SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): December 18, 1998
(December 7, 1998)
TOWER REALTY TRUST, INC.
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(Exact name of registrant as specified in its charter)
Maryland I-13375 13-3938558
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(State or other (Commission File Number) (I.R.S. Employer
jurisdiction of Identification No.)
incorporation)
292 Madison Avenue
3rd Floor
New York, New York 10017
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(Address of principal executive offices) (Zip Code)
(212) 448-1864
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(Registrant's telephone number, including area code)
N/A
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(Former name or former address, if changed since last report)
Item 5. Other Events.
On December 8, 1998, Tower Realty Trust, Inc., a Maryland
corporation (the "Company"), Metropolitan Partners LLC, a Delaware limited
liability company ("Buyer"), Reckson Associates Realty Corp., a Maryland
corporation ("Reckson"), and Reckson Operating Partnership, L.P., a
Delaware limited partnership ("Reckson OP"), entered into an Agreement and
Plan of Merger (the "Merger Agreement"), a copy of which is filed herewith
as Exhibit 10.1 and incorporated herein by reference, providing for the
merger of the Company with and into Buyer (the "Merger"). Pursuant to the
Merger Agreement and upon the terms and subject to the conditions and
limitations therein, each issued and outstanding share of common stock, par
value $.01 per share, of the Company (the "Company Common Stock") shall at
the time the Merger becomes effective be converted into (A) at the election
of the holders thereof either (x) either (1) .5725 of a share of class B
exchangeable common stock, par value $.01 per share, of Reckson, having
substantially the terms and designations set forth in the form of articles
supplementary attached as an exhibit to the Merger Agreement (the "Reckson
Class B Stock") and $7.2565 principal amount of 7% senior unsecured notes
due 2009 of Reckson OP (the "Notes"), guaranteed by Reckson issued under
and governed by an indenture substantially in the form attached as an
exhibit to the Merger Agreement (the "Indenture"), if the Share Issuance
Approval (as defined hereafter) is not obtained, or (2) .8364 of a share of
Reckson Class B Stock if the Share Issuance Approval is obtained or (y) the
right to receive $23 in cash payable to the holder thereof, without
interest, in each case subject to the proration provisions set forth in the
Merger Agreement and (B) if the Share Issuance Approval has not been
obtained and there has occurred an Adverse Recommendation Event (as defined
hereafter), in addition to the consideration set forth in (x)(1) or (y)
above, an additional $.8046 principal amount of Notes. As used herein, the
"Share Issuance Approval" is defined as the approval by a majority of votes
cast at the special meeting of the stockholders of Reckson to approve the
issuance of only Reckson Class B Stock as the non-cash portion of the
merger consideration (the "Share Issuance"); provided that the total votes
cast on the Share Issuance represents over 50% in interest of all
securities of Reckson entitled to vote on the Share Issuance. As used
herein, an "Adverse Recommendation Event" shall be deemed to have occurred
if the Board of Directors of Reckson withdraws or amends or modifies in any
material respect (or publicly announces an intention to withdraw or amend
or modify in any material respect) its approval or recommendation of the
Share Issuance.
In connection with the Merger, the Company, Reckson, Buyer and
Crescent Real Estate Equities Company ("Crescent") delivered to each other
certain releases (the "Releases") of certain claims, including the pending
litigation entitled Tower Realty Trust, Inc. v. Reckson Associates Realty
Corp., et al., Index No. 6053181/98, Supreme Court of the State of New York
in the County of New York. Copies of the Releases are attached hereto as
Exhibits 10.2, 10.3, 10.4, 10.5, 10.6 and 10.7, and are incorporated herein
by reference.
In connection with the Merger, the Company and Buyer entered into
a Stock Purchase Agreement dated as of December 8, 1998 and attached hereto
as Exhibit 10.8 and incorporated herein by reference (the "Stock Purchase
Agreement"), providing for the purchase by Buyer of 2,169,197 shares of
series A convertible preferred stock, par value $.01 per share (liquidation
preference $18.44 per share), of the Company ("Series A Preferred Stock")
with the terms and designations set forth in the Articles Supplementary of
the Company attached hereto as Exhibit 10.9 and incorporated herein by
reference (the "Company Articles Supplementary"). In connection with the
Stock Purchase Agreement and sale of the Series A Preferred Stock to Buyer,
the Company and Buyer entered into a Registration Rights Agreement, dated
as of December 8, 1998 and attached hereto as Exhibit 10.10 and
incorporated herein by reference (the "Registration Rights Agreement"),
providing Buyer with certain registration rights with respect to the shares
of Series A Preferred Stock purchased from the Company and the shares of
Company Common Stock issuable upon conversion of the Series A Preferred
Stock.
The closing of the Merger is subject to certain customary
conditions, including the approval of the Merger by the stockholders of the
Company, and is expected to close during the first half of 1999.
On December 7, 1998, the Company issued a press release and on
December 8, 1998, the Company, Reckson and Crescent issued a joint press
release (the "Press Releases") relating to the Merger, copies of which are
filed herewith as Exhibits 99.1 and 99.2, respectively, and incorporated
herein by reference.
This Current Report on Form 8-K and the Press Releases contain
"forward looking statements" within the meaning of the safe harbor
provisions of the Private Securities Litigation Reform Act of 1995 and are
qualified by cautionary statements contained herein, including the fact
that the Merger is subject to certain conditions and therefore may not
close when anticipated or at all, and in the Company's filings with the
Securities and Exchange Commission.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit 10.1 - Agreement and Plan of Merger, dated as of
December 8, 1998, by and among Tower Realty
Trust, Inc., Reckson Associates Realty Corp.,
Reckson Operating Partnership, L.P. and
Metropolitan Partners LLC (including
exhibits).
Exhibit 10.2 - Release from Reckson Associates Realty Corp.
to Tower Realty Trust, Inc. dated as of
December 8, 1998.
Exhibit 10.3 - Release from Tower Realty Trust, Inc. to
Reckson Associates Realty Corp. dated as of
December 8, 1998.
Exhibit 10.4 - Release from Crescent Real Estate Equities
Company to Tower Realty Trust, Inc. dated as of
December 8, 1998.
Exhibit 10.5 - Release from Tower Realty Trust, Inc. to
Crescent Real Estate Equities Company dated
as of December 8, 1998.
Exhibit 10.6 - Release from Metropolitan Partners LLC to
Tower Realty Trust, Inc. dated as of
December 8, 1998.
Exhibit 10.7 - Release from Tower Realty Trust, Inc. to
Metropolitan Partners LLC dated as of December
8, 1998.
Exhibit 10.8 - Stock Purchase Agreement, dated as of
December 8, 1998, by and between Tower Realty
Trust, Inc. and Metropolitan Partners LLC.
Exhibit 10.9 - Articles Supplementary of Tower Realty Trust,
Inc., dated as of December 8, 1998.
Exhibit 10.10 - Registration Rights Agreement, dated as of
December 8, 1998, by and between Tower Realty
Trust, Inc. and Metropolitan Partners LLC.
Exhibit 99.1 - Press Release of Tower Realty Trust, Inc.,
dated December 7, 1998.
Exhibit 99.2 - Joint Press Release of Tower Realty Trust,
Inc., Reckson Associates Realty Corp. and
Crescent Real Estate Equities Company, dated
December 8, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned, hereunto duly authorized.
Tower Realty Trust, Inc.
By: /s/ Lester S. Garfinkel
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Chief Financial Officer and
Executive Vice President for
Finance & Administration
Dated: December 18, 1998
EXHIBIT INDEX
Exhibit No. Description
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Exhibit 10.1 - Agreement and Plan of Merger, dated as of
December 8, 1998, by and among Tower Realty
Trust, Inc., Reckson Associates Realty Corp.,
Reckson Operating Partnership, L.P. and
Metropolitan Partners LLC (including
exhibits).
Exhibit 10.2 - Release from Reckson Associates Realty Corp.
to Tower Realty Trust, Inc. dated as of
December 8, 1998.
Exhibit 10.3 - Release from Tower Realty Trust, Inc. to
Reckson Associates Realty Corp. dated as of
December 8, 1998.
Exhibit 10.4 - Release from Crescent Real Estate Equities
Company to Tower Realty Trust, Inc. dated as of
December 8, 1998.
Exhibit 10.5 - Release from Tower Realty Trust, Inc. to
Crescent Real Estate Equities Company dated
as of December 8, 1998.
Exhibit 10.6 - Release from Metropolitan Partners LLC to
Tower Realty Trust, Inc. dated as of
December 8, 1998.
Exhibit 10.7 - Release from Tower Realty Trust, Inc. to
Metropolitan Partners LLC dated as of December
8, 1998.
Exhibit 10.8 - Stock Purchase Agreement, dated as of
December 8, 1998, by and between Tower Realty
Trust, Inc. and Metropolitan Partners LLC.
Exhibit 10.9 - Articles Supplementary of Tower Realty Trust,
Inc., dated as of December 8, 1998.
Exhibit 10.10 - Registration Rights Agreement, dated as of
December 8, 1998, by and between Tower Realty
Trust, Inc. and Metropolitan Partners LLC.
Exhibit 99.1 - Press Release of Tower Realty Trust, Inc.,
dated December 7, 1998.
Exhibit 99.2 - Joint Press Release of Tower Realty Trust,
Inc., Reckson Associates Realty Corp. and
Crescent Real Estate Equities Company, dated
December 8, 1998.
EXHIBIT 10.1
AGREEMENT AND PLAN OF MERGER
by and among
TOWER REALTY TRUST, INC.,
RECKSON ASSOCIATES REALTY CORP.,
RECKSON OPERATING PARTNERSHIP, L.P.
and
METROPOLITAN PARTNERS LLC
Dated as of December 8, 1998
TABLE OF CONTENTS
PAGE
ARTICLE I
THE MERGER
SECTION 1.1 The Merger . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.2 Effect on Shares of Company Common Stock and
Company OP Units . . . . . . . . . . . . . . . . . . . . .
SECTION 1.3 Share Election . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.4 Proration . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.5 Exchange of Certificates . . . . . . . . . . . . . . . . . .
SECTION 1.6 Transfer Taxes; Withholding . . . . . . . . . . . . . . . .
SECTION 1.7 No Further Ownership Rights in Shares of
Company Common Stock . . . . . . . . . . . . . . . . . . .
SECTION 1.8 Closing of Transfer Books and Records . . . . . . . . . . .
SECTION 1.9 Stock Options . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.10 Restricted Stock . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.11 [Intentionally Omitted] . . . . . . . . . . . . . . . . . .
SECTION 1.12 Closing . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE II
THE SURVIVING ENTITY
SECTION 2.1 Certificate of Formation . . . . . . . . . . . . . . . . . .
SECTION 2.2 Operating Agreement . . . . . . . . . . . . . . . . . . . .
SECTION 2.3 Members and Managers . . . . . . . . . . . . . . . . . . . .
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 3.1 Corporate Existence and Power. . . . . . . . . . . . . . . .
SECTION 3.2 Corporate Authorization . . . . . . . . . . . . . . . . . .
SECTION 3.3 Consents and Approvals; No Violations . . . . . . . . . . .
SECTION 3.4 Capitalization . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.5 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.6 SEC Documents . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.7 Financial Statements . . . . . . . . . . . . . . . . . . . .
SECTION 3.8 [Intentionally Omitted] . . . . . . . . . . . . . . . . . .
SECTION 3.9 Joint Proxy Statement; Form S-4 Registration Statement;
Other Information . . . . . . . . . . . . . . . . . . . .
SECTION 3.10 Absence of Material Adverse Changes, etc. . . . . . . . . .
SECTION 3.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.12 Material Contracts. . . . . . . . . . . . . . . . . . . . .
SECTION 3.13 [Intentionally Omitted] . . . . . . . . . . . . . . . . . .
SECTION 3.14 [Intentionally Omitted] . . . . . . . . . . . . . . . . . .
SECTION 3.15 [Intentionally Omitted] . . . . . . . . . . . . . . . . . .
SECTION 3.16 [Intentionally Omitted] . . . . . . . . . . . . . . . . . .
SECTION 3.17 [Intentionally Omitted] . . . . . . . . . . . . . . . . . .
SECTION 3.18 Finders' Fees . . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.19 Opinion of Financial Advisors . . . . . . . . . . . . . . .
SECTION 3.20 Board Recommendation . . . . . . . . . . . . . . . . . . . .
SECTION 3.21 Vote Required; No Appraisal Rights . . . . . . . . . . . . .
SECTION 3.22 [Intentionally Omitted] . . . . . . . . . . . . . . . . . .
SECTION 3.23 Investment Company Act of 1940 . . . . . . . . . . . . . . .
