or expenses (including attorneys' fees) incurred by such Member
in connection with any filing, application, approval or consent.
(b) Notwithstanding anything to the contrary contained in this
Agreement, no Transfer of the Interest of a Member shall be binding upon the
Unaffiliated Members unless (i) such Transfer will not be subject to, or such
Transfer, when aggregated with prior Transfers in accordance with Legal
Requirements, will not result in the imposition of any state, city or local
transfer taxes to the LLC or the non-transferring Member (except to the extent
it is specifically provided herein that the non-transferring Member is
obligated to pay all or a portion of such
-49-
taxes), unless the transferring Member agrees to pay such transfer tax and to
indemnify the non-transferring Member therefrom, (ii) in the case of a
Transfer of a direct Interest the transferee shall have delivered to such
Unaffiliated Member an executed and acknowledged assumption agreement pursuant
to which the transferee assumes all the obligations of the transferor accruing
from and after the date of such Transfer under, and agrees to be bound by all
the provisions of, this Agreement (or, in the case where the transferee is an
Affiliate of the transferor, from and after the date of this Agreement),
subject to the limitations of liabilities set forth herein, and (iii) in the
case of the Transfer of a direct Interest, the transferee shall have executed,
acknowledged and delivered any instruments required under the LLC Act to
effect such Transfer and its admission to the LLC. Notwithstanding anything in
this Agreement to the contrary, in no event shall an Interest be transferred
to a Person who is the subject of any pending bankruptcy proceedings, or to a
Person who is a minor or who otherwise lacks legal capacity, and any attempt
to effect a Transfer to such a Person shall be void and of no effect and shall
not bind the LLC.
(c) Notwithstanding any Transfer made pursuant to this Article
IX but subject to the limitations expressly stated in this Agreement,
including Article XII, the Transferring Member shall remain liable for all of
the obligations and liabilities of the Transferring Member under this
Agreement, whether accruing prior to, on or from and after the date of such
Transfer; provided, that the Transferring Member shall be relieved of any such
obligations and liabilities accruing from and after the date of such Transfer
if the transferee shall have delivered to the Unaffiliated Member an executed
and acknowledged assumption agreement pursuant to which the transferee assumes
all the obligations of the Transferring Member accruing from and after the
date of such Transfer under, and agrees to be bound by all the provisions of,
this Agreement (or, in the case where the transferee is an Affiliate of the
Transferring Member, from and after the date of this Agreement). In connection
with any Transfer permitted under this Article IX, each Member hereby consents
to the withdrawal of the Transferring Member as a Member and the admission of
the transferee as a Member with the rights of the Transferring Member
hereunder.
(d) The LLC, each Member and any other Person or Persons having
business with the LLC, need deal only with Members who are admitted as Members
or as substituted Members of the LLC, and they shall not be required to deal
with any other Person by reason of Transfer by a Member or by reason of the
death of a Member, except as otherwise provided in this Agreement. In the
absence of the substitution (as provided herein) of a Member for a
transferring or a deceased Member, any payment to a Member or to a Member's
executors or administrators shall acquit the LLC and the Members of all
liability to any other Persons who may be interested in such payment by reason
of an assignment by, or the death of, such Member.
9.04 Admission of Transferee. Any Person who becomes a Member,
accepts, ratifies and agrees to be bound by all actions duly taken pursuant to
the terms and provisions of this Agreement by the LLC prior to the date of its
membership in the LLC and, without limiting the generality of the foregoing,
specifically ratifies and approves all agreements and other instruments as may
have been properly executed and delivered on behalf of the LLC in accordance
with this Agreement prior to said date and which are in force and effect on
said date. Unless and until a transferee is admitted as a substituted Member,
the transferee shall be entitled only to allocations and distributions with
respect to such Interest in accordance with this Agreement, and shall have no
right to any information or accounting of the affairs of the LLC,
-50-
shall not be entitled to inspect the books or records of the LLC, and shall
not have no right to exercise any of the powers, rights, and privileges of a
Member hereunder.
9.05 Pledge of Interest. (a) No Member may, or permit its
Affiliates to, pledge, collaterally assign (including any assignment of income
or profits) or otherwise hypothecate or create or permit to exist a lien
against (collectively "Pledge") any direct or indirect interest in the LLC
except (I) in accordance with the provisions of this Section 9.05 and (II) if
such Pledge is a Permitted Pledge. A Pledged Interest may subsequently be
transferred by foreclosure, assignment in lieu thereof or other enforcement of
such Pledge; provided and upon the condition that (i) the Person (the
"Purchaser") who purchases or otherwise acquires the pledged Interest does so
subject to all of the terms and conditions of this Agreement as it may have
been modified or amended, (ii) the Purchaser, for its acquisition of a Pledged
Interest to be effective, shall comply with the provisions of Sections 9.03
and 9.04 and (iii) in the case of the Reckson Members' Interest being
foreclosed upon or otherwise transferred in enforcement (or in lieu of
enforcement) of such Pledge, if the Purchaser (A) is a commercial bank acting
in its lending capacity or (B) is not an Approved Entity (as defined in
Section 9.06), then simultaneously with such foreclosure or such other
transfer to the Purchaser, a NYSTRS Member shall immediately become the
Managing Member and the NYSTRS Group Agent shall notify the Purchaser of such
New Managing Member and the Lockout Period (as such term is defined in Section
10.02) shall be deemed to have expired and either party may immediately tender
a Buy/Sell Offer Notice pursuant to Section 10.02(a) and proceed with a
Buy/Sell Transaction in accordance with Section 10.02. The Members hereby
consent to any foreclosure or other transfer of a Pledge permitted under this
Article IX, or an assignment in lieu thereof, or other such enforcement of
such Pledge, the withdrawal of a Member Debtor if its entire Interest was so
transferred, and the admission of the Purchaser as a substitute Member, as the
case may be, with all of the rights of the Member Debtor hereunder including,
without limitation, its rights with respect to management and distributions.
No such Pledge, foreclosure or other enforcement shall require the Pledgee or
its Affiliate to assume the obligations of a Member Debtor hereunder unless
and until such Pledgee or its Affiliate acquires the pledged Interest of such
Member Debtor.
(b) If the pledgee (the "Pledgee") of a Permitted Pledge shall
have given the Unaffiliated Members a written notice specifying such Pledgee's
name and address, then, whenever the Unaffiliated Members shall thereafter
give a notice to such Member Debtor under this Agreement, the Unaffiliated
Members shall also give such Pledgee at such address a copy of each notice
given by the Unaffiliated Members to the Member Debtor in the same manner and
at the same time as any such notice is given to the Member Debtor. No such
notice by an Unaffiliated Member shall be deemed to have been given to the
Member Debtor unless and until a copy thereof shall have been so given to the
Pledgee. All Unaffiliated Members will accept performance by any Pledgee of
any covenant or obligation on the Member Debtor's part to be performed
hereunder, with the same force and effect as though performed by the Member
Debtor and the Pledgee shall be entitled to an additional 30 days to cure the
applicable default of the Member Debtor hereunder. No Unaffiliated Member
shall terminate, or modify in any material respect, this Agreement without the
prior written consent of each Pledgee, except to the extent (if any) expressly
required hereunder. All Unaffiliated Members shall consent to the execution by
the LLC of such instruments as are reasonably required by a Pledgee in order
to ensure the perfection of its security interest in the Member Debtor's
Interest.
-51-
(c) A Pledge (and any transfer by foreclosure sale or otherwise
in enforcement or settlement of such a Pledge) effected under this Section
9.05 shall not be considered a "Transfer" under this Agreement and shall not
be subject to the restrictions regarding Transfers set forth herein (including
without limitation, the provisions of Section 9.02).
9.06 Special Transfer Provisions Applicable to Reckson. For
purposes of this Section 9.06 the following definitions shall have the
following meanings:
Reckson Change in Control: shall be deemed to have occurred if
after a Potential Change in Control Transaction Non-Reckson Directors
constitute a majority of the board of directors or equivalent governing body
of the Surviving Entity at the first time Non-Reckson Directors constitute a
majority, but only if they become a majority within one year of the
consummation of the Potential Change in Control Transaction.
Reckson Directors: individuals who immediately prior to a
Potential Change in Control Transaction constituted the board of directors or
equivalent governing body of Reckson Associates (together with any other
individuals whose designation or election or whose nomination for election by
shareholders was approved by a vote of a majority of directors (or equivalent
governing members) of Reckson Associates prior to such Potential Change in
Control Transaction); provided that, in connection with a Potential Change in
Control Transaction, Non-Reckson Directors with respect to such Potential
Change in Control Transaction shall not be deemed Reckson Directors.
Non-Reckson Directors: individuals that are not Reckson
Directors who become directors of the Surviving Entity in a Potential Change
in Control Transaction, pursuant to an agreement, arrangement or understanding
entered into in connection with such Potential Change in Control Transaction,
within one year of the consummation of such Potential Change in Control
Transaction, whether or not such agreement, arrangement or understanding
involved a shareholder vote to cause such individuals who are not Reckson
Directors to become directors.
Potential Change in Control Transaction: either
(i) the closing of a transaction or series of related
transactions in which any Person or group (as such term is used
in Sections 13(d) and 14(d)(2) of the Exchange Act, the
"Acquiring Person"), other than Reckson Permitted Holders,
becomes the beneficial owner, directly or indirectly, of more
than 25% of the Voting Stock (as hereinafter defined) of a
Reckson Party; provided that once such Person or group has
become an Acquiring Person any change in such Acquiring
Person's beneficial ownership of Voting Stock of a Reckson
Party is not another Potential Change in Control Transaction,
or
(ii) the consummation of a merger, consolidation or
amalgamation (each, a "Transaction") in which Reckson
Associates is a constituent corporation and immediately after
the consummation thereof, Persons who beneficially owned Voting
Stock of Reckson Associates immediately prior to such
consummation ("Existing Reckson Holders") beneficially own less
than 75% of the Voting
-52-
Stock of the Surviving Entity. For purposes of the foregoing
calculation solely, all shares of Voting Stock of the Surviving
Entity beneficially owned by an Existing Reckson Holder, which
is beneficially owned by such Person by virtue of and is
attributable to any interest held by such Person in any other
entity or property which is a constituent party to such
Transaction that is not an affiliate of Reckson Associates,
shall not be deemed to be Voting Stock of such Existing Reckson
Holder. The terms "beneficial owner," "beneficial ownership,"
"beneficially own" and "beneficially owned" are used in this
Agreement as such terms are used in Rule 13d-3 and 13d-5 under
the Exchange Act.).
Surviving Entity: with respect to a Transaction, (i) Reckson
Associates, if Reckson Associates is the surviving Person of such Transaction
and if Reckson Associates (as surviving Person of the Transaction) is not the
subsidiary of another Person, (ii) if Reckson Associates is not the surviving
Person of such Transaction, and the surviving Person of such Transaction is
not a subsidiary of another Person, then such surviving Person, or (iii) if
Reckson Associates becomes a subsidiary of another Person as a result of such
Transaction, the Ultimate Parent of Reckson Associates.
Reckson Associates: Reckson Associates Realty Corp. or, subject
to the provisions of Section 9.06(a)(ii), any successor thereto by merger or
acquisition of all or substantially all of its assets, reorganization or
otherwise.
Reckson OP: Reckson Operating Partnership, L.P., a Delaware
limited partnership or, subject to the provisions of Section 9.06(a)(ii), any
successor thereto by merger or acquisition of all or substantially all of its
assets, reorganization or otherwise.
Reckson Party: Reckson Associates; provided that in the event
Reckson Associates ceases to be the sole general partner of Reckson OP,
"Reckson Party" shall be deemed to mean both Reckson Associates and Reckson
OP.
Reckson Permitted Holders: means (a) Senior Management of
Reckson Associates, (b) the spouses, issue, parents and first cousins of
Senior Management of Reckson Associates and the first cousins of the spouses,
issue and parents of the Rechlers (as hereinafter defined), (c) trusts for the
benefit of the Persons described in clause (a) and (b) of this definition, (d)
entities controlling or controlled by foregoing Persons and (e) in the event
of the death of any such individual Person, heirs or testamentary legatees of
such Person. For purposes of this definition "Voting Stock" means equity
interests in a corporation or other Person with voting power under ordinary
circumstances entitling the holders thereof to elect the Board of Directors or
other governing body of such corporation or Person.
Senior Management of Reckson Associates: Means individuals who
as of the date of this Agreement or hereafter hold a position of executive
vice president, managing director or higher at Reckson Associates; provided,
however, an individual shall not be deemed to be a member of Senior Management
of Reckson Associates if he first acquired such a position after the
occurrence of a Non-Approved Entity Change in Control (as hereinafter
defined). As of the date hereof the following individuals hold the position of
executive vice president, managing director
-53-
or higher at Reckson Associates: Donald Rechler, Scott Rechler, Roger Rechler,
Mitchell Rechler, Gregg Rechler and Todd Rechler (collectively, the
"Rechlers"), Michael Maturo, Jason Barnett, Philip M. Waterman III, FD Rich
III and Salvatore CampoFranco.
Ultimate Parent: In the case of any specified Person, any other
Person of which such specified Person is a subsidiary and that is not itself a
subsidiary of any other Person.
(a) Change in Control of Reckson Associates. The following
shall apply with respect to a Reckson Change in Control which is consummated
(or expected to be consummated) prior to the expiration of the lockout periods
set forth in Section 10.02:
(i) Approved Entity/Actively Managed Entity Transfer. If,
after giving effect to a Reckson Change in Control, a Reckson Party is an
Approved Entity, then such Reckson Change in Control may be consummated
without any rights on the part of the NYSTRS Members under this Section 9.06.
An "Approved Entity" is each entity listed on Schedule 2A
attached hereto (the "Approved Entity List"), any successor to such entity by
merger or acquisition of all or substantially all of its assets,
reorganization or otherwise, and any Affiliate of the foregoing:
(ii) Non-Approved Entity change in Control.
(A) With respect to a possible Reckson Change in Control
(a "Proposed Non-Approved Entity Change in Control") which, after giving
effect to such Change in Control, would result in a Reckson Party being other
than an Approved Entity (such Reckson Party, a "Non-Approved Entity") and such
Reckson Change in Control is not an Involuntary Change In Control (as defined
below), the Reckson Group Agent may, at its election, notify the NYSTRS Group
Agent of the proposed Reckson Change in Control (the "Change in Control
Notice"). Within 45 days following the delivery of the Change in Control
Notice the NYSTRS Group Agent shall deliver a Buy/Sell Offer Notice (as
defined in Section 10.02 (notwithstanding any lockout period set forth in the
first sentence of Section 10.02(a) (the "Lockout Period")) and the parties
shall proceed with the Buy/Sell Transaction in accordance with the terms set
forth in Section 10.02; provided that, notwithstanding anything to the
contrary set forth in Section 10.02(b), the closing of a Buy/Sell Transaction
triggered under this Section 9.06 shall occur on a date selected by the
Purchasing Buy/Sell Member (as defined in Section 10.02) during the period
commencing on the 30th day and ending on the 90th day following the date (the
"Consummation Date") that the Proposed Non-Approved Entity Change in Control
shall have been consummated (such closing date to be extended by any
adjournment required under Section 10.02(b)(vii)). If the Reckson Group Agent
shall fail to deliver the Change in Control Notice, the NYSTRS Group Agent
shall have the right to deliver a Buy/Sell Offer Notice at any point during
the period commencing on the Consummation Date and ending on the date that is
60 days following the Consummation Date. If the NYSTRS Group Agent shall fail
to timely deliver a Buy/Sell Offer Notice, then the NYSTRS Members shall not
be entitled to deliver a Buy/Sell Offer Notice in respect of such Proposed
Non-Approved Entity Change in Control until the date that is the earlier of
(I) the close of the Lockout Period and (y) the date that is 180 days
following the Consummation Date. If a Proposed Non-Approved Entity Change in
Control
-54-
is abandoned or terminated for any reason, such Buy/Sell Transaction commenced
under this Section 9.06 shall be terminated without liability to either party
and any Buy/Sell Deposit that may have been delivered pursuant to Section
10.02 shall be returned to the delivering party; provided, that if pursuant to
this Section 9.06(a)(ii)(A), the NYSTRS Group Agent has previously delivered
two Buy/Sell Offer Notices in connection with Proposed Non-Approved Entity
Change in Control transactions that were abandoned or terminated, then, upon
the delivery by the NYSTRS Group Agent of any subsequent Buy/Sell Offer Notice
under this Section 9.06(a)(ii)(A), the Reckson Members shall be required to
consummate the Buy/Sell Transaction regardless of whether the Proposed
Non-Approved Entity Change in Control occurring at such time is abandoned or
terminated.
(B) If a Reckson Change in Control shall have occurred
which did not result from a merger, sale of assets or other transaction
entered into voluntarily by a Reckson Party (an "Involuntary Change in
Control"), promptly following the Reckson Members' receipt of notification
that such Involuntary Change in Control occurred, the Reckson Group Agent may
furnish to the NYSTRS Group Agent a notice (the "Involuntary C I C Notice") of
the Involuntary Change in Control. The NYSTRS Group Agent may, within 45 days
following receipt of the Involuntary CIC Notice deliver a Buy/Sell Offer
Notice, in which event, the parties shall proceed with a Buy/Sell Transaction
in accordance with the provisions set forth in Section 10.02(a). If the NYSTRS
Members shall fail to timely deliver a Buy/Sell Offer Notice, then the NYSTRS
Members shall not be entitled to deliver a Buy/Sell Offer Notice in respect of
such Proposed Non-Approved Entity Change in Control until the date that is the
earlier of (x) the close of the Lockout Period and (y) the date that is 180
days following the Consummation Date.
(C) The NYSTRS Members shall not exercise any of the
rights set forth in this Section 9.06(a) if the NYSTRS Members' Percentage
Interest shall be lower than 20%.
(D) From and after the expiration of the lockout periods
set forth in Section 10.02, the occurrence of a Non-Approved Entity Change in
Control may be consummated without any rights on the part of the NYSTRS
Members under this Section 9.06.
9.07 Compliance with Mortgage Loans. No Member shall effectuate
or permit to be effectuated any Transfer or Pledge with respect to its
Interest unless the same is done in accordance with the requirements of
Applicable Loan documents.
ARTICLE X
SALE OF PROPERTY;
BUY/SELL ARRANGEMENTS
10.01 Sale of Property to Third Parties. (a) At any time on or
after April 1, 2005, either the Reckson Group Agent or the NYSTRS Group Agent
may tender (the party so tendering, the "Recommending Member") to the Group
Agent of the Unaffiliated Members (for purposes of this Section 10.01, such
Unaffiliated Members are collectively, the "Non-Approving Member") a written
notice (an "Offer Notice") in which the Recommending Member recommends that
the LLC direct the Property Owner to sell the Property; provided, however, no
-55-
Offer Notice may be given if the Applicable Loan documents prohibit transfers
of the Property to any third party and prohibit prepayment or defeasance of
the Applicable Loan (even with the payment of a prepayment penalty or similar
fee). The Offer Notice shall (i) contain a gross sale price at which the
Recommending Member would be willing to sell the Property (the "Sale Price"),
(ii) states whether the Recommending Member intends to offer the Property for
sale only to buyers who would be permitted transferees under the terms of the
Applicable Loan documents (whether as a matter of right or by obtaining
lender, rating agency or other approval) and which is capable of satisfying
the requirements of clause (II)(x) below (such a buyer, herein, a "Qualifying
Buyer") or to buyers who need not be Qualifying Buyers, and (iii) sets forth a
calculation of the estimated amount that would be distributed to the NYSTRS
Members in respect of its Interest in the LLC and to the Reckson Members in
respect of the Total Reckson Interest if the Property were sold, and all the
liabilities of the Applicable Entities were discharged; provided, however that
if the Recommending Member states that it intends to offer the Property for
sale only to Qualifying Buyers, the calculation shall assume that any
Applicable Loans will be assumed by the Qualifying Buyer and (iii) the Offer
Notice shall also indicate the name and address of the Property Escrow Agent
(as defined below). The Non-Approving Member shall have a period (the
"Response Period") of 60 days from receipt of the Offer Notice to deliver to
the Recommending Member a notice (the "Binding Property Notice") stating its
binding commitment to either (A) approve the proposed sale of the Property
subject to the further provisions of this Section 10.01 and direct the
Managing Member to market the Property, in which event the Managing Member
shall market the Property on behalf of the LLC and the Property Owner for a
period of up to 180 days (the "Marketing Period") (if no notice is sent within
the Response Period, the Non-Approving Member shall be deemed to have elected
to approve the marketing and sale of the Property), or (B) purchase the
Property for an amount (the "Adjusted Sales Price") sufficient to provide the
Recommending Member the same distribution it would receive if the Property
were sold for the Sale Price to the type of buyer specified in the Offer
Notice (i.e. assuming the Applicable Loan is assumed if a Qualifying Buyer was
so specified); otherwise assuming the Applicable Loan is prepaid or defeased
based on conditions existing on the date of the Offer Notice. An election by
the Non-Approving Member to purchase the Property shall only be effective if
accompanied by delivering to the New York office of one of the five largest
national title insurance companies in the United States which shall be
designated by the Recommending Member in the Offer Notice (the "Property
Escrow Agent") a deposit in an amount equal to 5% of the Adjusted Sale Price,
which amount shall be non-refundable (except in the event that the Property
Owner fails to deliver title, in which case such deposit shall be returned to
the Non-Approving Member) and shall be held in escrow pursuant to an escrow
agreement reasonably satisfactory to each of the Members, and the
Non-Approving Member and the Property Owner shall be obligated to close on the
purchase and sale of the Property on a date (the "Sale Closing Date") selected
by the Non-Approving Member that is no more than 120 days following the
delivery of the Binding Property Notice and otherwise in accordance with
Section 10.01(b).