SECTION 3.24 Hart-Scott-Rodino Antitrust Improvements Act of 1976 . . . .
SECTION 3.25 State Takeover Statutes . . . . . . . . . . . . . . . . . .
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF RECKSON,
RECKSON OP AND BUYER
SECTION 4.1 Corporate Existence and Power . . . . . . . . . . . . . . .
SECTION 4.2 Authorization. . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.3 Consents and Approvals; No Violations . . . . . . . . . . .
SECTION 4.4 Capitalization. . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.5 SEC Documents. . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.6 Financial Statements. . . . . . . . . . . . . . . . . . . .
SECTION 4.7 [Intentionally Omitted] . . . . . . . . . . . . . . . . . .
SECTION 4.8 Joint Proxy Statement; Form S-4 Registration Statement;
Other Information . . . . . . . . . . . . . . . . . . . .
SECTION 4.9 Absence of Material Adverse Changes, etc. . . . . . . . . .
SECTION 4.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.11 Compliance with Laws . . . . . . . . . . . . . . . . . . . .
SECTION 4.12 Environmental Matters. . . . . . . . . . . . . . . . . . . .
SECTION 4.13 Real Property. . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.14 Litigation . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.15 Finders' Fees . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.16 Share Ownership; Other Ownership . . . . . . . . . . . . . .
SECTION 4.17 Investment Company Act of 1940 . . . . . . . . . . . . . . .
SECTION 4.18 Hart-Scott-Rodino Antitrust Improvements Act of 1976 . . . .
SECTION 4.19 Financing. . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.20 Authorization for Class B Stock. . . . . . . . . . . . . . .
SECTION 4.21 Board Recommendation . . . . . . . . . . . . . . . . . . . .
SECTION 4.22 Required Vote of Reckson Stockholders . . . . . . . . . . .
SECTION 4.23 Opinion of Financial Advisor. . . . . . . . . . . . . . . .
SECTION 4.24 Buyer's Operations. . . . . . . . . . . . . . . . . . . . .
SECTION 4.25 Surviving Entity After the Merger. . . . . . . . . . . . . .
SECTION 4.26 Reckson and Buyer Knowledge. . . . . . . . . . . . . . . . .
ARTICLE V
COVENANTS
SECTION 5.1 Conduct of the Company . . . . . . . . . . . . . . . . . . .
SECTION 5.2 Conduct of Reckson. . . . . . . . . . . . . . . . . . . . .
SECTION 5.3 Stockholders' Meetings; Joint Proxy Material . . . . . . . .
SECTION 5.4 No Solicitation of Transactions by the Company. . . . . . .
SECTION 5.5 Access to Information; Confidentiality Agreement . . . . . .
SECTION 5.6 Voting of Shares of Company Preferred Stock . . . . . . . .
SECTION 5.7 Director and Officer Liability . . . . . . . . . . . . . . .
SECTION 5.8 Reasonable Best Efforts; Cooperation . . . . . . . . . . . .
SECTION 5.9 Certain Filings . . . . . . . . . . . . . . . . . . . . . .
SECTION 5.10 [Intentionally Omitted] . . . . . . . . . . . . . . . . . .
SECTION 5.11 Public Announcements . . . . . . . . . . . . . . . . . . . .
SECTION 5.12 Further Assurances . . . . . . . . . . . . . . . . . . . . .
SECTION 5.13 Employee Matters. . . . . . . . . . . . . . . . . . . . . .
SECTION 5.14 Transfer Taxes . . . . . . . . . . . . . . . . . . . . . . .
SECTION 5.15 Advice of Changes . . . . . . . . . . . . . . . . . . . . .
SECTION 5.16 Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 5.17 Form S-4 Registration Statement . . . . . . . . . . . . . .
SECTION 5.18 Blue Sky Permits . . . . . . . . . . . . . . . . . . . . . .
SECTION 5.19 Listing . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 5.20 Affiliates . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VI
CONDITIONS TO THE MERGER
SECTION 6.1 Conditions to Each Party's Obligations . . . . . . . . . . .
SECTION 6.2 Conditions to the Company's Obligations . . . . . . . . . .
SECTION 6.3 Conditions to Obligations of Reckson and Buyer . . . . . . .
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.2 Effect of Termination . . . . . . . . . . . . . . . . . . .
SECTION 7.3 Fees and Expenses . . . . . . . . . . . . . . . . . . . . .
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 8.2 Survival of Representations and Warranties . . . . . . . . .
SECTION 8.3 Interpretation . . . . . . . . . . . . . . . . . . . . . . .
SECTION 8.4 Amendments, Modification and Waiver . . . . . . . . . . . .
SECTION 8.5 Successors and Assigns . . . . . . . . . . . . . . . . . . .
SECTION 8.6 Specific Performance . . . . . . . . . . . . . . . . . . . .
SECTION 8.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . .
SECTION 8.8 Severability . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 8.9 Third Party Beneficiaries . . . . . . . . . . . . . . . . .
SECTION 8.10 Entire Agreement . . . . . . . . . . . . . . . . . . . . . .
SECTION 8.11 Counterparts; Effectiveness . . . . . . . . . . . . . . . .
SECTION 8.12 Litigation Trust; CPRs . . . . . . . . . . . . . . . . . . .
Exhibits
Exhibit A Form of Reckson's Articles Supplementary
Exhibit B-1 Form of Indenture
Exhibit B-2 Form of Resolution
TABLE OF DEFINED TERMS
TERM PAGE NO.
1940 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1997 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Access Limitation Date . . . . . . . . . . . . . . . . . . . . . . . . . .
Active Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Adverse Recommendation Event . . . . . . . . . . . . . . . . . . . . . . .
affiliate(s) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Amended Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Applicable Break-Up Fee . . . . . . . . . . . . . . . . . . . . . . . . . .
Articles of Incorporation . . . . . . . . . . . . . . . . . . . . . . . . .
Articles of Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . .
associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Base Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Break-Up Fee Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Buyer OP Unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Buyer Operating Partnership . . . . . . . . . . . . . . . . . . . . . . . .
Buying Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Cash Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Cash Election Shares . . . . . . . . . . . . . . . . . . . . . . . . . . .
Cash Proration Factor . . . . . . . . . . . . . . . . . . . . . . . . . . .
Certificate of Merger . . . . . . . . . . . . . . . . . . . . . . . . . . .
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chairman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Class B Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Class B Stock Number . . . . . . . . . . . . . . . . . . . . . . . . . . .
Cleanup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Acquisition Agreements . . . . . . . . . . . . . . . . . . . . . .
Company Acquisition Proposal . . . . . . . . . . . . . . . . . . . . . . .
Company By-laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Disclosure Schedule . . . . . . . . . . . . . . . . . . . . . . . .
Company Joint Ventures . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Leased Real Property . . . . . . . . . . . . . . . . . . . . . . .
Company Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company OP Cash Election . . . . . . . . . . . . . . . . . . . . . . . . .
Company OP Cash Election Units . . . . . . . . . . . . . . . . . . . . . .
Company OP Unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Operating Partnership . . . . . . . . . . . . . . . . . . . . . . .
Company Operating Partnership Agreement . . . . . . . . . . . . . . . . . .
Company Owned Real Property . . . . . . . . . . . . . . . . . . . . . . . .
Company Permitted Liens . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company SEC Documents . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Space Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . .
Company Stock Option . . . . . . . . . . . . . . . . . . . . . . . . . . .
Company's Representatives . . . . . . . . . . . . . . . . . . . . . . . . .
Continuing Employees . . . . . . . . . . . . . . . . . . . . . . . . . . .
Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CPR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Crescent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Crescent Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Deal Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Delaware Secretary of State . . . . . . . . . . . . . . . . . . . . . . . .
DLLCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Election Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Environmental Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ERISA Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Excess Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exchange Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exchange Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Expense Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Form of Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Form S-4 Registration Statement . . . . . . . . . . . . . . . . . . . . . .
Fractional Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Funding Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Governmental Entity . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . .
HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
include . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
includes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
including . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indemnifiable Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indemnitees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Independent Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Initial Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interim Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Joint Proxy Statement . . . . . . . . . . . . . . . . . . . . . . . . . . .
knowledge of the Company . . . . . . . . . . . . . . . . . . . . . . . . .
Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
made available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Maryland Department . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . . . . .
Maximum Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Merger Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . .
Merrill Lynch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Metropolitan Agreement . . . . . . . . . . . . . . . . . . . . . . . . . .
MGCL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
New York Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Non-Cash Proration Factor . . . . . . . . . . . . . . . . . . . . . . . . .
Non-Electing Securities . . . . . . . . . . . . . . . . . . . . . . . . . .
Non-Electing Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Non-Electing Units . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
NYSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
OP Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Outside Termination Date . . . . . . . . . . . . . . . . . . . . . . . . .
Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Qualifying Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
reasonable best efforts . . . . . . . . . . . . . . . . . . . . . . . . . .
Reckson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reckson Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reckson Confidentiality Agreement . . . . . . . . . . . . . . . . . . . . .
Reckson Disclosure Schedule . . . . . . . . . . . . . . . . . . . . . . . .
Reckson Leased Real Property . . . . . . . . . . . . . . . . . . . . . . .
Reckson Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reckson OP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reckson Owned Real Property . . . . . . . . . . . . . . . . . . . . . . . .
Reckson Permitted Liens . . . . . . . . . . . . . . . . . . . . . . . . . .
Reckson Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . .
Reckson Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reckson Rent Roll . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reckson SEC Documents . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reckson Space Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reckson Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . .
REIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
REIT Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Representation Letter . . . . . . . . . . . . . . . . . . . . . . . . . . .
Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Share Issuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Share Issuance Approval . . . . . . . . . . . . . . . . . . . . . . . . . .
Special Dividend . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Standstill Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Stock Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . .
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Surviving Entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tax Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Termination Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tower Articles Supplementary . . . . . . . . . . . . . . . . . . . . . . .
Tower Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .
Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Transfer Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
WARN Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
without limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 8, 1998, by
and among Tower Realty Trust, Inc., a Maryland corporation (the "Company"),
Metropolitan Partners LLC, a Delaware limited liability company ("Buyer"),
Reckson Operating Partnership, L.P., a Delaware limited partnership
("Reckson OP"), and Reckson Associates Realty Corp., a Maryland corporation
("Reckson").