If the Non-Approving Member delivers a notice described in
clause (A) of the preceding paragraph (or fails to deliver a notice within the
Response Period) and, during the Marketing Period, a third party bona fide
purchaser (who shall be a Qualifying Buyer if such Qualifying Buyer was
specified in the Offer Notice) and in which Recommending Member or its
-56-
Affiliates have no more than a 5% direct or indirect ownership interest offers
to enter into a binding purchase and sale agreement for the purchase of the
Property (a "Third Party Contract") which Third Party Contract (I) contains a
due diligence period of no more than 60 days for all matters (including,
without limitation, obtaining financing and receiving any approvals required
under any Applicable Loan), and (II) provides for the purchase and sale of the
Property on the express condition that (x) such party shall be required to
assume in writing all Secured Liabilities (subject to any limitations on
recourse set forth therein) and shall be required to deliver to the Recourse
Parties written instruments (each, a "Release") releasing all Recourse Parties
from Existing Recourse Obligations, or, if a Release shall not be obtained, an
indemnity (a "Release Indemnity") in form and substance reasonably
satisfactory to the Recourse Parties from a party whose credit worthiness is
reasonably satisfactory to the applicable Recourse Party in light of the
liabilities involved, indemnifying such Recourse Parties for any loss, cost,
or damage suffered or incurred by such parties in connection with any
liabilities or claims with respect to such Existing Recourse Obligations
arising from events first accruing on or after the Sale Closing Date and (y)
such purchasing party is required to pay all costs and expenses that may be
incurred by the Applicable Entities in connection with the foregoing and (III)
is on otherwise commercially reasonable terms at a gross purchase price
(without any deduction for any brokerage commissions or similar fees payable
in connection with such sale and without adjustment for apportionments) of
greater than 95% of the Sale Price, then the Non-Approving Member shall be
deemed to have approved the Third Party Contract and the Property Owner shall
proceed to close on the sale of the Property to such third party. If (xx) a
fully-executed letter of intent (an "LOI") setting forth the material terms of
the Third Party Contract shall not be delivered to the Property Owner on or
prior to the close of the Marketing Period, (yy) a fully-executed copy of the
Third Party Contract shall not be delivered to the Property Owner on a date
(the "Contract Date") that is within 60 days following the execution of the
LOI or (zz) the sale of the Property substantially in accordance with the
terms of the Third Party Contract shall not have closed on or prior to the
date that is 60 days following the Contract Date (such 60-day closing period
shall be subject to any standard extensions (e.g., to cure title violations)
granted pursuant to the Third Party Contract, such extensions not to exceed 60
days in the aggregate) the Managing Member shall not be directed to market the
Property without once again complying with the provisions of this Section
10.01(a) and the Recommending Member may not invoke the provisions of this
Section 10.01 for a period of 12 months following the date of the first to
occur of the events described in (xx), (yy) or (zz) of this sentence.
(b) If the Non-Approving Member has elected to purchase the
Property in accordance with (a) above the purchase and sale shall be
effectuated as follows:
(A) the Non-Approving Member or its designee (herein, the
"Purchasing Party") shall take title to the Property in its "as is" physical
condition;
(B) the Purchasing Party shall deliver to the Property
Owner the Adjusted Sale price (less the deposit) by wire transfer in
immediately available funds and the deposit, together with all interest
accrued thereon, shall be transferred from the Escrow Agent to the Property
Owner;
-57-
(C) the Property Owner shall pay the transfer, stamp or
similar taxes due in connection with the conveyance of the Property;
(D) (I) the Property Owner shall deliver to the Purchasing
Party or its designee, a duly executed and acknowledged bargain and sale deed
without covenants conveying the Property to the Purchasing Party or its
designee(s), subject only to the Secured Liabilities, which conveyance shall
be without any representation or warranty by, or recourse against, any
Applicable Entity and (II) the Purchasing Party shall have paid all costs and
expenses incurred by the Applicable Entities in connection with the assumption
of the Secured Liabilities and the Releases and/or Release Indemnities;
(E) the Purchasing Party shall provide Releases or a
Release Indemnity in accordance with Section 12.03;
(F) all items of revenue and expense of the Property
(including the apportionments which are customarily apportioned in the sale of
properties comparable to the Property shall be apportioned between the
Property Owner and the Purchasing Party for the current calendar period as of
11:59 p.m. on the day preceding the Sale Closing Date in accordance with the
customs and practices usual in transactions involving properties comparable to
the Property; and
(G) the Property Owner and the Purchasing Party shall
deliver such additional instruments (without representation or warranty by or
material liability to the Property Owner or the LLC) which are customarily
delivered by buyers or sellers of properties comparable to the Property.
(c) (i) If the Property Owner shall default in its obligation
to close the sale of the Property contemplated by this Section 10.01, then the
Recommending Member or Purchasing Party may, as the case may be, seek specific
performance to cause the Property Owner to sell the Property.
(ii) If the Purchasing Party shall default in its
obligation to purchase the Property as contemplated by this Section 10.01,
then the Recommending Member may either (A) cause the Property Owner, or may
itself, as the case may be, seek specific performance against the Purchasing
Party or (B)(I) cause the Property Owner to retain the deposit held by the
Property Escrow Agent as liquidated damages, and/or (II) for a period of 12
months cause the Property Owner to sell the Property to any unrelated third
party pursuant to a Third Party Contract without the Purchasing Party having
any rights to purchase such Property under this Section 10.01 or otherwise
consent thereto. During the 12-month period set forth in the preceding
sentence, the Purchasing Party shall not be permitted to invoke the procedures
set forth in this Section 10.01 or in Sections 9.02 or 10.02.
(iii) If the Recommending Member shall default in its
obligations under this Section 10.01, (A) the Purchasing Party may cause the
Property Owner, or may itself, as the case may be, seek specific performance
against the Recommending Member, or (B) the Property Escrow Agent shall
immediately return the Deposit, if any, to the Purchasing Party.
-58-
(iv) A party may exercise any one or more of the foregoing
remedies, but such remedies shall collectively be the sole remedies for
default under this Section 10.01.
(d) Notwithstanding anything to the contrary contained in this
Agreement, once the procedures outlined in this Section 10.01 have been
initiated, the procedures under Section 9.02 or 10.02 shall not be initiated
until all of the rights under this Section 10.01 shall have been exercised,
exhausted or extinguished.
10.02 Buy-Sell Arrangements. (a) At any time following the
second Anniversary of the date hereof (the "2nd Anniversary Date"), either the
Reckson Group Agent or the NYSTRS Group Agent (as applicable, the "Offeror
Member") may tender to the Group Agent of the Unaffiliated Members (for
purposes of this Section 10.02 such Unaffiliated Members are collectively, the
"Offeree Member") a good faith, written offer (a "Buy/Sell Offer Notice") in
which it offers either to sell all of its Interest to the Offeree Member or to
purchase from the Offeree Member all of its Interest (it being acknowledged
that if the Reckson Members are transferring their "Interest" hereunder, the
Reckson Members shall transfer and the acquiring party shall acquire the Total
Reckson Interest and provided, that during the period commencing on the 2nd
Anniversary Date through and including March 31, 2005 a Buy/Sell Offer Notice
may only be delivered if a dispute shall exist with respect to the Major
Decision set forth in Section 7.03(b) and the dispute shall not have been
resolved after 60 days of good faith negotiation between the members of the
Management Committee (the periods and circumstances described above during
which a Buy/Sell Offer Notice may not be delivered are collectively, the
"Lockout Period"). The Buy/Sell Offer Notice shall provide a price (the
"Buy/Sell Price") that the Offeror Member would be willing to sell the
Property, and the LLC Accountants' calculation (subject to the review of any
Unaffiliated Member) of the amount that would be distributed to (x) the NYSTRS
Members (the "NYSTRS Interest Amount"), and (y) the Reckson Members (the
"Reckson Interest Amount"), if the Property were sold for cash in an amount
equal to the Buy-Sell Price and the purchaser assumed all Secured Liabilities.
The Offeree Member shall give written notice (a "Buy/Sell Response Notice")
within 60 days after the receipt of the Buy/Sell Offer Notice that the Offeree
Member will either (x) sell its entire Interest to the Offeror Member for an
amount equal to the NYSTRS Interest Amount or the Reckson Interest Amount, as
applicable or (y) purchase the entire Interest of the Offeror Member for an
amount equal to the NYSTRS Interest Amount or the Reckson Interest Amount, as
applicable (the transactions contemplated by (x) and (y) is a "Buy/Sell
Transaction"). If the Offeree Member elects in the Buy-Sell Response Notice to
purchase the entire Interest of the Offeror Member, the Offeree Member shall,
simultaneously with the delivery of the Buy/Sell Response Notice, deliver to
the New York office of one of the five largest title insurance companies in
the United States (the "Buy/Sell Escrow Agent") (to be designated by the party
transferring its Interest) a Deposit (the "Buy/Sell Deposit") equal to 5% (as
reasonably estimated by the party purchasing the Interest) of whichever of the
NYSTRS Interest Amount or the Reckson Interest Amount is being purchased. If
the Offeree Member shall elect in the Buy/Sell Response Notice to sell its
Interest to the Offeror Member, within 10 days following the Offeror Member's
receipt of the Buy/Sell Response Notice, the Offeror Member shall deliver to
the Buy/Sell Escrow Agent the Buy/Sell Deposit. Failure to respond within the
60-day period set forth above shall be conclusively deemed to be an election
by the Offeree Member to sell its entire Interest. Failure of a Member to
timely
-59-
deliver the Deposit shall cause such Member to be treated as a Purchasing
Buy/Sell Member which is a defaulting Member under paragraph (c) below. The
Buy/Sell Offer Notice and the Buy/Sell Response Notice (or deemed response)
shall constitute a binding agreement of purchase and sale between the Offeree
Member and the Offeror Member in accordance with the terms hereof.
(b) The closing of the Buy/Sell Transaction shall be on a date
(the "Buy/Sell Closing Date") and at a place designated by the purchasing
Member (or its designee) (the "Purchasing Buy/Sell Member") which is not more
than 120 days after the expiration of the 60-day election period (such
Buy/Sell Closing Date to be determined by the Purchasing Buy/Sell Member on no
less than 15 days prior notice to the Selling Buy/Sell Member, or if no such
notice is sent, then on the 105th day following the end of the 60-day election
period set forth in paragraph (a) above) (subject to an adjournment of the
closing as provided in clause (vii) below). Prior to the Buy/Sell Closing
Date, the Members shall cooperate in the preparation and filing of any
regulatory filings which may be necessary. At the closing:
(i) the selling Member (the "Selling Buy/Sell Member")
shall deliver to the Purchasing Buy/Sell Member a duly executed and
acknowledged instrument of assignment transferring the Interest of the Selling
Buy/Sell Member to the Purchasing Buy/Sell Member free and clear of all liens
and encumbrances (other than the Secured Liabilities);
(ii) the Selling Buy/Sell Member and the Purchasing
Buy/Sell Member shall each pay their pro rata share, based upon their
respective Percentage Interests, of all transfer, gains, stamp or similar
taxes, if any, due in connection with the conveyance of the Selling Buy/Sell
Member's Interest;
(iii) the Purchasing Buy/Sell Member shall pay the
purchase price to the Selling Buy/Sell Member in immediately available funds
and shall deliver to the Selling Buy/Sell Member a duly executed agreement
(which shall survive the closing under this Section 10.02(b)) indemnifying the
Selling Buy/Sell Member against (1) claims based upon events arising from or
in connection with the LLC, the Property Owner or the Property from and after
the Buy/Sell Closing Date, and (2) except as provided under clause (viii)
below, any personal recourse liabilities for which the Members are jointly and
severally liable which accrue from and after the Buy/Sell Closing Date;
provided that Purchasing Buy-Sell Member's indemnity obligation under this
paragraph (iii) shall be limited to its direct or indirect interest in the
Property (or any Applicable Entity) (and any proceeds resulting from the sale
of all or any portion of such interest);
(iv) Net Ordinary Cash Flow and Net Extraordinary Cash
Flow up to the Buy/Sell Closing Date shall be distributed in accordance with
the provisions of Section 6.05 (provided, if the Total Reckson Interest is
being sold, "Net Ordinary Cash Flow" and "Net Extraordinary Cash Flow" shall
be distributed under all Reckson Entity Agreements) which provisions shall
survive the closing pursuant hereto for purposes of making or correcting any
customary closing adjustments (the parties acknowledge that if the Total
Reckson Interest is being sold the phrases "Capital Contributions", "Default
Loans" and "Net Extraordinary Cash Flow" shall have the meanings set forth in
each Reckson Entity Agreement);
-60-
(v) there shall be distributed to the Selling Buy/Sell
Member its Percentage Interest of Cash Reserves, if any;
(vi) the purchase price to be paid by the Purchasing
Buy/Sell Member shall be (x) increased by (A) the aggregate amount of all
additional Capital Contributions made or treated as made by the Selling
Buy/Sell Member in the period between the date of the Buy/Sell Offer Notice
and the Buy/Sell Closing Date and (B) the amount of any unpaid Default Loans
together with interest then accrued thereon, and any other amounts due from
the Purchasing Buy/Sell Member to the Selling Buy/Sell Member in accordance
with this Agreement, (y) decreased by (I) any amounts of Net Extraordinary
Cash Flow distributed to the Selling Buy/Sell Member during the period between
the date of the Buy/Sell Offer Notice and the Buy/Sell Closing Date pursuant
to Section 6.05 and (II) the amount of any unpaid Default Loans together with
interest then accrued thereon, and any other amounts due from the Selling
Buy/Sell Member to the Purchasing Buy/Sell Member in accordance with this
Agreement and (z) adjusted to reflect any apportionments set forth herein;
(vii) the Selling Buy/Sell Member shall discharge of
record all liens and encumbrances affecting its Interest (other than Secured
Liabilities), and if it fails to do so on or before the Buy/Sell Closing Date,
the Purchasing Buy/Sell Member may use any portion of the purchase price to
pay and discharge any such liens and/or encumbrances (other than Secured
Liabilities) and any related expenses and adjourn the closing for such period
as may be necessary for such purpose;
(viii) the Purchasing Buy/Sell Member shall provide the
Selling Buy/Sell Member's Recourse Party with Releases or a Release Indemnity
in accordance with Section 12.03 ; and
(ix) the Members shall execute all amendments to
fictitious name, limited liability company or similar certificates necessary
to effect the withdrawal of the Selling Buy/Sell Member from the LLC and, if
applicable, the termination of the LLC.
(c) If a Member shall fail to consummate the purchase or sale
contemplated by this Section 10.02, then if the basis of the triggering of the
Buy/Sell Offer Notice was a dispute arising under Section 7.03(b), then, the
LLC shall act in accordance with the instructions of the non-defaulting Member
in connection with such matter. During the 12-month period following the
scheduled Buy/Sell Closing Date the defaulting Member shall not be permitted
to invoke any of the procedures set forth in this Section 10.02 or in Sections
10.01 or 9.02 and the non-defaulting Member shall have the right to (x) sell
its Interest without complying with the provisions of this Section 10.02 or
the right of First Offer set forth in Section 9.02 and (y) exercise the
Unilateral Property Sale Right (in accordance with the terms of Section
9.02(e)). The non-defaulting Member may also pursue all of its remedies at law
and/or in equity, including, without limitation, specific performance. If the
Purchasing Buy/Sell Member is the defaulting Member, the Selling Buy/Sell
Member shall have the right to retain the Buy/Sell Deposit as liquidated
damages, together with any and all interest earned thereon. If the Selling
Buy/Sell Member is the defaulting party then, at the option of the Purchasing
Buy/Sell Member, the Purchasing Buy/Sell Member may either (I) demand and
receive from the Buy/Sell Escrow Agent
-61-
the Buy/Sell Deposit (together with all interest thereon) to the Purchasing
Buy/Sell Member or (II) seek specific performance. The non-failing Member may
exercise any one or more of the foregoing remedies, but such remedies shall
collectively be the sole remedies of the non-failing Member.
(d) Each Member agrees that it shall be reasonable and
cooperate with all Unaffiliated Members, including, without limitation,
executing any documents which may be reasonably required, in order to
consummate the transactions contemplated by this Section 10.02.
(e) Notwithstanding anything to the contrary contained in this
Agreement, once the procedures outlined in this Section 10.02 are initiated,
the procedures under Section 9.02 and Section 10.01 shall not be initiated
until all of the rights under this Section 10.02 shall have been exercised,
exhausted or extinguished relating to such first initiation.
10.03 Purchase of Ground Leased Parcel. In the event that the
lessor under the Ground Lease shall offer to sell its interest (the "Lessor's
Interest") in the Ground Leased Parcel to either Member, the Member in receipt
of such offer shall promptly submit the offer to the Management Committee for
review. The Management Committee shall have a period of 30 days within which
to cause an Applicable Entity (or its designee) to enter into a binding
contract to purchase the Lessor's Interest. In the event the LLC (or its
designee) has failed to enter into such contract within such 30-day period,
then neither Member nor its Affiliates shall be permitted to purchase Lessor's
Interest. Each Member shall be obligated to contribute its Percentage Interest
of any amounts required to purchase the Lessor's Interest.
ARTICLE XI
DISSOLUTION AND LIQUIDATION
11.01 Events Causing Dissolution. The LLC shall be dissolved
and its affairs wound up upon the occurrence of any of the following:
(a) the Members consent in writing to such dissolution;
(b) the sale or other disposition (voluntarily or
involuntarily) by the LLC of all or substantially all of the LLC Assets and
the collection of all amounts derived from any such sale or other disposition,
including all amounts payable to the LLC under any promissory notes or other
evidences of indebtedness taken by the LLC (unless the Members shall elect to
distribute such indebtedness to the Members in liquidation), and the
satisfaction of contingent liabilities of the LLC in connection with such sale
or other disposition;
(c) the occurrence of any event that, under the LLC Act, would
cause the dissolution of the LLC or that would make it unlawful for the
business of the LLC to be continued;
(d) any Member becomes Bankrupt; or
-62-
(e) the liquidation of the Property Owner or the occurrence of
any event that would cause the dissolution of the Property Owner or otherwise
make it unlawful for the business of the Property Owner to be continued.
11.02 Right to Continue Business of the LLC. Upon an event
described in Section 11.01(c) or Section 11.01(d) (but not an event described
in Section 11.01(c) that makes it unlawful for the business of the LLC to be
continued), the LLC thereafter shall be dissolved and liquidated unless,
within 90 days after such event, an election to continue the business of the
LLC shall be made in writing by a remaining Member. If such an election to
continue the LLC is made, then the LLC shall continue until another event
causing dissolution in accordance with this Article XI shall occur.
11.03 Distributions Upon Dissolution.(a) Upon the dissolution
of the LLC, the Managing Member (or any other Person responsible for winding
up the affairs of the LLC) shall proceed without any unnecessary delay to sell
or otherwise liquidate the LLC Assets and pay or make due provision for the
payment of all debts, liabilities and obligations of the LLC.
(b) Subject to Section 6.05(a), the net liquidation proceeds
and any other liquid assets of the LLC after the payment of all debts,
liabilities and obligations of the LLC (including, without limitation, all
amounts owing to the Members under this Agreement, including payment of the
Remaining Amount as provided above), the payment of expenses of liquidation of
the LLC, and the establishment of a reasonable reserve in an amount estimated
by the Managing Member to be sufficient to pay any amounts reasonably
anticipated to be required to be paid by the LLC, shall be distributed to the
Members in accordance with each Member's Capital Accounts. In paying the
debts, liabilities and obligations of the LLC, any available funds shall be
applied (to the extent practical and permitted by law), first, as provided in
Section 6.05(a), second, to repay any indebtedness or liabilities of the LLC
for which the Members (or any guarantor of the obligations of the LLC) shall
have recourse liability, and third, to repay any other indebtedness or
liabilities of the LLC.
(c) Each of the Members shall be furnished with a statement
prepared by, or under the supervision of, the LLC Accountants, Managing Member
and any other person or entity responsible for winding up the affairs of the
LLC which shall set forth the assets and liabilities of the LLC as of the date
of complete liquidation. Upon dissolution and liquidation of the LLC, the
Members shall execute, acknowledge and cause to be filed any notice or
certificate required by law to reflect the termination of the LLC.
ARTICLE XII
RECOURSE OBLIGATIONS
12.01 Goldman Recourse Obligations. Property Owner has obtained
a Mortgage Loan (the "Goldman Loan") from Secore Financial Corporation
("Goldman") pursuant to that certain Loan Agreement dated as of July 18, 2001
between Goldman and Property Owner (the "Goldman Loan Agreement"). In
connection with the consummation of the Goldman Loan, the Reckson Recourse
Party has executed (x) the Goldman Loan Agreement
-63-
for the purpose of, jointly with Property Owner, indemnifying Goldman in
respect of certain matters (collectively, the "Loan Agreement Recourse
Obligations") and (y) the Environmental Indemnity Agreement (the
"Environmental Indemnity"). Furthermore, in connection with Property Owner's
purchase of the Property, MOP entered into the Schulweis Guaranty. If the
Reckson Recourse Party shall pay, or be required to pay (pursuant to any
agreement, settlement, arbitration or adjudication) any amount (collectively,
"Damages") in connection with (I) the Loan Agreement Recourse Obligations,
(II) the Environmental Indemnity or (III) the Schulweis Guaranty (the
obligations described in clauses (I), (II) and (III) are collectively, the
"Existing Recourse Obligations"), the Person who is the Managing Member shall
be responsible for 100% of such Damages to the extent arising or accruing from
acts or omissions occurring while such Person is the Managing Member (and, in
the case of the Managing Member as of the date hereof, also to the extent
accruing from acts or omissions occurring prior to the date hereof), subject
to the following:
(I) If the Existing Recourse Obligations result from a
transaction, act or event authorized by a Major Decision
or otherwise approved by the Unaffiliated Members (for
purposes of this Section 12.01, such Unaffiliated Members
are collectively, the "Non-Managing Member") the Recourse
Party affiliated with the Non-Managing Member shall be
liable for the Non-Managing Member's Initial Percentage
Interest of any such Damages;
(II) If the Existing Recourse obligation is a Notice Recourse
Obligation, the Non-Managing Member shall not be liable
for any Damages unless authorized by a Major Decision or
otherwise approved by the Non-Managing Member; (provided
that in connection with such Major Decision or other
approval, Non-Managing Member had actual knowledge that
the action approved by such Major Decision and/or approval
might trigger a Notice Recourse Obligation). If the
conditions set forth in the previous sentence are
satisfied, the Recourse Party affiliated with the
Non-Managing Member shall be liable for the Non-Managing
Member's Initial Percentage Interest of such Damages;
(III) If the transfer of a Member's direct or indirect interest
in the LLC triggers recourse liability under of Section
9.19(b)(iv) of the Goldman Loan Agreement, any Damages
resulting therefrom shall be paid solely by the Recourse
Party affiliated with the Member (or such Member's
Affiliate) that committed such breach; and
(IV) If a Member (or its Affiliate) shall breach any of the
obligations under this Section 12.01, the Recourse Party
affiliated with the breaching party shall indemnify and
hold harmless the non-breaching party (and its Affiliates)
from and against all loss, cost, expense (including
reasonable counsel fees), damage and liability to
-64-
such non-breaching party resulting from the breach of this
Section 12.01.
If a Recourse Party shall fail to timely pay any amounts
required under this Section 12.01, such Recourse Party shall be obligated to
pay interest on demand made at any time and from time to time on any such
unpaid amounts at the Goldman Default Rate from the date due to the date paid.
Notwithstanding anything to the contrary contained herein, the
Reckson Recourse Party shall be solely liable with respect to any obligations
payable under clause (ii) of Section 9.19(b) of the Goldman Loan Agreement
resulting from the "intentional misrepresentation of Borrower or [MOP]".