W I T N E S S E T H
WHEREAS, the respective Boards of Directors of the Company, Buyer
and Reckson have each approved this Agreement and the merger of the Company
with and into Buyer (with Buyer being the surviving entity) (the "Merger"),
upon the terms and subject to the conditions set forth herein, and in
accordance with the Maryland General Corporation Law (the "MGCL") and the
Delaware Limited Liability Company Act (the "DLLCA"), whereby each issued
and outstanding share of common stock, par value $.01 per share, of the
Company (the "Company Common Stock") (other than shares owned directly or
indirectly by Buyer, Reckson OP, Reckson, any wholly owned Subsidiary (as
defined in Section 3.5(a) hereof) of Buyer, Reckson or Reckson OP or by the
Company or any wholly owned Subsidiary of the Company immediately prior to
the Effective Time (as defined in Section 1.1(b) hereof)), will, upon the
terms and subject to the conditions and limitations set forth herein, (A)
at the election of the holders thereof either (x) be converted into either
(1) .5725 of a share of class B exchangeable common stock, par value $.01
per share, of Reckson, having substantially the terms and designations set
forth in the form of articles supplementary attached hereto as Exhibit A
(the "Class B Stock") and $7.2565 principal amount of 7% senior unsecured
notes due 2009 of Reckson OP (the "Notes"), guaranteed by Reckson (such
guarantees, the "Guarantees"; unless the context requires otherwise,
references herein to the "Notes" shall include the Guarantees) issued under
and governed by an indenture substantially in the form attached hereto as
Exhibit B-1 (the "Indenture") and by the terms of the resolutions and
officer's certificate, each in the form attached as Exhibit B-2
(collectively, the "Resolution") to be adopted by the Board of Directors of
Reckson, if the Share Issuance Approval (as defined in Section 4.22 hereof)
is not obtained, or (2) .8364 of a share of Class B Stock if the Share
Issuance Approval is obtained or (y) be converted into the right to receive
$23 in cash payable to the holder thereof, without interest, in each case
subject to the proration provisions set forth herein and (B) if the Share
Issuance Approval has not been obtained and there has occurred an Adverse
Recommendation Event(as defined hereafter), in addition to the
consideration set forth in (x)(1) or (y) above, be converted into an
additional $.8046 principal amount of Notes. As used herein, an "Adverse
Recommendation Event" shall be deemed to have occurred if the Board of
Directors of Reckson withdraws or amends or modifies in any material
respect (or publicly announces an intention to withdraw or amend or modify
in any material respect) its approval or recommendation of the Share
Issuance;
WHEREAS, in connection with the Merger, the following additional
transaction will be effected (the Merger, together with the other
documents, agreements and transactions contemplated by this Agreement,
being referred to collectively as the "Transactions"): the parties hereto
shall cause the merger (the "OP Merger") of Tower Realty Operating
Partnership, L.P., a Delaware limited partnership (the "Company Operating
Partnership"), with and into a newly formed entity created by Buyer (which
shall be a direct or indirect Subsidiary of Buyer) ("Buyer Operating
Partnership"), pursuant to which each limited partnership interest (a
"Company OP Unit") in the Company Operating Partnership (other than Company
OP Units owned directly or indirectly by the Company, any wholly owned
Subsidiary of the Company, Reckson OP, Buyer, Reckson or any wholly owned
Subsidiary of Buyer, Reckson or Reckson OP) immediately prior to the
Effective Time, will, upon the terms and subject to the conditions and
limitations set forth herein, (A) at the election of the holders thereof
either (x) be converted into either (1) .5725 of a share of Class B Stock
and $7.2565 principal amount of Notes, if the Share Issuance Approval is
not obtained, or (2) .8364 of a share of Class B Stock if the Share
Issuance Approval is obtained or (y) be converted into the right to receive
$23 in cash payable to the holder thereof, without interest, in each case
subject to the proration provisions set forth herein and (B) if the Share
Issuance Approval has not been obtained and there has occurred an Adverse
Recommendation Event, in addition to the consideration set forth in (x)(1)
or (y) above, be converted into an additional $.8046 principal amount of
Notes;
WHEREAS, as a condition precedent to the execution of this
Agreement, (i) Reckson, Buyer and certain stockholders of the Company have
entered into certain voting agreements whereby each of such stockholders
has agreed to, subject to the terms and conditions of this Agreement, vote
(x) at the Company Special Meeting (as defined in Section 5.3(a) hereof),
the shares of Company Common Stock owned by each in favor of this Agreement
and the Merger and (y) at the Reckson Special Meeting (as defined in
Section 5.3(b) hereof), the shares of common stock, par value $.01 per
share, of Reckson ("Reckson Common Stock") owned by each in favor of the
Share Issuance (as defined in Section 4.21 hereof); and (ii) the Company
and certain stockholders of Reckson have entered into certain voting
agreements whereby each of such stockholders has agreed to, subject to the
terms and conditions of this Agreement, vote (x) at the Reckson Special
Meeting, the shares of Reckson Common Stock owned by each in favor of the
Share Issuance and (y) at the Company Special Meeting, the shares of
Company Common Stock owned by each in favor of this Agreement and the
Merger;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Reckson and the Company are entering into the stock purchase
agreement (the "Stock Purchase Agreement"), providing for the issuance and
sale to Reckson of 2,169,197 shares of preferred stock of the Company (the
"Company Preferred Stock") with the terms and designations set forth in the
articles supplementary of the Company, substantially in the form attached
as Exhibit A to the Stock Purchase Agreement (the "Tower Articles
Supplementary") (the "Initial Sale") and, in connection therewith, Reckson
is executing and delivering that certain representation letter dated the
date of this Agreement (the "Representation Letter");
WHEREAS, concurrently with execution and delivery of this
Agreement, Battle Fowler L.L.P. shall deliver its opinion to Reckson as to
certain matters relating to the qualification of the Company as a real
estate investment trust (a "REIT") under the Internal Revenue Code of 1986,
as amended (the "Code");
WHEREAS, concurrently with execution and delivery of this
Agreement, Brown & Wood LLP shall deliver its opinion to Reckson as to
certain matters relating to the qualification of Reckson as a REIT under
the Code; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and Reckson and the Company and Crescent Real Estate
Equities Company ("Crescent") are entering into certain mutual releases;
provided that if Crescent fails to acquire $85 million of preferred
interests in Buyer prior to the Closing, the foregoing shall be of no force
and effect.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants, agreements and conditions hereafter set forth, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
THE MERGER
SECTION 1.1 The Merger.
(a) Upon the terms and subject to the conditions of this
Agreement, and in accordance with the DLLCA and the MGCL, at the Effective
Time, the Company shall be merged with and into Buyer, whereupon the
separate existence of the Company shall cease, and Buyer shall continue as
the surviving entity (sometimes referred to herein as the "Surviving
Entity") and shall continue to be governed by the laws of the State of
Delaware and shall continue under the name "Metropolitan Partners LLC."
(b) Concurrently with the Closing (as defined in Section 1.12
hereof), the Company and Buyer will cause (i) a certificate of merger or
consolidation (the "Certificate of Merger") with respect to the Merger to
be executed and filed with the Office of the Secretary of State of the
State of Delaware (the "Delaware Secretary of State") pursuant to the DLLCA
and (ii) articles of merger (the "Articles of Merger") with respect to the
Merger to be executed and filed with and accepted for record by the State
Department of Assessment and Taxation of Maryland (the "Maryland
Department") pursuant to the MGCL. The Merger shall become effective on
the date and time at which both the Certificate of Merger and the Articles
of Merger have been duly filed with the Delaware Secretary of State and
accepted for record by the Maryland Department, respectively, or at such
other date and time as is agreed between the parties and specified in the
Certificate of Merger and the Articles of Merger (not to exceed 30 days
after acceptance for record of the Articles of Merger by the Maryland
Department), and such date and time is hereinafter referred to as the
"Effective Time." The OP Merger shall occur at, and be effective as of,
the Effective Time.
(c) From and after the Effective Time, the Surviving Entity
shall possess all the rights, privileges, immunities, powers and franchises
and be subject to all of the obligations, restrictions, disabilities,
liabilities, debts and duties of the Company and Buyer.
SECTION 1.2 Effect on Shares of Company Common Stock and
Company OP Units. At the Effective Time (and by reason of the consummation
of the Merger and the OP Merger):
(a) Conversion of Company Common Stock and Company OP Units.
Except as otherwise provided herein and subject to Section 1.4 hereof, each
share of Company Common Stock and each Company OP Unit issued and
outstanding immediately prior to the Effective Time (other than shares of
Company Common Stock and Company OP Units owned directly or indirectly by
the Company, any wholly owned Subsidiary of the Company, Reckson, Reckson
OP, Buyer or any wholly owned Subsidiary of Buyer, Reckson or Reckson OP)
shall be converted into (A) if the Share Issuance Approval has not been
obtained and there has been an Adverse Recommendation Event, $.8046
principal amount of Notes and (B) the following (collectively, the "Merger
Consideration"):
(i) for each share of Company Common Stock with respect to
which an election to receive cash has been effectively made
pursuant to Section 1.3 hereof and not revoked or lost (a "Cash
Election"), the right to receive in cash an amount equal to $23
(collectively, such shares in respect of which a Cash Election
shall have been made without taking into account the provisions
of Section 1.4 hereof are herein sometimes referred to as "Cash
Election Shares");
(ii) for each share of Company Common Stock other than Cash
Election Shares, either (A) if the Share Issuance Approval has
not been obtained, then $7.2565 principal amount of Notes and
.5725 of a fully paid and nonassessable share of Class B Stock or
(B) if the Share Issuance Approval has been obtained then .8364
of a fully paid and nonassessable share of Class B Stock
(collectively, "Non-Electing Shares");
(iii) for each Company OP Unit with respect to which an
election to receive cash has been effectively made in accordance
with Section 1.3 hereof and not revoked or lost (a "Company OP
Cash Election"), the right to receive in cash an amount equal to
$23 (collectively, such OP Units in respect of which a Company OP
Cash Election shall have been made without taking into account
provisions of Section 1.4 hereof are sometimes referred to as
"Company OP Cash Election Units"); and
(iv) for each Company OP Unit other than Company OP Cash
Election Units, if the Share Issuance Approval has not been
obtained then either (A) $7.2565 principal amount of Notes and
.5725 of a fully paid and nonassessable share of Class B Stock or
(B) if the Share Issuance Approval has been obtained then .8364
of a fully paid and nonassessable share of Class B Stock
(collectively, "Non-Electing Units").
(b) Cancellation of Shares of Company Common Stock Company
Preferred Stock and Company OP Units. As of the Effective Time, each share
of Company Common Stock and each share of Company Preferred Stock owned by
the Company or owned by Buyer, Reckson or any wholly owned Subsidiary of
Buyer, Reckson or the Company immediately prior to the Effective Time shall
automatically be cancelled and retired and cease to exist, and no
consideration or payment shall be delivered therefor or in respect thereto.
All shares of Company Common Stock to be converted into the Merger
Consideration pursuant to this Section 1.2 shall, by virtue of the Merger
and without any action on the part of the holders thereof, cease to be
outstanding, be cancelled and retired and cease to exist; and each holder
of a certificate representing prior to the Effective Time any such shares
of Company Common Stock shall thereafter cease to have any rights with
respect to such shares of Company Common Stock, except the right to receive
(i) the Merger Consideration, (ii) any dividends and other distributions in
accordance with Sections 1.2(c) and 1.5(c) hereof and interest (or other)
payments on the Notes in accordance with Section 1.5(c) hereof and (iii)
any cash to be paid in lieu of any fractional share of Class B Stock or
Notes (in denominations other than multiples of $1,000 (any such
denominations being referred to herein as "Fractional Notes" or a "fraction
of a Note")) in accordance with Section 1.5(d) hereof. As of the Effective
Time, each Company OP Unit owned by the Company, Reckson, Reckson OP, Buyer
or any wholly owned Subsidiary of the Company, Reckson, Reckson OP or Buyer
immediately prior to the Effective Time shall automatically be converted
into a limited partnership interest in Buyer Operating Partnership (a
"Buyer OP Unit"). All Company OP Units converted into Merger Consideration
shall, by virtue of the OP Merger and without any action on the part of the
holders thereof, cease to be outstanding, be cancelled and retired and
cease to exist; and each holder of such Company OP Units prior to the
Effective Time shall thereafter cease to have any rights with respect to
such Company OP Units, except the right to receive (i) the Merger
Consideration, (ii) any dividends and other distributions in accordance
with Sections 1.2(c) and 1.5(c) hereof and interest (or other) payments on
the Notes in accordance with Section 1.5(c) hereof and (iii) any cash to be
paid in lieu of any fractional share of Class B Stock or Fractional Notes
in accordance with Section 1.5(d) hereof and in the case of Company OP
Units owned by the Company, Reckson, Reckson OP, Buyer or any wholly owned
Subsidiary of the Company, Reckson, Reckson OP or Buyer immediately prior
to the Effective Time, the right to receive Buyer OP Units. Company OP
Units not converted into Merger Consideration shall remain outstanding
following the Effective Time.
(c) Company Special Dividend. The Company has the right to
declare and pay a dividend (the "Special Dividend") to its stockholders,
the record date for which shall be the close of business on the last
business day prior to the Closing. The Special Dividend shall be equal to
the Company's most recent regular quarterly dividend rate, multiplied by
the number of days elapsed since the last dividend record date through and
including the Closing and divided by ninety-one (91); provided, however,
that the Special Dividend shall be increased to the extent the Company
reasonably determines that the amount provided in the preceding clause may
not be sufficient for the Company to qualify as a REIT for its taxable year
ended December 31, 1997, December 31, 1998 or its taxable year ended on the
Closing Date; provided, further, that the Special Dividend shall be reduced
to the extent that the Board of Directors of the Company determines to fund
the Trust (as defined in Section 8.12 hereof) pursuant to Section 8.12
hereof. The Special Dividend shall be paid in the ordinary course of
business consistent with past practices of the Company as to the manner and
timing of payment. Concurrently with the Special Dividend, an equivalent
distribution shall be made by the Company Operating Partnership.
(d) None of this Agreement, any merger agreement related to
the OP Merger, or any certificate of merger or similar instrument shall
provide, or be deemed to provide, appraisal rights (contractual or
otherwise) to holders of Company Common Stock or Company OP Units.
SECTION 1.3 Share Election.
(a) Each Person (as defined in Section 1.6 hereof) who, as of
the Election Date referred to in subsection (c) below, is a record holder
of shares of Company Common Stock or a record holder of Company OP Units,
as the case may be, shall have the right to submit a Form of Election (as
defined in Section 1.3(c) hereof) specifying the number of shares of
Company Common Stock or Company OP Units, as the case may be, that such
Person desires to be converted into the right to receive $23 in cash
pursuant to the Cash Election or Company OP Cash Election, as applicable.