12.02 Optional Recourse Obligations. If, after the date hereof,
a Recourse Party agrees to furnish any recourse obligations to a third party
to provide additional security for the obligations of an Applicable Entity
(e.g., a guaranty in connection with an Applicable Loan or a guaranty of a
letter of credit obligation to a tenant at the Property) (such obligations are
collectively, the "Optional Recourse Obligations"), the LLC shall indemnify
and hold harmless the applicable Recourse Party from and against all Damages
to such Recourse Party resulting from the Optional Recourse Obligation in
question.
12.03 Release and Substitution of Recourse Obligations. In the
event that (i) the Total Reckson Interest, on the one hand, or the NYSTRS
Members' Interest, on the other hand, is being transferred to an Unaffiliated
Member or its designee pursuant to Section 9.02 or Section 10.02) (or
otherwise) or (ii) a Member (or its designee) shall purchase the Property in
accordance with the provisions of Section 10.01(b) (the date that a
transaction described in clauses (i) or (ii) shall be consummated shall be
called the "Transfer Date"), the Non-Transferring Member (with respect to
Section 9.02), the Purchasing Buy/Sell Member (with respect to Section 10.02)
and/or the Purchasing Party (with respect to Section 10.01(b) shall, as a
condition to closing the applicable transaction, use all commercially
reasonable efforts to obtain Releases for all recourse obligations of the
Recourse Party affiliated with the Transferring Member, Selling Buy/Sell
Member or Selling Party (as applicable) (which reasonable efforts shall
include the offering to the applicable third party a substitute guarantor (or
obligor) reasonably acceptable to such third party in light of the liabilities
involved) (such recourse obligations shall include the Schulweis Guaranty)
and, in the event a Release shall not be obtained, such Non-Transferring
Member, Purchasing Buy/Sell Member or Purchasing Party (as applicable) shall
cause its affiliated Recourse Party to furnish to the Recourse Party of such
Transferring Member, Selling Buy/Sell Member or Selling Party (as applicable)
a reasonably acceptable Release Indemnity; provided that any Release or
Release Indemnity shall only cover liabilities arising from events first
occurring on or after the Transfer Date.
-65-
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
13.01 Representations and Warranties. (a) Each Reckson Member
hereby represents and warrants to NYSTRS as of the date hereof that:
(i) Schedule 3 sets forth all Reckson Ownership Leases
and, to the Reckson Members' knowledge, Schedule 4 sets forth all Pre-Reckson
Ownership Leases. True and complete copies of all Reckson Ownership Leases
have been delivered to NYSTRS and constitute the entire agreement between the
landlord and tenant with respect to the premises demised thereunder. To the
Reckson Members' knowledge, true and complete copies of all Pre-Reckson
Ownership Leases have been delivered to NYSTRS and, to the Reckson Members'
knowledge, constitute the entire agreement between the landlord and tenant
with respect to the premises demised thereunder. The Reckson Ownership Leases
and, to the Reckson Members' knowledge, the Pre-Reckson Ownership Leases have
not been amended or modified by Property Owner or any other Affiliate of a
Reckson Member, except as set forth on said Schedules 2 and 3. Schedule 5 sets
forth all security deposits currently held by or on behalf of the Property
Owner under the Leases. Except as set forth on Schedule 6:
(A) no tenant under a Lease (a "Tenant") is more than
30 days in arrears in the payment of base rent due under its Lease which has
accrued since the Property Owner acquired ownership of the Property; the
Property Owner has not given any written notice to any Tenant that such Tenant
has failed to perform any of its material obligations under its Lease, which
failure remains uncured;
(B) no Applicable Entity has received written notice
from any Tenant that the Property Owner has failed to perform any of its
material obligations under a Lease, which failure remains uncured; and
(C) no Applicable Entity has received written notice
from any Tenant that such Tenant has filed for bankruptcy and/or
reorganization.
(ii) no Applicable Entity has received written notice of
and, to the Reckson Members' knowledge, there are no pending condemnation
proceedings or similar proceedings affecting the Property.
(iii) no Applicable Entity has granted to any Person any
right or option to acquire the Property.
(iv) Schedule 7 sets forth the estimated cost to complete
(as reasonably estimated by the Reckson Members) of (A) all the landlord's
work, (B) all tenant improvement work presently required to be performed by
the landlord and (C) all tenant work allowances required to be paid by the
landlord currently outstanding, in the case each of (A), (B) and (C), with
respect to the Reckson Ownership Leases (exclusive of any of the foregoing
contingent on future events, such as the exercise of options). To the Reckson
Members' knowledge, Schedule 7
-66-
sets forth a list (I) of all the landlord's work, (II) all tenant improvement
work presently required to be performed by the landlord and (III) all tenant
work allowances required to be paid by the landlord, in the case each of (I),
(II) and (III), currently outstanding with respect to the Pre-Reckson
Ownership Leases (exclusive of any of the foregoing contingent on future
events, such as the exercise of options).
(v) Schedule 8 sets forth all of the brokerage commissions
outstanding and unpaid relating to the Property with respect to the Reckson
Ownership Leases. To the Reckson Members' knowledge, Schedule 8 sets forth all
of the brokerage commissions outstanding and unpaid relating to the Property
with respect to the Pre-Reckson Ownership Leases.
(vi) To the Reckson Members' knowledge, all licenses and
permits required to be obtained by the Property Owner in connection with the
present use and occupancy of the Property have been obtained and are in full
force and effect, other than any licenses and permits the failure of which to
obtain and be in full force and effect would not have a material adverse
effect on the present use, occupancy and value of the Property.
(vii) No Applicable Entity is an "employee benefit plan",
as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974 ("ERISA"), or a "plan", as defined in Section 4975(e) of the Internal
Revenue Code (the "Code"), and the assets of the Applicable Entity have not
been deemed "plan assets" of one or more such plans for purposes of Title I of
ERISA or Section 4975 of the Code. No Applicable Entity is a "governmental
plan" within the meaning of Section 3(32) of ERISA.
(viii) The Reckson Members have heretofore delivered to
NYSTRS true and complete copies of each of the Material Agreements; each of
the Material Agreements is in full force and effect and has not been modified
or amended; Reckson has not received a written notice of default of any of its
material obligations under any of the Material Agreements and knows of no
material default on the part of the other parties thereto.
(ix) Schedule 9 sets forth a list of the documents (the
"Ground Lease Documents") which constitute the entire agreement between
Property Owner and the lessor under the Ground Lease. True and complete copies
of the Ground Lease Documents have been delivered to NYSTRS. The Ground Lease
is the sole ground lease applicable to the Property. No Applicable Entity has
received written notice of default under the Ground Lease or has given a
notice of default to the lessor under the Ground Lease. To the Reckson
Members' knowledge (A) there exists no material default of the lessor under
the Ground Lease, (B) the Ground Lease is in full force and effect and (C) all
rents, additional rents and sums payable pursuant to the Ground Lease that
were due and payable have been paid.
(x) Except in connection with any Property-Binding
Arrangement, there are no collective bargaining agreements or other labor
union contract to which any Applicable Entity is a direct party. Except as set
forth on Schedule 10, no Applicable Entity has employees.
-67-
(xi) Except for the Goldman Loan, there are no other
Applicable Loans outstanding on the date hereof. The outstanding principal
amount of the Goldman Loan is, as of the date hereof, $249,151,306.10. All
interest on the Goldman Loan has been paid through November 30, 2001. Copies
of the Goldman Loan documents delivered from the Reckson Members to NYSTRS are
true and complete copies and constitute the entire agreement between Secore
Financial Corporation and Property Owner with respect thereto. The Goldman
Loan documents have not been amended or modified. The Applicable Entities have
not received written notice of a default under the Goldman Loan documents and,
to the Reckson Members' knowledge, there is no (x) payment default under the
Goldman Loan documents and (y) there is no other material default as to which
the Reckson Members reasonably expect to receive notice of.
(xii) The sole business of (I) the LLC consists of owning
interests in MM LLC, Third Avenue LLC and the Property Owner, (II) MM LLC
consists of owning interests in the Property Owner and acting as the Managing
Member of the Property Owner, (III) Third Avenue LLC consists of owning
interests in the Property Owner and (IV) the Property Owner consists of owning
and operating the Property and, in each of (I)-(IV), activities incidental
thereto. No Applicable Entity has engaged in any other business since the time
of its formation.
(xiii) The ownership of each Applicable Entity is as set
forth in the operating agreement of such Applicable Entity, as amended to
date, and all such interests are owned free and clear of any liens, security
interest or other encumbrances. To the Reckson Members' knowledge, there are
no defaults by any member or former member under an operating agreement (or
predecessor operating agreement) of an Applicable Entity. There are no
"Reckson Member Loans" (as such term is defined in the Property Owner LLC
Agreement) currently outstanding.
(xiv) Except as set forth on Schedule 11, there are no
actions, suits or proceedings at law or in equity now pending or, to the
Reckson Members' knowledge, threatened against or affecting an Applicable
Entity or the Property which actions, suits or proceedings, alone or in the
aggregate, if determined against an Applicable Entity of the Property, would
result in a material adverse effect on the value of the LLC or the Property.
The Members acknowledge that certain litigation exists between the Property
Owner and P.J. Clarke's (the "P.J. Clarke's Litigation"). In connection with
such litigation, the Property Owner has asserted that P.J. Clarke's is not
entitled to possession of its premises and that P.J. Clarke's is not paying
sufficient amounts for use and occupancy (the "Property Owner Claims") and
P.J. Clarke's has asserted a counterclaim against Property Owner claiming that
P.J. Clarke's suffered damage as a result of Property Owner's installation of
certain scaffolding at the Property (the "Scaffolding Counterclaim"). For the
avoidance of doubt, the Members acknowledge that all judgments, settlements,
or other charges, debits or offsets and all legal expenses payable in
connection with the Scaffolding Counterclaim shall be paid for solely by the
Reckson Members and all legal expenses payable in connection with the Property
Owner Claims shall be paid by the Reckson Members to the extent incurred prior
to the date hereof and shall be paid by the LLC to the extent incurred from
and after the date hereof. Furthermore, any judgment or settlement received in
connection with the Property Owner Claims shall be similarly allocated.
Finally, the Members acknowledge that the legal expenses relating to the
Property Owner Claims and the Scaffolding
-68-
Counterclaim may not always be readily and discretely distinguished and, in
that regard, the Members shall equitably allocate the legal expenses between
the Scaffolding Counterclaim and the Property Owner Claims.
(xv) Each Applicable Entity is a limited liability
company, validly existing and in good standing under the laws of the State of
Delaware.
(xvi) The Reckson Members have delivered to NYSTRS true
and complete copies of (I) the Combined Financial Statements of 919 Third
Avenue Associates L.P. and 919 Fee Associates L.P. as of December 31, 1998 and
December 31, 1999, (II) Financial Statements for Property Owner for the period
from July 18, 2000 through December 31, 2000, (III) (combined unaudited
financial statements for Property Owner as of August 31, 2001 and (IV) the
operating budget for Property Owner for the 4 months ending December 31, 2001.
Since August 31, 2001, there has been no material adverse change in the
financial condition of the Property.
(xvii) No Applicable Entity or Reckson Member is Bankrupt.