(b) Prior to the mailing of the Joint Proxy Statement (as
defined in Section 5.3(c) hereof), Buyer shall designate the Company's
registrar or transfer agent, or such other bank, trust company, Person or
Persons as shall be acceptable to the Company to act as exchange agent (the
"Exchange Agent") for the payment of the Merger Consideration.
(c) Buyer shall prepare and mail a form of election (which shall
include a letter of transmittal), which form shall be subject to the
reasonable approval of the Company (the "Form of Election"), with or at
substantially the same time as the Joint Proxy Statement to the record
holders of shares of Company Common Stock and the record holders of Company
OP Units as of the record date for the Company Special Meeting, which Form
of Election shall be used by each record holder of shares of Company Common
Stock and each record holder of Company OP Units who wishes to elect to
receive cash for any or all shares of Company Common Stock or Company OP
Units, as the case may be, held, subject to the provisions of Section 1.4
hereof, by such holder and, in connection with such election, to surrender
its certificates representing such Company Common Stock. The Form of
Election shall specify that delivery shall be effected, and risk of loss
and title to the Certificates (as defined in Section 1.5 hereof) shall
pass, only upon proper delivery of the Certificates to the Exchange Agent
and which shall be in the form and have such other provisions as Buyer and
the Company may reasonably specify and instructions for making a Cash
Election and for delivering shares of Company Common Stock in connection
with such election. The Form of Election shall contain an undertaking by
the holder of Company OP Units executing such Form of Election that such
holder agrees not to sell, transfer or dispose of any Company OP Units
without first notifying the Exchange Agent that such holder was revoking
its election with respect thereto, it being understood that such revocation
must comply with subsection (d) below. The Company shall use its
reasonable best efforts to make the Form of Election and the Joint Proxy
Statement available to all Persons who become holders of shares of Company
Common Stock during the period between such record date and the Election
Date. Any such holder's election to receive cash shall have been properly
made only if the Exchange Agent shall have received at its designated
office, by 5:00 p.m., New York City time on the business day (the "Election
Date") next preceding the date of the Company Special Meeting, a Form of
Election properly completed and signed (and not revoked) and accompanied by
certificates for the shares of Company Common Stock to which such Form of
Election relates, duly endorsed in blank or otherwise in form acceptable
for transfer on the books of the Company (or by an appropriate guarantee of
delivery of such certificates as set forth in such Form of Election from a
firm which is a member of a registered national securities exchange or of
the New York Stock Exchange (the "NYSE") or a commercial bank or trust
company having an office or correspondent in the United States, provided
such certificates are in fact delivered to the Exchange Agent within five
NYSE trading days after the date of execution of such guarantee of
delivery).
(d) Any Form of Election may be revoked by the stockholder or
unitholder submitting it to the Exchange Agent only by written notice
received by the Exchange Agent prior to 5:00 p.m., New York City time on
the Election Date. In addition, all Forms of Election shall automatically
be revoked if the Exchange Agent is notified in writing by Buyer and the
Company that the Merger has been abandoned. If a Form of Election is
revoked, the certificate or certificates (or guarantees of delivery, as
appropriate) for the share of Company Common Stock, if any, to which such
Form of Election relates shall promptly be returned to the stockholder
submitting the same to the Exchange Agent.
(e) The determination of the Exchange Agent shall be binding as
to whether or not elections have been properly made or revoked pursuant to
this Section 1.3 with respect to shares of Company Common Stock and Company
OP Units and when elections and revocations were received by it. If the
Exchange Agent determines that any Cash Election was not properly made with
respect to shares of Company Common Stock, then such shares of Company
Common Stock shall be treated by the Exchange Agent at the Effective Time
as Non-Electing Shares and such shares shall be exchanged in the Merger for
shares of Class B Stock, or Class B Stock and Notes, as the case may be,
pursuant to Section 1.2(a)(ii) hereof. If the Exchange Agent determines
that any Company OP Cash Election was not properly made with respect to
Company OP Units, then such Company OP Units shall be treated by the
Exchange Agent at the Effective Time as Non-Electing Units, and such units
shall be exchanged for shares of Class B Stock, or for Notes and Class B
Stock, as the case may be, pursuant to 1.2(a)(iv) hereof. The Exchange
Agent shall also make all computations as to the allocation and the
proration contemplated by Section 1.4 hereof, and any such computation
shall be conclusive and binding on the holders of shares of Company Common
Stock and the holders of Company OP Units. The Exchange Agent may, with
the mutual agreement of Buyer and the Company, make such rules as are
consistent with this Section 1.3 for the implementation of the elections
provided for herein as shall be necessary or desirable to effect such
elections fully.
SECTION 1.4 Proration.
(a) Notwithstanding anything in this Agreement to the contrary,
the minimum aggregate number of shares of Company Common Stock and number
of Company OP Units which shall be converted at the Effective Time into
shares of Class B Stock or Notes if the Share Issuance Approval is not
obtained and into shares of Class B Stock if the Share Issuance Approval is
obtained shall be equal to 13,973,024 plus 75% of the number of shares of
Company Common Stock issued pursuant to outstanding Company Stock Options
(as defined in Section 1.9 hereof) after the date of this Agreement (the
"Class B Stock Number").
(b) If the sum of (x) the number of Non-Electing Shares and (y)
the number of Non-Electing Units (such sum, the "Non-Electing Securities")
is less than or equal to the Class B Stock Number, then:
(i) all Non-Electing Securities shall be converted into Notes and
Class B Stock (if the Share Issuance Approval is not obtained), or
Class B Stock (if the Share Issuance Approval is obtained), in
accordance with the terms of Sections 1.2(a)(ii) and 1.2(a)(iv)
hereof; and
(ii) additional shares of Company Common Stock and Company OP Units,
other than Non-Electing Securities, shall be converted into Notes and
Class B Stock (if the Share Issuance Approval is not obtained), or
Class B Stock (if the Share Issuance Approval is obtained), in
accordance with the terms of Section 1.2(a) hereof in the following
manner:
(1) a proration factor (the "Cash Proration Factor") shall
be determined by dividing (x) the difference between
the Class B Stock Number and the Non-Electing
Securities by (y) the sum of (A) the number of Cash
Election Shares and (B) the number of Company OP Cash
Election Units; and
(2) the number of Cash Election Shares and Company OP Cash
Election Units, in addition to Non-Electing Securities,
to be converted into Class B Stock and Notes (if the
Share Issuance Approval is not obtained) or Class B
Stock (if the Share Issuance Approval is obtained)
shall be determined by multiplying the Cash Proration
Factor by the total number of Cash Election Shares and
Company OP Cash Election Units; and
(iii) shares of Company Common Stock and Company OP Units shall be
converted into shares of Class B Stock and Notes (if the Share
Issuance Approval is not obtained) or Class B Stock (if the Share
Issuance Approval is obtained) in accordance with Section
1.4(b)(ii)(2) hereof on a consistent basis among stockholders and
unitholders who held shares of Company Common Stock or Company OP
Units, as the case may be, as to which they made the elections
referred to in Sections 1.2(a)(i) and 1.2(a)(iii) hereof, pro rata
based upon the number of shares of Company Common Stock and number of
Company OP Units as to which such election was made. Holders of
Company Common Stock who made a Cash Election pursuant to Section
1.2(a)(i) hereof and holders of Company OP Units who made a Company OP
Cash Election in accordance with Section 1.2(a)(iii) hereof, but who
receive Class B Stock and/or Notes in accordance with this Section
1.4(b), shall have the portion of their Merger Consideration received
in cash reduced proportionately to account for the receipt of Class B
Stock and/or Notes pursuant to this Section 1.4(b).
(c) If the number of Non-Electing Securities exceeds the Class B
Stock Number, then each Non-Electing Share and each Non-Electing Unit shall
either (x) be converted into Notes and shares of Class B Stock (if the
Share Issuance Approval is not obtained), or shares of Class B Stock (if
the Share Issuance Approval is obtained), or (y) be converted into the
right to receive cash in accordance with the terms of Section 1.2(a) hereof
in the following manner:
(i) A proration factor (the "Non-Cash Proration Factor")
shall be determined by dividing the Class B Stock Number by the total
number of Non-Electing Securities;
(ii) The number of Non-Electing Shares and Non-Electing
Units which are converted into Notes and Class B Stock (if the Share
Issuance Approval is not obtained) or Class B Stock (if the Share
Issuance Approval is obtained) shall be determined by multiplying the
Non-Cash Proration Factor by the number of Non-Electing Securities;
(iii) All Non-Electing Securities, other than those shares
and units which are converted into Notes and Class B Stock (if the
Share Issuance Approval is not obtained) or Class B Stock (if the
Share Issuance Approval is obtained) in accordance with clause (ii) of
this subsection (c), shall be converted into the right to receive cash
on a consistent basis among stockholders and unitholders who did not
make the elections referred to in Sections 1.2(a)(i) and 1.2(a)(iii)
hereof, pro rata based upon the number of shares of Company Common
Stock and number of Company OP Units as to which such election was not
made. Holders of Company Common Stock who did not make a Cash
Election pursuant to Section 1.2(a)(i) hereof and holders of Company
OP Units who did not make a Company OP Cash Election in accordance
with Section 1.2(a)(iii) hereof, but who receive cash in accordance
with this Section 1.4(c), shall have the portion of their Merger
Consideration received in Notes and Class B Stock (if the Share
Issuance Approval is not obtained) or Class B Stock (if the Share
Issuance Approval is obtained) reduced proportionately to account for
the receipt of cash pursuant to this Section 1.4(c).
SECTION 1.5 Exchange of Certificates.
(a) At or promptly following the Effective Time, Buyer shall
deposit, or cause to be deposited with the Exchange Agent for the benefit
of holders of shares of Company Common Stock and Company OP Units, cash and
certificates representing shares of Class B Stock or cash, Notes and
certificates representing the shares of Class B Stock, as the case may be,
constituting the Merger Consideration. For purposes of this Section 1.5,
holders of Company OP Units shall be treated in the same manner as holders
of shares of Company Common Stock, except as provided in the last sentence
of Section 1.5(b) hereof.
(b) As of or promptly after, and in any event not later than
five business days following, the Effective Time, the Surviving Entity
shall cause the Exchange Agent to mail (and to make available for
collection by hand) to each holder of record of a certificate or
certificates, which immediately prior to the Effective Time represented
outstanding shares of Company Common Stock (the "Certificates"), (i) a
letter of transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Certificates shall pass, only upon proper
delivery of the Certificates to the Exchange Agent and which shall be in
the form and have such other provisions as Buyer and the Company may
reasonably specify) and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for (A) a certificate or
certificates representing the number of full shares of Class B Stock and
Notes, if any, into which all or a portion of the number of shares of
Company Common Stock previously represented by such Certificate have been
converted pursuant to this Agreement and (B) the amount of cash, if any,
into which all or a portion of the number of shares of Company Common Stock
previously represented by such Certificate shall have been converted
pursuant to this Agreement (which instructions shall provide that at the
election of the surrendering holder, Certificates may be surrendered, and
the Merger Consideration in exchange therefor collected, by hand delivery).
Upon surrender of a Certificate for cancellation to the Exchange Agent,
together with a letter of transmittal duly completed and validly executed
in accordance with the instructions thereto, and such other documents as
may be required pursuant to such instructions, the holder of such
Certificate shall be entitled to receive in exchange therefor the Merger
Consideration for each share of Company Common Stock formerly represented
by such Certificate, to be mailed (or made available for collection by hand
if so elected by the surrendering holder) within three business days of
receipt thereof (or, in the case of any holders that surrender Certificates
with a Form of Election prior to the calculation of the Cash Proration
Factor and the Non-Cash Proration Factor, three business days after such
calculation), and the Certificate so surrendered shall be forthwith
cancelled. The Exchange Agent shall accept such Certificates upon
compliance with such reasonable terms and conditions as the Exchange Agent
may impose to effect an orderly exchange thereof in accordance with normal
exchange practices. No interest shall be paid or accrued for the benefit
of holders of the Certificates on the Merger Consideration payable upon the
surrender of the Certificates, or for the Merger Consideration deliverable
to the holder of Company OP Units pursuant to the following sentence,
except for interest accruing on the Notes in accordance with their terms.
Immediately following delivery to the Exchange Agent of the Merger
Consideration contemplated by Section 1.5(a) hereof, the Exchange Agent
shall cause to be delivered to the holders of Company OP Units the Merger
Consideration that they are entitled in accordance with this Article I.
(c) No dividends or other distributions with respect to shares
of Class B Stock or interest with respect to the Notes, as the case may be,
with a record date after the Effective Time shall be paid to the holder of
any unsurrendered Certificate with respect to the shares of Class B Stock
and Notes represented thereby or to the holder of any Company OP Units by
reason of the conversion of shares of Company Common Stock and Company OP
Units pursuant to Sections 1.2(a), 1.3 and 1.4 hereof and no cash payment
in lieu of fractional shares or Fractional Notes shall be paid to any such
holder pursuant to Section 1.5(d) hereof until the surrender of such
Certificate in accordance with this Article I or the delivery of the Merger
Consideration to the holders of Company OP Units pursuant to the last
sentence of Section 1.5(b). Subject to the effect of applicable laws,
following surrender of any such Certificate or concurrently with such
delivery, there shall be paid to the Person in whose name the shares of
Class B Stock and Notes are registered (i) at the time of such surrender or
delivery or as promptly after the sale of the Excess Shares or Excess Notes
(as defined in Section 1.5(d) hereof) as practicable, the amount of any
cash payable in lieu of fractional shares of Class B Stock or Fractional
Notes to which such holder is entitled pursuant to Section 1.5(d) hereof
and the amount of dividends or other distributions or interest with a
record date after the Effective Time theretofore paid with respect to such
Class B Stock or Notes issued upon conversion of Company Common Stock and
Company OP Units, and (ii) at the appropriate payment date, the amount of
dividends or other distributions or interest with a record date after the
Effective Time but prior to such surrender and a payment date subsequent to
such surrender payable with respect to such Class B Stock or Notes.
(d) Notwithstanding any other provision of this Agreement, no
fraction of a share of Class B Stock or of a Note shall be issued in
connection with the Merger, and such fractional interest shall not entitle
the owner thereof to vote or to any rights as a security holder of Reckson.
In lieu of any such fractional security, each holder of shares of Company
Common Stock and Company OP Units otherwise entitled to a fraction of a
share of Class B Stock or of a Note will be entitled to receive in
accordance with the provisions of this Section 1.5 from the Exchange Agent,
a cash payment representing such holder's proportionate interest in the net
proceeds from the sale by the Exchange Agent on behalf of all such holders
of the aggregate of the fractions of Class B Stock or Notes, as the case
may be, which would otherwise be issued (respectively, the "Excess Shares"
and the "Excess Notes"). The sale of the Excess Shares by the Exchange
Agent shall be executed on the NYSE through one or more member firms of the
NYSE and shall be executed in round lots to the extent practicable. The
sale of the Excess Notes by the Exchange Agent shall be executed in the
over-the-counter market. Until the net proceeds of such sale or sales have
been distributed to the holders of shares of Company Common Stock and
Company OP Units, the Exchange Agent will, subject to Section 1.5(e)
hereof, hold such proceeds in trust for the holders of shares of Company
Common Stock and Company OP Units. Buyer shall pay all commissions,
transfer taxes and other out-of-pocket transaction costs, including the
expenses and compensation of the Exchange Agent incurred in connection with
such sale of the Excess Shares. As soon as practicable after the
determination of the amount of cash, if any, to be paid to holders of
shares of Company Common Stock and Company OP Units in lieu of any
fractional Class B Stock or Fractional Notes, the Exchange Agent shall make
available such amounts to such holders of shares of Company Common Stock
and Company OP Units.
(e) Any portion of the Merger Consideration deposited with the
Exchange Agent pursuant to this Section 1.5 (the "Exchange Fund") which
remains undistributed to the holders of the Certificates for one year after
the Effective Time shall be delivered to Buyer, upon demand, and any
holders of shares of Company Common Stock prior to the Merger who have not
theretofore complied with this Article I shall (to the extent permitted by
applicable law) thereafter look only to Buyer and only as general creditors
thereof for payment of their claim for (i) cash, if any, (ii) shares of
Class B Stock, if any, (iii) Notes, if any, (iv) any cash in lieu of
fractional shares of Class B Stock and Fractional Notes and (v) any
dividends or distributions with respect to shares of Class B Stock or
interest with respect to Notes to which such holders may be entitled.
(f) None of Buyer, Reckson, the Company or the Exchange Agent
shall be liable to any Person in respect of shares of Class B Stock, Notes
or cash from the Exchange Fund delivered to a public official pursuant to
any applicable abandoned property, escheat or similar law. If any
Certificates shall not have been surrendered prior to one year after the
Effective Time (or immediately prior to such earlier date on which (i) any
cash, (ii) any cash in lieu of fractional shares of Class B Stock or
Fractional Notes, (iii) any shares of Class B Stock or Notes or (iv) any
dividends or distributions with respect to shares of Class B Stock or
interest with respect to Notes in respect of which such Certificate would
otherwise escheat to or become the property of any Governmental Entity (as
defined in Section 3.3(b) hereof)), any such shares of Class B Stock,
Notes, cash, dividends or distributions or interest in respect of such
Certificate shall, to the extent permitted by applicable law, become the
property of Buyer, free and clear of all claims or interest of any Person
previously entitled thereto.
(g) The Exchange Agent shall invest any cash included in the
Exchange Fund, as directed by Buyer on a daily basis. Any interest and
other income resulting from such investments shall be paid to Buyer.
Nothing contained in this Section 1.5(g) shall relieve Buyer, Reckson or
the Exchange Agent from making the payments required by this Article I to
be made to the holders of shares of Company Common Stock and to holders of
Company Stock Options.
SECTION 1.6 Transfer Taxes; Withholding. If the Merger
Consideration is to be paid to a Person other than a Person in whose name
the Certificate surrendered in exchange therefor is registered, it shall be
a condition of such exchange that the Certificate so surrendered in
exchange therefor shall be properly endorsed and otherwise in proper form
for transfer and that the Person requesting such exchange shall pay to the
Exchange Agent any transfer or other Taxes (as defined hereafter) required
by reason of the payment of the Merger Consideration to a Person other than
the registered holder of the Certificate so surrendered, or shall establish
to the satisfaction of the Exchange Agent that such Tax has been paid or is
not applicable. "Person" means any natural person, firm, individual,
corporation, limited liability company, partnership, association, joint
venture, company, business trust, trust or any other entity or
organization, whether incorporated or unincorporated, including a
government or political subdivision or any agency or instrumentality
thereof. For purposes of this Agreement, "Taxes" means all taxes, levies
or other like assessments, charges or fees (including estimated taxes,
charges and fees), including, without limitation, income, corporation,
advance corporation, gross receipts, transfer, excise, property, sales,
use, value-added, license, payroll, withholding, social security and
franchise or other governmental taxes or charges, imposed by the United
States or any state, county, local or foreign government or subdivision or
agency thereof, and such term shall include any interest, penalties or
additions to tax attributable to such taxes.
SECTION 1.7 No Further Ownership Rights in Shares of Company
Common Stock. The Merger Consideration delivered upon the surrender for
exchange of any Certificate in accordance with the terms hereof or
delivered in accordance with the last sentence of Section 1.5(b) hereof
shall be deemed to have been delivered (and paid) in full satisfaction of
all rights pertaining to the shares of Company Common Stock previously
represented by such Certificate or pertaining to Company OP Units, as the
case may be.
SECTION 1.8 Closing of Transfer Books and Records. At the
Effective Time, the stock transfer books of the Company and corresponding
records of the Company Operating Partnership shall be closed, and no
transfer of shares of Company Common Stock or of Company OP Units, as the
case may be, shall thereafter be made. Subject to the last sentence of
Section 1.5(f) hereof, if after the Effective Time Certificates are
presented to the Surviving Entity or the Exchange Agent, they shall be
cancelled and exchanged as provided in this Article I.
SECTION 1.9 Stock Options. Each option to acquire shares of
Company Common Stock ("Company Stock Option") set forth in Schedule 1.9 of
the disclosure schedule of the Company attached hereto (the "Company
Disclosure Schedule") that is outstanding immediately prior to the
Effective Time, whether or not then vested or exercisable, shall, effective
as of the Effective Time, become fully exercisable and vested and each such
Company Stock Option shall, subject to obtaining the required consent, if
any, of each holder of Company Stock Options, be cancelled. In
consideration of such cancellation, the Company shall, subject to reduction
for required withholding taxes, pay to each such holder of Company Stock
Options an amount in cash in respect thereof equal to the product of (1)
the excess, if any, of $23 over the exercise price of such Common Stock
Option and (2) the number of shares of Company Common Stock subject
thereto. The Company's obligations to make such payment to any holder of
Company Stock Options shall be subject to having received the required
consent, if any, of such holder to the cancellation of such Options and the
Company shall use its reasonable best effort to obtain such consents prior
to the Effective Time.
SECTION 1.10 Restricted Stock. All unvested shares of
restricted stock of the Company, set forth in Schedule 1.10 of the Company
Disclosure Schedule, shall, by virtue of this Agreement and without further
action of the Company, Buyer or the holder of such restricted shares, to
the extent required in the plan, agreement or instrument pursuant to which
such restricted stock was granted, vest and become free of all restrictions
immediately prior to the Effective Time and shall be converted into the
Merger Consideration pursuant to Section 1.2 hereof.
SECTION 1.11 [Intentionally Omitted]
SECTION 1.12 Closing. Subject to the satisfaction or waiver of
the conditions set forth in Article VI hereof, the closing of the Merger
(the "Closing") will take place at 10:00 a.m., New York City time, on a
date to be specified by the parties hereto, which shall be no later than
the second business day after the satisfaction of the conditions set forth
in Section 6.1 hereof, at the offices of Skadden, Arps, Slate, Meagher &
Flom LLP, 919 Third Avenue, New York, New York, unless another time, date
or place is agreed to in writing by the parties hereto (such date, the
"Closing Date").
ARTICLE 2
THE SURVIVING ENTITY
SECTION 2.1 Certificate of Formation. The Certificate of
Formation of Buyer shall be the certificate of formation of the Surviving
Entity until thereafter amended in accordance with applicable law.
SECTION 2.2 Operating Agreement. The operating agreement of
Buyer in effect at the Effective Time shall be the operating agreement of
the Surviving Entity until thereafter amended in accordance with applicable
law, the certificate of formation of the Surviving Entity and the operating
agreement of the Surviving Entity.
SECTION 2.3 Members and Managers. From and after the
Effective Time, the members and managers of Buyer at the Effective Time
shall be the initial members and managers of the Surviving Entity, in each
case until their respective successors are duly elected or appointed and
qualified in accordance with applicable law.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as otherwise provided in the letter referred to in Section
5.1(u) hereof, the Company represents and warrants to Buyer as follows:
SECTION 3.1 Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under
the laws of the State of Maryland, and except as set forth in Schedule 3.1
of the Company Disclosure Schedule, has all corporate powers and all
governmental licenses, authorizations, consents and approvals
(collectively, "Licenses") required to carry on its business as now
conducted except for failures to have any such License which would not,
individually or in the aggregate, have a Material Adverse Effect (as
defined hereafter). The Company is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
character of the property owned, leased or operated by it or the nature of
its activities makes such qualification necessary, except for those
jurisdictions where failures to be so qualified would not, in the
aggregate, have a Material Adverse Effect. As used herein, the term
"Material Adverse Effect" means a material adverse effect on the condition
(financial or otherwise), business, assets or results of operations of the
Company and its Subsidiaries or Reckson and its Subsidiaries, as the case
may be, in each case taken as a whole, that is not a result of a decline or
deterioration in the economy in general or the real estate markets in which
such entities operate. The Company has heretofore made available to
Reckson, Reckson OP and Buyer (collectively, the "Buying Entities")
complete and correct copies of its charter and the by-laws of the Company
(the "Articles of Incorporation" and "Company By-laws," respectively) as
currently in effect.
SECTION 3.2 Corporate Authorization. The Company has the
requisite corporate power and authority to execute and deliver this
Agreement and, subject to approval of the Company's stockholders as
contemplated by Section 5.3 hereof, to perform its obligations hereunder.
The execution and delivery of this Agreement and the performance of its
obligations hereunder have been duly and validly authorized by the Board of
Directors of the Company and, other than the approval and adoption of this
Agreement by the requisite vote of the Company's stockholders, no other
corporate proceedings on the part of the Company are necessary to authorize
the execution, delivery and performance of this Agreement. This Agreement
has been duly executed and delivered by the Company and constitutes,
assuming due authorization, execution and delivery of this Agreement by
each of the Buying Entities, a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights and general principles of equity.
SECTION 3.3 Consents and Approvals; No Violations.