(xviii) The Reckson Members have heretofore delivered to
the NYSTRS Members copies of the following reports: Dames & Moore Phase 1
Environmental Type Assessment, dated May 14, 1999; Aquaterra Phase I
Environmental Report, dated August 8, 2000; IVI Phase Environmental Report,
dated November 16, 1998; and ATC Phase 1 Environmental Site Assessment, dated
June 22, 2001. The NYSTRS Members have delivered to the Reckson Members the
following report: Property Solutions report prepared on behalf of NYSTRS in
connection with this transaction. The reports described above are
collectively, the "Environmental Reports". No Applicable Entity has received
written notice from any governmental agency of any investigation or proceeding
by such agency concerning (A) the presence or alleged presence of Hazardous
Materials at the Property or (B) an Applicable Entity's (or the Property's)
violation of an Environmental Law. To the Reckson Members' knowledge, other
than as disclosed in the Environmental Reports, if at all, there are no
Hazardous Materials present on the Property except in amounts and in a manner
which are not in violation of the Environmental Laws; provided, the Reckson
Members make no representation as to the presence at or in the Property of
asbestos or asbestos-containing materials.
(xix) The Reckson Members have heretofore delivered to the
NYSTRS Member a true, correct and complete copy of the Schulweis Guaranty.
Any and all uses of the phrase, "to the Reckson Members'
knowledge" or other references to the Reckson Members' knowledge in this
Agreement shall mean the actual, present knowledge of Jason Barnett, Richard
Conniff, Philip M. Waterman III, Ralph Ardolina, Matthew Duthie and Karen
Lanzotti (the "Reckson Knowledge Individuals"). NYSTRS acknowledges that the
Reckson Knowledge Individuals have not performed and are not obligated to
perform any investigation or review of any files or other information in the
possession of the Reckson Members, or to make any inquiry of any persons, or
to take any other actions in connection with the representations and
warranties of the Reckson Members set forth in this Agreement. Neither the
actual, present knowledge of any other individual or entity, nor the
constructive knowledge of
-69-
the Reckson Knowledge Individuals or of any other individual or entity, shall
be imputed to the Reckson Knowledge Individuals.
(b) The representations and warranties contained in Section
13.01(a) shall survive for 12 months following the date hereof (the "Rep.
Closing Date"), except that the representations set forth in clauses (a)(xii)
and (xiii), above shall survive for the applicable statute of limitations.
Each such representation and warranty (other than those set forth in clauses
(a)(xii) and (xiii), shall automatically be null and void and of no further
force or effect on the Rep. Closing Date unless, prior to the Rep. Closing
Date, NYSTRS shall have commenced a legal proceeding (a "Proceeding") against
the Reckson Members alleging that the Reckson Members shall be in breach of
such representation or warranty and that NYSTRS shall have suffered actual
damages as a result thereof in the aggregate in excess of $375,000 (the "Rep.
Basket"). Notwithstanding anything to the contrary contained herein NYSTRS
shall not have a claim for any breach of a representation or warranty if
NYSTRS had actual knowledge of such breach on or before the date hereof. If
NYSTRS shall have timely commenced a Proceeding and a court of competent
jurisdiction shall, pursuant to a final, non-appealable order in connection
with such Proceeding, determine that (i) the Reckson Members were in breach of
any applicable representation or warranty as of the date of this Agreement,
(ii) NYSTRS suffered actual damages (the "Damages"), direct or indirect (by
virtue of its direct or indirect interest in the Applicable Entities or
otherwise), by reason of such breach in an amount exceeding the Rep. Basket
and (iii) NYSTRS did not have actual knowledge of such breach on or prior to
the date hereof, then, subject to the next sentence, NYSTRS shall be entitled
to receive an amount equal to the Damages minus the Rep. Basket.
Notwithstanding anything to the contrary contained herein, in no event shall
the Reckson Members' liability for all breaches exceed $7,500,000.00 in the
aggregate (other than for breaches of the representations contained in clauses
(a)(xii) and (xiii) above and paragraph (c) below for which there shall be no
such limitation). Any amounts payable to NYSTRS under this Section 13.01(b)
shall be paid to NYSTRS within 30 days following the entry of a final,
non-appealable order and delivery of a copy thereof to the Reckson Members.
NYSTRS' sole remedy for breach of a representation or warranty contained
herein is to seek damages, subject to the limitations in this paragraph.
Any and all uses of the phrase, "to the NYSTRS Members'
knowledge" or other references to the NYSTRS Members' knowledge in this
Agreement shall mean the actual, present knowledge of John Virtanen, Terri A.
Pandolfi, Andy Zhong, Michael Duignan and Justin M. Murphy (the "NYSTRS
Knowledge Individuals"). Neither the actual, present knowledge of any other
individual or entity, nor the constructive knowledge of the NYSTRS Knowledge
Individuals or of any other individual or entity, shall be imputed to the
NYSTRS Knowledge Individuals.
(c) Each Member hereby represents and warrants (which
representations and warranties shall survive for the applicable statute of
limitations) and shall not be subject to any of the limitations set forth in
paragraph (b) above) to the Unaffiliated Member as of the date hereof that:
(i) It has the requisite corporate or limited liability
company power and authority to enter into and perform the terms of this
Agreement; the execution and delivery of this
-70-
Agreement, and the consummation of the transactions contemplated hereby, have
been duly authorized and no other corporate, limited liability company or
other action on the part of such Member or any of its shareholders or members
is necessary in order to permit such Member to consummate the transactions
contemplated hereby. This Agreement constitutes the valid and binding
obligation of such Member, enforceable in accordance with its terms as the
same may be limited, however, by applicable insolvency, bankruptcy or other
laws affecting creditors' rights generally or by general principles of law.
(ii) Neither the execution, delivery or performance by
such Member of this Agreement or the transactions contemplated hereby will
conflict with, or will result in a breach of, or will constitute a default
under, (A) any agreement or instrument by which such Member may be bound or
(B) any legal requirement or any other judgment, statute, rule, law, order,
decree, writ or injunction of any court or governmental authority.
(iii) Other than as set forth herein, no approval,
consent, order or authorization of, or designation, registration or
declaration with, any governmental authority or other third party is required
in connection with the valid execution and delivery of, and compliance with,
this Agreement by the Member and the performance by the Member of the
transactions contemplated hereby which has not heretofore been obtained.
(iv) The tax identification number of such Member is as
set forth by its signature block to this Agreement.
(d) NYSTRS acknowledges that, except as expressly set forth in
this Agreement, neither Reckson Member nor any of its Affiliates has made, and
no such party is liable for or bound in any manner by, any express or implied
warranties, guaranties, promises, statements, inducements, representations or
information pertaining to the Property, the Property Owner, the income,
expenses, operation or tax benefits of any Applicable Entity, the Property,
the status of the Interests or any other matter or thing with respect thereto.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.01 Compliance with LLC Act. Each Member agrees not to take
any action or fail to take any action which, considered alone or in the
aggregate with other actions or events, would result in the termination of the
LLC under the LLC Act (it being understood that there shall be no breach under
this Section 14.01 if a sale of all or substantially all of the LLC Assets
under Section 10.01 causes a dissolution of the LLC under Section 11.01). No
Member shall file for, pursue or seek any partition of any LLC Assets.
14.02 Additional Actions and Documents. Each of the Members
hereby agrees to take or cause to be taken such further actions, to execute,
acknowledge, deliver and file or cause to be executed, acknowledged, delivered
and filed such further documents and instruments, and to use commercially
reasonable efforts to obtain such consents, as may be necessary or as
-71-
may be reasonably requested in order to fully effectuate the purposes, terms
and conditions of this Agreement.
14.03 Notices. All notices, demands, requests, approvals or
other communications which may be or are required to be given, served,
delivered, or sent by any party to any other party pursuant to this Agreement
shall be in writing and shall be (a) mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, (b) sent by
nationally recognized overnight courier, (c) delivered by hand delivery
(including delivery by nationally recognized courier), or (d) transmitted by
facsimile transmission (with a copy simultaneously delivered by one of the
other permitted methods of delivery), addressed as follows:
a) To Metro919:
c/o Reckson Associates
225 Broadhollow Road
CS5341
Melville, New York 11747-0983
Attention: General Counsel
Telephone: (631) 694-6900
Telecopier: (631) 622-6788
with a copy to:
c/o Reckson Associates
1350 Avenue of the Americas
Suite 901
New York, New York 10019
Attention: Philip M. Waterman III
Telephone: (212) 715-6522
Telecopier: (212) 715-6535
and
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10038
Attention: Joshua Mermelstein, Esq.
Telephone: (212) 859-8137
Telecopier: (212) 859-4000
-72-
(b) To MOP:
c/o Reckson Associates
225 Broadhollow Road
CS5341
Melville, New York 11747-0983
Attention: General Counsel
Telephone: (631) 694-6900
Telecopier: (631) 622-6788
with a copy to:
c/o Reckson Associates
1350 Avenue of the Americas
Suite 901
New York, New York 10019
Attention: Philip M. Waterman III
Telephone: (212) 715-6522
Telecopier: (212) 715-6535
and
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10038
Attention: Joshua Mermelstein, Esq.
Telephone: (212) 859-8137
Telecopier: (212) 859-4000
(c) To NYSTRS:
New York State Teachers' Retirement System
10 Corporate Woods Drive
Albany, New York 12211-2395
Attention: John W. Virtanen
Telephone: (518) 447-2751
Telecopier: (518) 447-2766
with a copy to:
JP Morgan Investment Management Inc.
522 Fifth Avenue
New York, New York 10036
Attention: James McLoughlin
Telephone: (212) 837-1236
Telecopier: (212) 837-1774
-73-
and
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Attention: Mark A. Brody, Esq.
Telephone: (212) 574-1364
Telecopier: (212) 480-8421
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served,
delivered or sent. Each notice, demand, request, or communication which shall
be mailed, sent, delivered or transmitted in the manner described above shall
be deemed, given, served or delivered at such time as it is received by the
addressee upon presentation or at such times as delivery is attempted in the
case of any change in address as to which notice was not given to the other
party as required hereunder or in the case of a refusal to accept delivery.
Attorneys may deliver notices on behalf of their clients. Notices shall be
deemed sent or given upon delivery (or refusal by addressee in the case of
hand delivery) if delivered by hand or by electronic facsimile transfer, or
upon deposit with an overnight delivery service or in the United States mail
if sent, respectively, by overnight delivery service or registered or
certified mail. Notices shall be deemed received or delivered upon delivery
(or refusal by addressee) if delivered by hand or by overnight delivery
service or by electronic facsimile transfer, or five (5) days after being sent
by registered or certified mail (unless a signed receipt evidences earlier
delivery).
14.04 Expenses. (a) NYSTRS shall pay all costs of its due
diligence in connection with this transaction. The Reckson Members and NYSTRS
shall each pay its own legal fees and expenses in connection with the
preparation, negotiation and execution of this Agreement. NYSTRS shall be
responsible for paying all costs of title insurance to insure its Interest.
(b) In the event of any dispute which results in legal
proceedings between the Members, all reasonable legal fees, court costs and
disbursements incurred in connection with such action by the party prevailing
in such legal proceedings after a final nonappealable judgment of a court of
competent jurisdiction has been entered shall be paid by the party not
prevailing in such action within 10 days after demand therefor.