(a) Except as set forth in Schedule 3.3(a) of the Company
Disclosure Schedule and assuming the delivery and accuracy of the
Representation Letter, neither the execution and delivery of this Agreement
nor the performance by the Company of its obligations hereunder will
(i) conflict with or result in any breach of any provision of the Articles
of Incorporation or the Company By-laws; (ii) result in a breach or
violation of, a default under, or the triggering of any payment or other
material obligations pursuant to, or except as otherwise contemplated by
Sections 1.9 and 1.10 hereof, accelerate vesting under, any of the Company
stock option or other benefit plans, or any grant or award made under any
of the foregoing; (iii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give
rise to any right of termination, cancellation or acceleration or
obligation to repurchase, repay, redeem or acquire or any similar right or
obligation) or result in the creation of any Lien (as defined in Section
3.5(b) hereof) upon any properties of the Company or any of its
Subsidiaries (other than Company Permitted Liens) under any of the terms,
conditions or provisions of, any note, mortgage, indenture, letter of
credit, other evidence of indebtedness, franchise, permit, guarantee,
license, lease or agreement or similar instrument or obligation to which
the Company or any of its Subsidiaries is a party or by which any of them
or any of their assets may be bound or (iv) assuming that the filings,
registrations, notifications, authorizations, consents and approvals
referred to in subsection (b) below have been obtained or made, as the case
may be, violate any order, injunction, decree, statute, rule or regulation
of any Governmental Entity to which the Company or any of its Subsidiaries
is subject, excluding from the foregoing clauses (ii), (iii) and (iv) such
requirements, defaults, breaches, rights, violations or creations of such
liens, security interests, charges or encumbrances (A) that would not, in
the aggregate, reasonably be expected to have a Material Adverse Effect and
would not reasonably be expected to have a material adverse effect on the
ability of the Company to perform its obligations hereunder or (B) that
become applicable as a result of the business or activities in which any of
the Buying Entities or any of their respective affiliates is or proposes to
be engaged or any acts or omissions by, or facts pertaining to, any of the
Buying Entities.
(b) Except as set forth in Schedule 3.3(b) of the Company
Disclosure Schedule, no filing or registration with, notification to, or
authorization, consent or approval of, any government or any agency, court,
tribunal, commission, board bureau, department, political subdivision or
other instrumentality of any government (including any regulatory or
administrative agency), whether federal, state, multinational (including,
but not limited to, the European Community), provincial, municipal,
domestic or foreign (each, a "Governmental Entity"), is required in
connection with the execution and delivery of this Agreement by the Company
or the performance by the Company of its obligations hereunder, except
(i) the filing of the Certificate of Merger in accordance with the DLLCA
and the Articles of Merger in accordance with the MGCL and filings to
maintain the good standing of the Surviving Entity; (ii) compliance with
any applicable requirements of (A) the Securities Act of 1933 and the rules
and regulations thereunder (the "Securities Act") and the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(the "Exchange Act") and (B) the Trust Indenture Act of 1939, as amended,
and the rules and regulations thereunder (the "TIA"); (iii) compliance with
any applicable requirements of state takeover laws; (iv) any Tax Returns
(as defined in Section 4.10 hereof) that may be required in connection with
the Merger and (v) such other consents, approvals, orders, authorizations,
notifications, registrations, declarations and filings (A) the failure of
which to be obtained or made would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and would not have a material
adverse effect on the ability of the Company to perform its obligations
hereunder or (B) that become applicable as a result of the business or
activities in which any of the Buying Entities or any of their respective
affiliates is or proposes to be engaged or any acts or omissions by, or
facts pertaining to, any of the Buying Entities.
(c) For purposes of this Agreement, "Company Permitted Liens"
means (i) mechanics', carriers', workers', repairers', materialmen's,
warehousemen's and other similar Liens arising or incurred in the ordinary
course of business for sums not yet due and payable and such Liens as are
being contested by the Company in good faith, (ii) Liens arising or
resulting from any action taken by any of the Buying Entities,
(iii) matters that would be disclosed by an accurate survey or inspection
of the Company Real Property (as defined hereafter), (iv) Liens for current
Taxes not yet due or payable, (v) any covenants, conditions, restrictions,
reservations, rights, Liens, easements, encumbrances, encroachments and
other matters affecting title which are shown as exceptions on the
Company's title insurance policies and/or title commitments or reports
which have been made available to the Buying Entities, (vi) any other
covenants, conditions, restrictions, reservations, rights, non-monetary
Liens, easements, encumbrances, encroachments and other matters affecting
title which do not individually or in the aggregate materially adversely
affect the value or use of any of the Company Real Property as it is
presently used, (vii) Company Space Leases (as defined hereafter) and
(viii) matters set forth in Schedule 3.3(c) of the Company Disclosure
Schedule and/or permitted pursuant to Sections 5.1(n), 5.1(r), 5.1(s) or
5.4 hereof. "Company Leases" means the real property leases, subleases,
licenses and use or occupancy agreements pursuant to which the Company or
any of its Active Subsidiaries is the lessee, sublessee, licensee, user or
occupant of Company Real Property, or interests therein. "Company Leased
Real Property" means all interests in real property pursuant to the Company
Leases. "Company Owned Real Property" means the real property owned in fee
by the Company and its Subsidiaries necessary for the conduct of, or
otherwise material to, the business of the Company and its Subsidiaries as
it is currently conducted. "Company Real Property" means the Company Owned
Real Property and the Company Leased Real Property. "Company Space Lease"
means each lease or other right of occupancy affecting or relating to a
property in which the Company or its Subsidiaries (or an entity in which it
directly or indirectly has an interest) is the landlord, either pursuant to
the terms of a lease agreement or as successor to any prior landlord.
SECTION 3.4 Capitalization.
(a) The authorized stock of the Company consists of
150,000,000 shares of Company Common Stock and 50,000,000 shares of
preferred stock, par value $.01 per share, of the Company (the "Tower
Preferred Stock"). As of October 31, 1998, there were (i) 16,958,355
shares of Company Common Stock, no shares of Tower Preferred Stock and
(iii) 18,643,127 Company OP Units issued and outstanding. Except for the
Company Preferred Stock, all shares of stock of the Company and all Company
OP Units have been duly authorized and validly issued and are fully paid
and nonassessable and are free of pre-emptive rights. As of October 31,
1998, there were (i) outstanding Company Stock Options in respect of
1,269,275 shares of Company Common Stock at an option price, in each case,
equal to $26 per share, which Options were granted pursuant to the
Company's 1997 Incentive Plan (the "1997 Plan") and an additional 338,846
shares of Company Common Stock available for future grants pursuant to the
1997 Plan through December 31, 1998, (ii) up to 200,000 shares of Company
Common Stock authorized for possible issuance pursuant to the Company's
1997 Directors' Plan, (iii) no agreements with respect to stock bonuses for
shares of Company Common Stock and (iv) 2,000,000 shares of Company Common
Stock reserved for issuance upon exchange of Company OP Units.
(b) Except (i) as set forth in this Section 3.4, (ii) for
Company OP Units (which, subject to certain restrictions, may be exchanged
by holders thereof for shares of Company Common Stock), (iii) as required
under the Second Amendment and Restatement of Agreement of Limited
Partnership of the Company Operating Partnership, as amended (the "Company
Operating Partnership Agreement"), (iv) for changes since October 31, 1998
resulting from the exercise of Options outstanding on such date, (v) the
Company Preferred Stock issued to Reckson in the Initial Sale and (vi) as
set forth in Schedule 3.4 of the Company Disclosure Schedule, there are
outstanding (A) no shares of stock or other voting securities or
partnership interests of the Company, (B) no securities of the Company or
any Subsidiary of the Company convertible into or exchangeable for shares
of stock or voting securities or partnership interests of the Company and
(C) no options or other rights to acquire from the Company, and no
obligation of the Company to issue, any stock, voting securities or
partnership interests or securities convertible into or exchangeable for
stock or voting securities of the Company (the items in clauses (A), (B)
and (C) being referred to collectively as the "Company Securities").
Except (x) as required pursuant to rights of first refusal or rights of
first offer, "buy-sell" provisions, anti-dilution provisions or pro-rata
funding obligations set forth in the terms of any partnership or joint
venture agreement governing any of the partnerships, joint ventures or
business trusts in which the Company Operating Partnership owns an interest
(collectively, the "Company Joint Ventures") existing on the date of this
Agreement, a list of which is set forth in Schedule 3.4 of the Company
Disclosure Schedule , (y) as set forth in Schedule 3.4 of the Company
Disclosure Schedule and (z) as required under the Company Operating
Partnership Agreement, there are no outstanding obligations of the Company
or any of its Subsidiaries to repurchase, redeem or otherwise acquire any
Company Securities or any stock, voting securities or other ownership
interests in any Subsidiary of the Company or make any material investment
(in the form of a loan, contribution or otherwise) in any Person (other
than a Subsidiary of the Company or a wholly owned Company Joint Venture).
SECTION 3.5 Subsidiaries.
(a) Each Subsidiary of the Company that is actively engaged in
any business or owns any material assets (each, an "Active Subsidiary")
(i) that is a corporation is duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation,
(ii) that is a partnership, limited liability company or trust is duly
organized and validly existing under the laws of its jurisdiction of
organization, (iii) except as set forth in Schedule 3.5(a) of the Company
Disclosure Schedule, has all corporate power and authority to, and all
governmental licenses, authorizations, consents and approvals required to,
carry on its business as now conducted and (iv) is duly qualified or
licensed to do business and is in good standing in each jurisdiction where
the character of the property owned or leased by it or the nature of its
activities makes such qualification or licensing necessary, except for
failures of this representation and warranty to be true which would not, in
the aggregate, have a Material Adverse Effect. For purposes of this
Agreement, "Subsidiary" means with respect to any Person, any corporation,
limited partnership or other entity of which such Person owns, directly or
indirectly, more than 50% of the outstanding voting stock or other equity
interests. All Subsidiaries and their respective jurisdictions of
incorporation are identified in Schedule 3.5(a) of the Company Disclosure
Schedule.
(b) Except as set forth in Schedule 3.5(b) of the Company
Disclosure Schedule, (i) all of the outstanding shares of stock of each
Subsidiary of the Company that is a corporation are duly authorized,
validly issued, fully paid and nonassessable, and such shares are owned by
the Company or by a Subsidiary of the Company (other than directors'
qualifying shares and nominal shares held by other Persons as may be
required by local law) free and clear of any Liens or limitations on voting
rights and (ii) all equity interests in each Subsidiary of the Company that
is a partnership, joint venture, limited liability company or trust are
owned by the Company or by a Subsidiary of the Company, free and clear of
any Liens or limitations on voting rights; provided that no representation
is made as to any shares of stock or other equity interests owned by any
Persons other than the Company. Except as set forth in Schedule 3.5(b) of
the Company Disclosure Schedule, there are no subscriptions, options,
warrants, calls, rights, convertible securities or other agreements or
commitments of any character relating to the issuance, transfer, sale,
delivery, voting or redemption (including any rights of conversion or
exchange under any outstanding security or other instrument) for, any of
the stock or other equity interests of any of such Subsidiaries. Except as
set forth in Schedule 3.5(b) of the Company Disclosure Schedule, there are
no agreements requiring the Company or any of its Subsidiaries to make
contributions to the capital of, or lend or advance funds to, any
Subsidiaries of the Company. For purposes of this Agreement, "Lien" means,
with respect to any asset, any mortgage, deed of trust, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset.
(c) Except for interests in the Subsidiaries and except as
set forth in Schedule 3.5(c) of the Company Disclosure Schedule, neither
the Company nor any of its Subsidiaries owns directly or indirectly any
interest or investment (whether equity or debt) in any corporation,
partnership, joint venture, business, trust or entity (other than
investments in short-term investment securities).
SECTION 3.6 SEC Documents. The Company has timely filed all
required reports, proxy statements, forms and other documents with the
Securities and Exchange Commission (the "SEC") since October 16, 1997 (the
"Company SEC Documents"). As of their respective dates, and giving effect
to any amendments thereto, (i) the Company SEC Documents complied in all
material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be, and the applicable rules and regulations
of the SEC promulgated thereunder and (ii) none of the Company SEC
Documents (except as to the financial statements contained therein, which
are dealt with in Section 3.7 hereof) contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
SECTION 3.7 Financial Statements. The financial statements of
the Company (including, in each case, any notes and schedules thereto)
included in the Company SEC Documents (a) comply as to form in all material
respects with all applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, (b) are in
conformity with generally accepted accounting principles ("GAAP"), applied
on a consistent basis (except in the case of unaudited statements, as
permitted by Form 10-Q as filed with the SEC under the Exchange Act) during
the periods involved (except as may be indicated in the related notes and
schedules thereto) and (c) fairly present, in all material respects, the
consolidated financial position of the Company and its consolidated
Subsidiaries as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (subject, in the case
of unaudited statements, to normal year-end audit adjustments).
SECTION 3.8 [Intentionally Omitted]
SECTION 3.9 Joint Proxy Statement; Form S-4 Registration
Statement; Other Information. None of the information with respect to the
Company or its Subsidiaries to be included in the Joint Proxy Statement or
any amendments thereof or supplements thereto or the Form S-4 Registration
Statement (as defined in Section 5.17 hereof) will, in the case of the
Joint Proxy Statement or any amendments thereof or supplements thereto, at
the time of the mailing of the Joint Proxy Statement or such amendments or
supplements thereto, and at the time of the Company Special Meeting and, if
different, the Reckson Special Meeting, or, in the case of the Form S-4
Registration Statement, at the time it becomes effective, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that no representation is made by the Company with
respect to information related to any of the Buying Entities or any of
their respective affiliates included in the Joint Proxy Statement or the
Form S-4 Registration Statement, as the case may be. The Joint Proxy
Statement and the Form S-4 Registration Statement will each comply as to
form in all material respects with the provisions of the Exchange Act and
the Securities Act, respectively, and the rules and regulations promulgated
under each of such statutes.
SECTION 3.10 Absence of Material Adverse Changes, etc. Except
as disclosed in the Company SEC Documents filed by the Company and as set
forth in Schedule 3.10 of the Company Disclosure Schedule, (i) since
September 30, 1998, the Company and its Subsidiaries have conducted their
business in the ordinary course of business consistent with past practice
and there has not been a Material Adverse Effect and (ii) since September
30, 1998, there has not been:
(a) any declaration, setting aside or payment of any dividend or
other distribution (other than regular quarterly dividends or regular
distributions pursuant to the Company Operating Partnership Agreement (or
as necessary to maintain REIT status)) with respect to the shares of
Company Common Stock or the Company OP Units, or any repurchase, redemption
or other acquisition by the Company or any Subsidiary of the Company of (x)
any outstanding shares of stock or other equity securities of, or other
ownership interests in, the Company or (y) the Company OP Units;
(b) any amendment of any material term of any outstanding
security issued by the Company or any Subsidiary of the Company;
(c) any incurrence, assumption or guarantee by the Company or
any Subsidiary of the Company of any indebtedness for borrowed money other
than in the ordinary course of business which, in any event, does not
exceed $301,960,000 in the aggregate outstanding as of the date of this
Agreement and, of which, no more than $8,000,000 represents an increase in
aggregate outstanding indebtedness as of the date of this Agreement from
that owed or guaranteed by the Company on September 30, 1998;
(d) any creation or assumption by the Company or any Subsidiary
of the Company of any Lien on any asset other than in the ordinary course
of business and other than Liens which, in the aggregate, do not have and
could not reasonably be expected to have a Material Adverse Effect;
(e) any damage, destruction or other casualty loss (whether or
not covered by insurance) affecting the business or assets of the Company
or any Subsidiary of the Company which has had a Material Adverse Effect;
(f) any change in any method of accounting or accounting
practice by the Company or any Subsidiary of the Company, except for any
such change required by reason of a change in GAAP;
(g) except as a result of increases permitted by clause (iv)
below, any (i) grant of any severance or termination pay to any director,
officer or employee of the Company or any Subsidiary of the Company, (ii)
employment, deferred compensation or other similar agreement (or any
amendment to any such existing agreement) with any director, officer or
employee of the Company or any Subsidiary of the Company entered into,
(iii) increase in benefits payable under any existing severance or
termination pay policies or employment agreements or (iv) increase in
compensation, bonus or other benefits payable to directors, officers or
employees of the Company or any Subsidiary of the Company, in each case,
other than in the ordinary course of business, including year-end bonuses
and salary adjustments to the extent set forth in Schedule 5.1(q) of the
Company Disclosure Schedule;
(h) any commitment or contractual obligation relating to any
capital expenditure (each, a "Commitment") entered into by the Company or
any of its Subsidiaries, other than immaterial Commitments in the ordinary
course of business; or
(i) any authorization of, or commitment or agreement to take any
of, the foregoing actions except as otherwise permitted by this Agreement.
SECTION 3.11 Taxes.
(a) The Company has exercised ordinary business care and prudence
(within the meaning of Treasury Regulation section 1.856-7(c)) in
attempting to satisfy the requirements of sections 856(c)(2) and (3) of the
Code to the date hereof, and will continue to exercise such ordinary
business care and prudence, to meet the requirements of sections 856(c)(2)
and (3) of the Code, and if there is any failure of the Company to meet the
requirements of sections 856(c)(2) or (3) of the Code, or of both such
sections, all such failures would be with reasonable cause and none would
be the result of willful neglect (within the meaning of section
856(c)(6)(C) of the Code).
(b) Any incorrect information that is included by the Company in
the schedule referred to in clause (ii) of the last paragraph of Section
5.1 hereof will not be due to fraud with intent to evade Tax.
(c) The Company has delivered to Reckson copies of the federal
and state income tax returns of the Company for its taxable year ending
December 31, 1997 and, if previously filed, its taxable year ending
December 31, 1998, all of which were timely filed with the applicable
taxing authority. Such copies are complete copies of such tax returns as
filed.
(d) The Company has elected to be taxed as a REIT within the
meaning of the Code for its taxable year ending December 31, 1997, and has
not revoked such election.
(e) As of the date of this Agreement, the Company and its
Subsidiaries have not received any written notices of deficiency or
assessment from any taxing authority with respect to Taxes of the Company
or its Subsidiaries for any amount of Taxes that would be material to any
of the Company or its Subsidiaries individually or in the aggregate that
have not been fully paid or finally settled or are being contested in good
faith.
SECTION 3.12 Material Contracts. As of the date of this
Agreement, (i) except as set forth in Schedule 3.12 of the Company
Disclosure Schedule and except for the Revolving Credit Agreement referred
to in clause (ii) below, neither the Company nor any of its Subsidiaries is
in default (nor with notice or lapse of time or both would the Company or
any of its Subsidiaries be in default) under any contract or agreement,
commitment and instrument which is required to be filed as an exhibit to
the Company SEC Documents except for such defaults which, if not cured,
would not in the aggregate reasonably be expected to have a Material
Adverse Effect and (ii) assuming that Reckson has paid the purchase price
payable under the Stock Purchase Agreement and that the Company applies the
proceeds from the Initial Sale as provided in the Stock Purchase Agreement,
there is not currently in existence any Default (as such term is defined in
the Revolving Credit Agreement, dated as of October 20, 1997, among the
Company Operating Partnership, Merrill Lynch and the Banks named therein).
SECTION 3.13 [Intentionally Omitted]
SECTION 3.14 [Intentionally Omitted]
SECTION 3.15 [Intentionally Omitted]
SECTION 3.16 [Intentionally Omitted]
SECTION 3.17 [Intentionally Omitted]
SECTION 3.18 Finders' Fees. Except for Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), there is no investment
banker, broker, finder or other intermediary which has been retained by, or
is authorized to act on behalf of, the Company or any Subsidiary of the
Company that would be entitled to any fee or commission from the Company,
any Subsidiary of the Company, any Buying Entity or any affiliate of any of
the Buying Entities upon consummation of the Transactions.
SECTION 3.19 Opinion of Financial Advisors. The Company has
received the opinion or advice of Merrill Lynch to the effect that, as of
such date, the consideration to be received by holders of shares of Company
Common Stock (other than any Buying Entity or any affiliate of any of the
Buying Entities) pursuant to the Merger is fair from a financial point of
view to such holders. A copy of the written opinion of Merrill Lynch will
be delivered to Reckson as soon as practicable after the date of this
Agreement.
SECTION 3.20 Board Recommendation. The Board of Directors of
the Company, at a meeting duly called and held, has (a) determined that
this Agreement and the Transactions, taken together, are advisable, fair to
and in the best interests of the stockholders of the Company; (b) taken all
actions necessary on the part of the Company to render the restrictions on
business combinations contained in Section 3-602 of the MGCL inapplicable
to this Agreement and the Merger; and (c) resolved to recommend that the
stockholders of the Company approve this Agreement and the Transactions.
SECTION 3.21 Vote Required; No Appraisal Rights.
(a) The affirmative vote of a majority of all of the votes of
Company Common Stock entitled to be cast is the only vote of the holders of
any class or series of the Company's stock necessary or required under this
Agreement or under applicable law to approve the Merger, this Agreement and
the Transactions.
(b) No holder of Company Common Stock or Company OP Units is
entitled to dissenters' rights, appraisal rights or similar rights to "fair
value" in connection with the Merger or the OP Merger, whether under the
MGCL, the DLLCA, or otherwise.
SECTION 3.22 [Intentionally Omitted]
SECTION 3.23 Investment Company Act of 1940. Neither the
Company nor any of its Subsidiaries is, or at the Effective Time will be,
required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
SECTION 3.24 Hart-Scott-Rodino Antitrust Improvements Act of
1976. For purposes of determining compliance with the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), the
Company confirms that the conduct of its business consists solely of
investing in, owning and operating real estate for the benefit of its
stockholders.
SECTION 3.25 State Takeover Statutes. The Company has taken
all action necessary to exempt the transactions contemplated by this
Agreement from the operation of any applicable "fair price," "moratorium,"
"control share acquisition" or any other applicable anti-takeover statute
enacted under the state or federal laws of the United States or similar
statute or regulation.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF RECKSON,
RECKSON OP AND BUYER
Each of Reckson, Reckson OP and Buyer, jointly and severally,
represents and warrants to the Company as follows:
SECTION 4.1 Corporate Existence and Power. Reckson is a
corporation, Buyer is a limited liability company and Reckson OP is a
limited partnership and each is duly organized, validly existing and in
good standing under the laws of the state of Maryland, as to Reckson, and
Delaware, as to Buyer and Reckson OP, and has all power and authority and
Licenses to carry on its business as now conducted except for failures to
have any such License which would not, individually or in the aggregate,
have a Material Adverse Effect. Buyer is a direct or indirect Subsidiary
of Reckson. Each of Reckson, Buyer and Reckson OP has heretofore delivered
to the Company complete and correct copies of its governing documents or
other organizational documents of like import, as currently in effect.
SECTION 4.2 Authorization. Each of Reckson, Reckson OP and
Buyer has the requisite power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and, as the general
partner of Reckson OP, to adopt the Resolution. Reckson OP has the
requisite power and authority to execute and deliver the Notes and the
Indenture and to perform its obligations thereunder. Reckson has the
requisite power and authority to execute, deliver and perform the
Guarantees. The execution and delivery of this Agreement, and the
performance of their obligations hereunder have been duly and validly
authorized by all requisite action by Reckson, Reckson OP and Buyer, the
execution and delivery of the Notes and the Indenture and the performance
of its obligations thereunder have been duly and validly authorized by all
requisite action by Reckson OP, the execution and delivery of the
Guarantees and the performance of its obligations thereunder have been
(and the Resolution will, prior to the filing with the SEC of the Form S-4
Registration Statement and the filing of the preliminary Joint Proxy
Statement, be) duly and validly authorized by all requisite action by
Reckson, and no other corporate, limited liability company or partnership
proceedings on the part of (and no approval of any stockholders or
partners of) Reckson, Reckson OP or any other Subsidiary of Reckson are
necessary to authorize the execution, delivery and performance of this
Agreement, the Notes, the Guarantees and the Indenture; provided, however,
the Share Issuance is subject to the approval of the stockholders of
Reckson in accordance with Section 4.22 hereof. This Agreement has been
duly executed and delivered by Reckson, Reckson OP and Buyer. The Notes,
the Guarantees and the Indenture, assuming that the Share Issuance
Approval is not obtained, will prior to the Effective Time be duly
executed and delivered by Reckson OP. This Agreement constitutes, and the
Indenture and Notes when executed and delivered by Reckson OP (and, in the
case of the Notes and Guarantees, when authenticated by the trustee under
the Indenture), and the Guarantees when executed by Reckson, will
constitute (assuming due authorization, execution and delivery of this
Agreement by the Company), valid and binding obligations of Reckson,
Reckson OP and Buyer (in the case of this Agreement) and of Reckson OP (in
the case of the Notes and the Indenture) and Reckson (in the case of the
Guarantees) enforceable against such respective companies in accordance
with their terms, subject to applicable bankruptcy, insolvency, moratorium
or other similar laws relating to creditors' rights and general principles
of equity. The Notes, Indenture and Guarantees when executed, delivered
and authenticated as aforesaid will reflect and, in the case of the Notes
and Guarantees, be subject to the terms of the Resolution.
SECTION 4.3 Consents and Approvals; No Violations.