14.05 Obligations Are Without Recourse. Notwithstanding
anything to the contrary contained in this Agreement, no recourse shall be had
against any Member, whether by levy or execution or otherwise, for the payment
of any loans or other payments due or for any other claim under this Agreement
or based on the failure of performance or observance of any of the terms and
conditions of this Agreement against such Member, the partners, members or
shareholders of such Member or any predecessor, successor or Affiliate of such
Member or any of their respective assets other than such Member's Interest or
any undistributed Net Ordinary Cash Flow or Net Extraordinary Cash Flow due or
to become due to such Member (collectively, "Undistributed Income") or against
any principal, partner, shareholder, member, controlling person, officer,
director, agent or employee of any of the aforesaid Persons, or board members,
-74-
trustees or beneficiaries of a pension plan, under any rule of law, statute or
constitution, or by the enforcement of any assessment or penalty, or
otherwise, nor shall any of such Persons be personally liable for any
contributions, loans, payments or claims, or liable for any deficiency
judgment based thereon or with respect thereto, it being expressly understood
that the sole remedies of the LLC or any Member with respect to such amounts
and claims shall be against such Interest and such Member's Undistributed
Income, and that all such liability of the aforesaid Persons, except as
expressly provided in this Section 14.05, is expressly waived and released as
a condition of, and as consideration for, the execution of this Agreement;
provided, that nothing contained in this Agreement (including, without
limitation, the provisions of this Section 14.05), (a) shall constitute a
waiver of any obligation of a Member under this Agreement, (b) shall be taken
to prevent recourse to and the enforcement against such Interest and
Undistributed Income for all of the respective liabilities, obligations, and
undertakings of the aforesaid Persons contained in this Agreement, (c) shall
be taken to prevent recourse to and the enforcement against (i) a transferring
Member of its liabilities, obligations and undertakings contained in any
instrument of assignment or indemnity delivered in connection with such
transfer (but such recourse shall be limited to the proceeds received by such
transferring Member in connection with the assignment to the purchasing Member
(or its designee)), (ii) any security delivered by any of the aforesaid
Persons pursuant to this Agreement or (iii) any Recourse Party, to the extent
expressly provided in Articles IX, X and XII, (d) shall be taken to limit or
restrict any action or proceeding against any of the aforesaid Persons which
does not seek damages or a money judgment or does not seek to compel payment
of money (or the performance of obligations which would require the payment of
money) by any of the aforesaid Persons or (e) shall be deemed taken to limit
the liability of any Person for fraud, misappropriation of funds or property,
or intentional destruction of LLC Assets. For the purposes of this Section
14.05, the term "shareholder" shall be deemed to include the shareholders of
any corporation which is a shareholder, principal, member, partner or agent
and the term "partner" shall be deemed to include the partners of any
partnership which is (w) a partner in a partnership, (x) a shareholder in a
corporation, (y) a principal or a member in a limited liability company or (z)
an agent.
14.06 Time of the Essence. Except as otherwise expressly
provided in this Agreement, time shall be of the essence with respect to all
time periods set forth in this Agreement.
14.07 Ownership of LLC Assets. The Interest of each Member
shall be personal property for all purposes. All real and other property owned
by the LLC shall be deemed owned by the LLC as LLC property. No Member,
individually, shall have any direct ownership of such property and title to
such property shall be held in the name of the LLC.
14.08 Status Reports. Recognizing that each Member may find it
necessary from time to time to establish to third parties, such as
accountants, banks, mortgagees (including Goldman), prospective transferees of
its Interest, or the like, the then current status of performance of the LLC
and the Interests, each Member shall, within 10 Business Days following the
written request for the same from an Unaffiliated Member (the "Requesting
Member") (provided that any such written request is not made more than twice
in any 12-month period), furnish a written statement (in recordable form, if
requested) on the status of the following:
-75-
(a) that this Agreement is unmodified and in full force and
effect (or if there have been modifications, that this Agreement is in full
force and effect as modified and stating the modifications);
(b) stating whether or not to the best knowledge of such
certifying Member (i) the Requesting Member in the LLC is in default in
keeping, observing or performing any of the terms contained in this Agreement
and, if in default, specifying each such default (limited to those defaults of
which the certifying Member has knowledge) and (ii) there has occurred an
event that with the passage of time or the giving of notice, or both, would
ripen into a default hereunder on the part of such Requesting Member (limited
to those events of which the certifying Member has knowledge);
(c) stating the amount of Default Loans made by or to such
certifying Member and the amount of accrued but unpaid interest thereon;
(d) stating the Capital Contributions and Percentage Interests
of the Members; and
(e) to the knowledge and belief of the party making such
statement, with respect to any other matters as may be reasonably requested by
the Requesting Member.
Such statement may be relied upon (and shall state that it may be relied upon)
by the Requesting Member and any other Person for whom such statement is
requested, but no such statement shall operate as a waiver as to any default
or other matter as to which the Member executing it did not have actual
knowledge.
14.09 Survival. It is the express intention and agreement of
the Members that all covenants, agreements, statements, representations,
warranties and indemnities made in this Agreement shall survive the execution
and delivery of this Agreement.
14.10 Waivers. Neither the waiver by the LLC or a Member of a
breach of or a default under any of the provisions of this Agreement, nor the
failure of the LLC or a Member, on one or more occasions, to enforce any of
the provisions of this Agreement or to exercise any right, remedy or privilege
hereunder, shall thereafter be construed as a waiver of any subsequent breach
or default of a similar nature, or as a waiver of any such provisions, rights,
remedies or privileges hereunder. Each Member hereby waives the right to trial
by jury in connection with any legal proceeding between the Members with
respect to this Agreement or the LLC.
14.11 Exercise of Rights. No failure or delay on the part of a
Member or the LLC in exercising any right, power or privilege hereunder and no
course of dealing between the Members or between a Member and the LLC shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. Except as
otherwise provided in this Agreement, the rights and remedies herein expressly
provided are cumulative and not exclusive of any other rights or remedies
which a Member or the LLC would otherwise have at law or in equity or
otherwise.
-76-
14.12 Binding Effect. Subject to any provisions hereof
restricting assignment, this Agreement shall be binding upon and shall inure
to the benefit of each of the Members and their respective heirs, devises,
executors, administrators, legal representatives, successors and assigns.
14.13 Limitation on Benefits of this Agreement. It is the
explicit intention of the Members that no Person other than the Members and
the LLC is or shall be entitled to bring any action to enforce any provision
of this Agreement against the Members or the LLC, and that the covenants,
undertakings and agreements set forth in this Agreement shall be solely for
the benefit of, and shall be enforceable only by, the Members (or their
respective successors and assigns as permitted hereunder), and the LLC.
14.14 Severability. The invalidity of any one or more
provisions hereof or of any other agreement or instrument given pursuant to or
in connection with this Agreement shall not affect the remaining portions of
this Agreement or any such other agreement or instrument or any part thereof,
all of which are inserted conditionally on their being held valid in law; and
in the event that one or more of the provisions contained herein or therein
should be invalid, or should operate to render this Agreement or any such
other agreement or instrument invalid, this Agreement and such other
agreements and instruments shall be construed as if such invalid provisions
had not been inserted.
14.15 Amendment Procedure. This Agreement may only be modified
or amended by the unanimous written consent of the Members.
14.16 Entire Agreement. This Agreement and any agreements
executed contemporaneously herewith contain the entire agreement between the
Members with respect to the matters contemplated herein, and supersede all
prior oral or written agreements, commitments or understandings with respect
to the matters provided for herein and therein.
14.17 Headings. Article, Section and subsection headings
contained in this Agreement are inserted for convenience of reference only,
shall not be deemed to be a part of this Agreement for any purpose, and shall
not in any way define or affect the meaning, construction or scope of any of
the provisions hereof.
14.18 Governing Law. This Agreement, the rights and obligations
of the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of Delaware (but not
including the choice of law rules thereof).
14.19 Execution in Counterparts. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required; and it
shall not be necessary that the signatures of, or on behalf of, each party, or
that the signatures of all persons required to bind any party, appear on each
counterpart; but it shall be sufficient that the signature of, or on behalf
of, each party, or that the signatures of the persons required to bind any
party, appear on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in
making proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of, or on behalf of, all of
the parties hereto.
-77-
14.20 Consents and Approvals. No consent or approval requested
of a Member shall be effective unless such consent or approval shall be
delivered by such Member in a written instrument in advance of the action with
respect to which such consent or approval was requested.
14.21 Brokerage. Each party to this Agreement represents and
warrants to each other party to this Agreement that neither it nor its
Affiliates have employed the services of, or dealt with any Person acting as a
broker, investment bank, finder or like agent in connection with this
Agreement or the transactions contemplated hereby other than JP Morgan
Investment Management Inc. The execution and delivery of this Agreement is
conclusive evidence that such party has relied on the foregoing representation
and warranty. Each party to this Agreement shall indemnify and hold each other
party to this Agreement harmless from and against any claim for commissions,
fees or other compensation by any Person who shall claim to have dealt with
such indemnifying party in connection with this Agreement and/or the proposed
transactions contemplated hereby and for any and all costs incurred by such
indemnified party in connection with such claims, including reasonable
attorneys' fees, costs and disbursements and costs incurred in connection with
the enforcement of the foregoing indemnity. NYSTRS shall pay any fee or other
compensation due to J.P. Morgan Investment Management Inc. (collectively,
"Broker") in connection with this Agreement and NYSTRS shall indemnify and
hold the Reckson Members and their Affiliates harmless from and against any
claim for commissions, fees or other compensation by Broker incurred in
connection with this Agreement. The provisions of this Section 14.21 shall
survive the expiration or termination of this Agreement.
14.22 Indemnification. (a) Except as otherwise expressly
provided in Section 4.01(f), the LLC shall indemnify and hold harmless each of
the Members and their respective Affiliates (and, solely with respect to the
Reckson Members, those Affiliates of the Reckson Members that held direct or
indirect interests in the Property immediately preceding the date hereof)
(collectively, the "Indemnitees") from and against any and all claims,
demands, losses, damages, liabilities, lawsuits and other preceding,
judgments, awards, costs and expenses (including reasonable attorneys' fees,
disbursements and court costs) to the extent the same arise directly or
indirectly from the ownership, operation, use, maintenance or management of
the Property or by reason of its acts or omissions which are for or on behalf
of the LLC or the Lower Tier Entities and taken in accordance, or believed in
good faith to be in accordance, with such Member's responsibilities and
obligations under this Agreement; provided, that the foregoing indemnity shall
not apply to the extent the same arise out of or result from the willful
misconduct of, or willful breach of the express terms of this Agreement by
such Indemnitee.
(b) Except in the case of willful misconduct or willful breach
of the express terms of this Agreement by a Member, no Member shall be liable
to any Unaffiliated Member or the LLC for (i) any act or omission performed or
omitted in good faith, (ii) such Member's failure or refusal to perform any
act, except those required by the terms of this Agreement or (iii) the
negligence, dishonesty or bad faith of any agent, consultant or broker of the
LLC selected, engaged or retained in good faith and with reasonable prudence.
(c) The Members shall be entitled to rely on the advice of
counsel or public accountants experienced in the matter at issue and any act
or omission of a Member pursuant to
-78-
such advice shall in no event subject such Member to liability to the LLC or
any Unaffiliated Member.
(d) Without limiting the foregoing provisions of this Section
14.22, in any action brought against a Member pursuant to the LLC Act, the
Member named as a defendant in such suit shall be entitled to be indemnified
to the fullest extent permitted under the LLC Act or any other applicable law
(the "Indemnity Laws") and, to the fullest extent permitted under the
Indemnity Laws, the LLC shall advance any expenses incurred by such defending
Member in defending such action, subject to repayment.
(e) If any claim, action or proceeding is made or brought
against a party (the "indemnified party") and pursuant to which claim, action
or proceeding another (the "indemnifying party") shall be obligated to
indemnify the indemnified party under the terms of Section 4.01(f) or this
Section 14.22, then the indemnifying party at its sole cost and expense, shall
resist or defend such claim, action or proceeding in the indemnified party's
name, if necessary, by such attorneys as the indemnified party shall approve,
which approval shall not be unreasonably withheld (and shall be deemed granted
if such attorney is selected by the indemnifying party's insurer). If any
claim is made against the indemnified party, the indemnified party shall give
notice of the claim to the indemnifying party in order that the indemnifying
party can undertake its obligations pursuant to the first sentence of this
paragraph (e). The indemnifying party may settle any such action involving the
indemnified party on such terms as the indemnifying party determines, but only
if the indemnified party receives a general release from the claimant in the
action. Failure by the indemnified party to notify the indemnifying party of
any claim, action or proceeding shall not affect the indemnifying party's
obligations hereunder unless the failure to notify is prejudicial to the
indemnifying party.
14.23 Business Day Extension. In the event any time period or
any date provided in this Agreement ends or falls on a day other than a
Business Day, then such time period shall be deemed to end and such date shall
be deemed to fall on the next succeeding Business Day, and performance
hereunder may be made on such Business Day with the same force and effect as
if made on such other day.
14.24 Consent to Jurisdiction; Choice of Forum. With respect
to:
(a) any legal proceeding or motion to compel arbitration of
those disputes that are arbitrable under Sections 7.03(f) and (g) and Section
7.04 of this Agreement,
(b) any legal proceeding or motion to enforce or reduce to
judgment an arbitration award rendered in any dispute arising under Sections
7.03(f) and (g) and Section 7.04 of this Agreement, or to enforce such a
judgment, and
(c) any other legal suit, action or proceeding concerning a
non-arbitrable dispute arising under or relating to this Agreement,
each Member (i) irrevocably and unconditionally consents and submits to the
exclusive jurisdiction of the United States District Court for the Southern
District of New York and the
-79-
Supreme Court of the State of New York for New York County, or, in the absence
of subject matter jurisdiction in either court, only then to the jurisdiction
of the New York Court of Claims; (ii) irrevocably and unconditionally agrees
that all claims in respect of matter may be heard and determined in such
courts; and (iii) irrevocably and unconditionally waives any objection it
might now or in the future be able to raise that either the United States
District Court for the Southern District of New York or the Supreme Court of
the State of New York for New York County is an inappropriate venue, an
inconvenient forum, or otherwise not the proper court to resolve such dispute.
Each Member also irrevocably consents to the service of any and all process
issued by any of the aforementioned courts in any such legal suit, action or
proceeding by the mailing of copies of such process by registered or certified
mail, postage prepaid, to such Member at such Member's address for notices as
set forth in Section 14.03. Nothing contained in this Section 14.24 shall
affect the right of a Member to serve process in any other manner permitted by
applicable law.
14.25 No Presumption. This Agreement shall be construed without
regard to any presumption against the party causing this Agreement to be
drafted.
14.26 Confidentiality. Each of the Members represents and
warrants that prior to the date hereof it has not, except with the consent of
the all Unaffiliated Member disclosed any of the terms, conditions,
obligations or matters contained in, or relating to, this Agreement and the
transactions contemplated herein other than to their respective counsel,
accountants and other advisors and their members, partners, managers,
investors and lenders. Each of the Members covenants and agrees (and agrees to
cause its employees, agents, or Affiliates) not to disclose the economic terms
of this Agreement except (i) to any lender providing Mortgage Loan or other
financing to a Lower Tier Entity or the LLC, (ii) to such Member's lenders,
accountants and attorneys, (iii) to any prospective purchaser of its Interest,
so long as such party is bound by a confidentiality agreement on terms which
are substantially similar in all respects to this Section 14.26, (iv) pursuant
to a subpoena or order issued by a court, arbitrator or governmental body,
agency or official, (v) to one or more of its potential investors, (vi)
pursuant to any freedom of information laws, (vii) pursuant to any other
governmental requirements (e.g., securities law requirements) or (viii) with
the prior written consent of all Unaffiliated Members which, with respect to
distributing a press release shall not be unreasonably withheld. To avoid any
ambiguity, NYSTRS recognizes and agrees that the Reckson Members will be
required to file this Agreement with the Securities and Exchange Commission.
In the event that a Member shall receive a request to disclose any of the
terms of this Agreement under a subpoena or order, such Member shall (x)
promptly notify the LLC and all Unaffiliated Members, (y) consult with the LLC
on the advisability of taking steps to resist or narrow such request, and (z)
if disclosure is required or deemed advisable, reasonably cooperate with the
LLC (at no cost to such Member) in any attempt it may make to obtain an order
or other assurance that confidential treatment will be accorded those terms of
this Agreement that are disclosed.
14.27 Lender's Rights. For the avoidance of doubt, the parties
confirm that, in connection with any Mortgage Loan granted with respect to the
Property, the mortgagee may foreclose on its collateral free and clear of any
rights under Articles IX or X on the part of the Members under this Agreement
and Managing Member may (on behalf of the LLC) execute and
-80-
deliver any documentation reasonably required by an actual or prospective
mortgagee with respect to the foregoing.
14.28 Lower Tier Actions. The parties hereto acknowledge that
corporate, partnership and limited liability company formalities shall be
recognized in connection with the operation of the Applicable Entities.
Accordingly, all actions of the Lower Tier Entities caused by Managing Member
shall be effectuated as follows: with respect to (a) the Property Owner, by
Managing Member causing the LLC (as the sole member of MM LLC) to cause MM LLC
to cause (in MM LLC's capacity as the managing member of the Property Owner)
the Property Owner to act; (b) MM LLC, by causing the LLC (as the sole member
of MM LLC) to cause MM LLC to act and (c) Third Avenue LLC, by causing the LLC
(as the managing member of Third Avenue LLC) to cause Third Avenue LLC to act.
14.29 Art Work. All artwork at the Property as of the date
hereof is, and shall remain, the exclusive property of Affiliates of the
Reckson Members or their Senior Managers and not the property of any
Applicable Entity.
14.30 Signage. The Reckson Members may cause the Property Owner
to place at the Property signs, logos and other items identifying the Property
as "Reckson" or "RA" properties or as properties "managed by Reckson" (or
employing similar nomenclature); provided that the rights of the Reckson
Members set forth above shall terminate in the event a Reckson Member shall be
removed as Managing Member. The parties acknowledge that in the event a
Reckson Member shall be so removed, the replacement Managing Member may not
cause any signage to be placed at the Property identifying the ownership of
the Property (it being agreed that Managing Member may allow customary signage
identifying the name of the Managing Agent to be placed at the Property).
ARTICLE XV
ARBITRATION
a) Any dispute under Sections 7.03(f) or (g) and Section 7.04 of
this Agreement shall be finally settled by arbitration in accordance with the
CPR Institute for Dispute Resolution Rules for Non-Administered Arbitration
(the "CPR"), except as modified herein. The place of arbitration shall be New
York, New York. Either Member may commence arbitration by sending to the other
party a notice of statement of claim of arbitration. Within 5 days after
receipt of the notice of arbitration, the respondent shall deliver to the
claimant a notice of defense. In the event the respondent does not deliver
such a notice, all claims set forth in the demand shall be deemed denied.
(b) The arbitration shall be conducted by a sole arbitrator
jointly appointed by the Members within 10 days of receipt by the respondent
of the notice of arbitration. If the parties have not jointly appointed an
arbitrator by that time, either party may request the CPR to appoint the sole
arbitrator, and the CPR shall endeavor to make the appointment within 5 days
following such request; provided, however, that its failure to meet that
deadline shall in no way impair the effectiveness of the appointment. The CPR
shall endeavor to appoint as arbitrator
-81-
a person with substantial experience in the real estate business, but the
appointee's qualifications or lack of qualifications in this respect shall
under no circumstances impair the effectiveness of the appointment or provide
cause for challenge. The CPR shall have no obligation to follow the procedures
set forth in Rule 6 of the CPR, but shall instead appoint a person whom it
deems qualified to serve.
(c) The arbitrator shall have authority to take all steps
necessary and appropriate in order to hold a hearing within 40 days of his or
her appointment and to render an award within 5 days thereafter. The
arbitrator shall have full discretion to set the procedure or modify the rules
governing the arbitration in any way he or she deems necessary in order to
meet those deadlines; provided, however, that failure to meet those deadlines
shall in no way affect the validity or effectiveness of the award.
(d) The arbitration and this clause shall be governed by Title
9 (Arbitration) of the United States Code, the decision of the arbitration
shall be final and unappealable and judgment on the award may be entered by
any court of competent jurisdiction. The parties herewith consent to
jurisdiction in the federal and state courts located in the county of New
York, New York, for the purpose of enforcing the award.
(e) Each Member is required to continue to perform its
obligations under this Agreement pending final resolution of any dispute
arising out of relating to this Agreement, unless to do so would be impossible
or impracticable under the circumstances.
ARTICLE XVI
919 MEMBER LLC
The Reckson Members covenant that no amendments or
modifications shall be made to the 919 Member LLC Agreement without the
consent of the NYSTRS Members, such consent not to be unreasonably withheld or
delayed. Furthermore, promptly following a request therefor, the Reckson Group
Agent shall deliver to the NYSTRS Group Agent (i) a statement to the effect
that to the actual knowledge of the Reckson Members no defaults exist by any
member of 919 Member LLC under the 919 Member LLC Agreement, or if such
defaults exists, describing such defaults and copies of any notices given or
received by the members of 919 Member LLC asserting any defaults under the 919
Member LLC Agreement which remain after any applicable cure periods and (ii)
such other information reasonably requested by the NYSTRS Members in
connection with 919 Member LLC. In addition the foregoing, at the time of
delivery of any notice delivered by a Reckson Member initiating any
transaction under Articles IX or X above with respect to which NYSTRS would
have a right to acquire any direct or indirect interest in the Property or any
Applicable Entity, the Reckson Group Agent shall provide the NYSTRS Group
Agent with the items described in clause (i) above and no such notice shall be
effective unless accompanied by such items.
-82-
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed on their behalf as of the day and year first above
written.
METROPOLITAN 919 MANAGER LLC, a Delaware
limited liability company
By: Metropolitan Operating Partnership, L.P., a
Delaware limited partnership and its Managing
Member
By: Metropolitan Partners LLC, a Delaware
limited liability company and its general
partner
By: /s/ Jason Barnett
-----------------------------------
Name:
Title:
Tax ID No.: 11-3570535
METROPOLITAN OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership
By: Metropolitan Partners LLC, a Delaware limited
liability company and its general partner
By: /s/ Jason Barnett
-----------------------------------
Name:
Title:
Tax ID No.: 11-3449961
-83-
NEW YORK STATE TEACHERS'
RETIREMENT SYSTEM
By: /s/ John W. Virtanen
---------------------------------
Name:
Title:
By: /s/ Wayne Schneider
---------------------------------
Name: Wayne Schneider
Title: General Counsel
Tax ID No.: 14-6000735
FOR PURPOSES OF ACKNOWLEDGING STATUS AS INITIAL RECOURSE PARTY:
METROPOLITAN OPERATING
PARTNERSHIP, L.P., a Delaware limited
partnership
By: Metropolitan Partners LLC, a Delaware
limited liability company and its
general partner
By: /s/ Jason Barnett
---------------------------------
Name:
Title:
Tax ID No.: 11-3449961
NEW YORK STATE TEACHERS'
RETIREMENT SYSTEM
By: /s/ John W. Virtanen
-------------------------------
Name:
Title:
By: /s/ Wayne Schneider
-------------------------------
Name: Wayne Schneider
Title: General Counsel
Tax ID No.: 14-6000735