(a) Except as set forth in Schedule 4.3(a) of the disclosure
schedule of Reckson, Reckson OP and Buyer attached hereto (the "Reckson
Disclosure Schedule"), neither the execution and delivery of this
Agreement, the Indenture, the Notes and the Guarantees, nor the performance
by each of Reckson, Buyer and Reckson OP of their obligations hereunder and
thereunder, including the adoption of the Resolution, will (i) conflict
with or result in any breach of any provision of the articles of
incorporation, by-laws or similar constituent documents of each of Reckson,
Buyer and Reckson OP or (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration or
obligation to repurchase, repay, redeem or acquire or any similar right or
obligation) under any of the terms, conditions or provisions of, any note,
mortgage, letter of credit, other evidence of indebtedness, guarantee,
license, lease or agreement or similar instrument or obligation to which
Reckson or any of its Subsidiaries, including Reckson OP, is a party or by
which any of them or any of their assets may be bound or (iii) assuming
that the filings, registrations, notifications, authorizations, consents
and approvals referred to in subsection (b) below have been obtained or
made, as the case may be, violate any order, injunction, decree, statute,
rule or regulation of any Governmental Entity to which Reckson, Buyer or
any of their Subsidiaries, including Reckson OP, is subject, excluding from
the foregoing clauses (ii) and (iii) such requirements, defaults, breaches,
rights or violations (A) that would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and would not reasonably be
expected to have a material adverse effect on the ability of Reckson,
Reckson OP or Buyer to perform their obligations hereunder or under the
Notes or the Indenture or (B) that become applicable as a result of the
business or activities in which the Company or any of its affiliates is or
proposes to be engaged or any acts or omissions by, or facts pertaining to,
the Company.
(b) Except as set forth in Schedule 4.3(b) of the Reckson
Disclosure Schedule, no filing or registration with, notification to, or
authorization, consent or approval of, any Governmental Entity is required
in connection with the execution and delivery of this Agreement by Reckson,
Reckson OP or Buyer or of the Notes, the Guarantees and the Indenture by
Reckson OP or the performance by Reckson, Reckson OP or Buyer of their
obligations hereunder, including the adoption of the Resolution, or by
Reckson OP of its obligations under the Notes and the Indenture, except
(i) the filing of the Certificate of Merger in accordance with the DLLCA
and the Articles of Merger in accordance with the MGCL and filings to
maintain the good standing of the Surviving Entity; (ii) compliance with
any applicable requirements of (A) the Securities Act, the Exchange Act and
the TIA; (iii) compliance with any applicable requirements of state
takeover laws; (iv) any Tax Returns that may be required in connection with
the Merger and (v) such other consents, approvals, orders, authorizations,
notifications, registrations, declarations and filings (A) the failure of
which to be obtained or made would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and would not have a material
adverse effect on the ability of Reckson or Buyer to perform its
obligations hereunder or (B) that become applicable as a result of the
business or activities in which the Company or any of its affiliates is or
proposes to be engaged or any acts or omissions by, or facts pertaining to,
the Company.
SECTION 4.4 Capitalization. The authorized stock of Reckson
consists of 100,000,000 shares of Reckson Common Stock and 25,000,000
shares of preferred stock, par value $.01 per share, of Reckson (the
"Reckson Preferred Stock"). As of December 3, 1998, there were (i)
40,035,419 shares of Reckson Common Stock and (ii) 9,192,000 shares of
Reckson Preferred Stock issued and outstanding. All shares of capital
stock of Reckson and all general and limited partnership interests in
Reckson OP have been duly authorized and validly issued and are fully paid
and, except with respect to the general partnership interest in Reckson
OP, nonassessable. As of December 3, 1998, there were outstanding Options
in respect of 4,733,144 shares of Reckson Common Stock at option prices
ranging from $12.041 to $27.041 per share. Upon conversion of all existing
units of limited partnership interest in the Reckson OP, there would be
47,800,047 (49,166,985 shares including the conversion of convertible
preferred units) shares of Reckson Common Stock outstanding. Except as set
forth in Schedule 4.4 of the Reckson Disclosure Schedule, there are
outstanding (A) no shares of stock or other voting securities or
partnership interests of Reckson or Reckson OP, (B) no securities of
Reckson or any Subsidiary of Reckson convertible into or exchangeable for
shares of stock or voting securities or partnership interests of Reckson
or Reckson OP and (C) no options or other rights to acquire from Reckson
or any Subsidiary of Reckson, and no obligation of Reckson or Reckson OP
to issue, any stock, voting securities or partnership interests or
securities convertible into or exchangeable for stock or voting securities
or partnership interests of Reckson or Reckson OP.
SECTION 4.5 SEC Documents. Reckson has timely filed all
required reports, proxy statements, forms and other documents required to
be filed by it with the SEC since January 1, 1997 (collectively, the
"Reckson SEC Documents"). As of their respective dates, and giving effect
to any amendments thereto, (a) the Reckson SEC Documents complied in all
material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be, and the applicable rules and regulations
of the SEC promulgated thereunder and (b) none of the Reckson SEC
Documents (except as to the financial statements contained therein, which
are dealt with in Section 4.6 hereof) contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
SECTION 4.6 Financial Statements. The financial statements of
Reckson (including, in each case, any notes and schedules thereto)
included in the Reckson SEC Documents (a) comply as to form in all
material respects with all applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, (b) are
in conformity with GAAP, applied on a consistent basis (except in the case
of unaudited statements, as permitted by Form 10-Q as filed with the SEC
under the Exchange Act) during the periods involved (except as may be
indicated in the related notes and schedules thereto) and (c) fairly
present, in all material respects, the consolidated financial position of
Reckson and its consolidated Subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
SECTION 4.7 [Intentionally Omitted]
SECTION 4.8 Joint Proxy Statement; Form S-4 Registration
Statement; Other Information. None of the information with respect to
Reckson or its Subsidiaries supplied by Reckson in writing specifically
for inclusion in the Joint Proxy Statement or any amendments thereof or
supplements thereto or in the Form S-4 Registration Statement will, in the
case of the Joint Proxy Statement or any amendments thereof or supplements
thereto, at the time of the mailing of the Joint Proxy Statement or any
amendments or supplements thereto and at the time of the Company Special
Meeting and, if different, the Reckson Special Meeting, or, in the case of
the Form S-4 Registration Statement, at the time it becomes effective,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading, except that no representation is made by
Reckson with respect to information related to the Company or any
affiliate of the Company included in the Joint Proxy Statement or the Form
S-4 Registration Statement, as the case may be. The Joint Proxy Statement
and the Form S-4 Registration Statement will each comply as to form in all
material respects with the provisions of the Exchange Act and the
Securities Act, respectively, and the rules and regulations promulgated
under each of such statutes.
SECTION 4.9 Absence of Material Adverse Changes, etc. Except
as disclosed in the Reckson SEC Documents filed by Reckson and as set
forth in Schedule 4.9 of the Reckson Disclosure Schedule, since September
30, 1998, Reckson and its Subsidiaries have conducted their business in
the ordinary course of business and there has not been a Material Adverse
Effect.
SECTION 4.10 Taxes.
(a) Except as set forth in Schedule 4.10 of the Reckson
Disclosure Schedule, (i) all Tax Returns required to be filed by or with
respect to Taxes of Reckson and its Subsidiaries have been filed in a
timely manner (taking into account all lawful extensions of due dates),
other than those Tax Returns as to which the failure to file would not
reasonably be expected to have a Material Adverse Effect and all such Tax
Returns are true, complete and correct in all material respects, (ii) all
Taxes due and payable have been paid or adequate provision in accordance
with GAAP with respect to the matters covered by such Tax Returns has been
made for the payment therefor, (iii) Reckson and its Subsidiaries have not
received any written notice of deficiency or assessment from any taxing
authority with respect to liabilities for material Taxes of Reckson or its
Subsidiaries that have not been fully paid, finally settled or contested in
good faith and (iv) there are no Liens with respect to Taxes upon any of
the properties or assets of Reckson or its Subsidiaries other than Liens
for Taxes not yet due or payable or that are being contested in good faith
and other than Liens that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. For purposes of
this Agreement, "Tax Return" means any report, return, statement or other
written information required to be supplied to a taxing authority in
connection with Taxes.
(b) Reckson (i) for all taxable years commencing with its
taxable year ending December 31, 1996 has been subject to taxation as a
REIT within the meaning of the Code and its proposed method of operation,
taking into account the Merger and assuming the accuracy of the opinion of
Battle Fowler L.L.P. referred to in Section 6.3(d) hereof, will enable it
to continue to qualify as a REIT for each taxable year ending after the
Closing and (ii) has not taken or omitted to take any action which would
result in a successful challenge to its status as a REIT.
SECTION 4.11 Compliance with Laws. Except as set forth in
Schedule 4.11 of the Reckson Disclosure Schedule, Reckson and its
Subsidiaries are in compliance with all applicable laws, ordinances, rules
and regulations of any Governmental Entity applicable to their respective
businesses and operations, except for such violations, if any, which, in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. All governmental approvals, permits and licenses (collectively,
"Permits") required to conduct the business of Reckson and its
Subsidiaries have been obtained, are in full force and effect and are
being complied with except for such violations and failures to have
Permits in full force and effect, if any, which, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect.
SECTION 4.12 Environmental Matters.
(a) (i) "Cleanup" means all actions required to: (A)
cleanup, remove, treat or remediate Hazardous Materials (as defined
hereafter) in the indoor or outdoor environment; (B) prevent the
Release (as defined hereafter) of Hazardous Materials so that they do
not migrate, endanger or threaten to endanger public health or welfare
or the indoor or outdoor environment; (C) perform pre-remedial studies
and investigations and post-remedial monitoring and care; or
(D) respond to any government requests for information or documents in
any way relating to cleanup, removal, treatment or remediation or
potential cleanup, removal, treatment or remediation of Hazardous
Materials in the indoor or outdoor environment.
(ii) "Environmental Claim" means any claim, action, cause
of action, investigation or written notice by any Person alleging
potential liability (including, without limitation, potential
liability for investigatory costs, Cleanup costs, governmental
response costs, natural resources damages, property damages, personal
injuries, or penalties) arising out of, based on or resulting from (A)
the presence or Release of any Hazardous Materials at any location,
whether or not owned or operated by the Company or any of its
Subsidiaries or (B) circumstances forming the basis of any violation
of any Environmental Law (as defined hereafter).
(iii) "Environmental Laws" means all federal, state, local
and foreign laws and regulations relating to pollution or protection
of the environment, including, without limitation, laws relating to
Releases or threatened Releases of Hazardous Materials or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, transport or handling of Hazardous Materials.
(iv) "Hazardous Materials" means all substances defined as
Hazardous Substances, Oils, Pollutants or Contaminants in the National
Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R.
section 300.5, or defined as such by, or regulated as such under, any
Environmental Law.
(v) "Release" means any release, spill, emission,
discharge, leaking, pumping, injection, deposit, disposal, dispersal,
leaching or migration into the environment (including, without
limitation, ambient air, surface water, groundwater and surface or
subsurface strata) or into or out of any property, including the
movement of Hazardous Materials through or in the air, soil, surface
water, groundwater or property.
(b) (i) Except as set forth in Schedule 4.12(b)(i) of the
Reckson Disclosure Schedule, to the knowledge of Reckson, Reckson and its
Subsidiaries are in compliance with all applicable Environmental Laws
(which compliance includes, but is not limited to, the possession by
Reckson and its Subsidiaries of all permits and other governmental
authorizations required under applicable Environmental Laws, and compliance
with the terms and conditions thereof), except where failures to be in
compliance would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect. Except as set forth in Schedule 4.12(b)(i) of the
Reckson Disclosure Schedule, since January 1, 1996 and prior to the date of
this Agreement, neither Reckson nor any of its Subsidiaries has received
any communication (written or oral), whether from a Governmental Entity,
citizens' group, employee or otherwise, alleging that Reckson or any of its
Subsidiaries is not in such compliance, except where failures to be in
compliance would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(ii) Except as set forth in Schedule 4.12(b)(ii) of the Reckson
Disclosure Schedule, there is no Environmental Claim pending or, to the
knowledge of Reckson, threatened against Reckson or any of its Subsidiaries
or, to the knowledge of Reckson, against any Person whose liability for any
Environmental Claim Reckson or any of its Subsidiaries has or may have
retained or assumed either contractually or by operation of law that would
reasonably be expected to have a Material Adverse Effect.
(iii) Except as set forth in Schedule 4.12(b)(iii) of the
Reckson Disclosure Schedule, there are no present or, to the knowledge of
Reckson, past, actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the Release or presence of any
Hazardous Material that could form the basis of any Environmental Claim
against Reckson or any of its Subsidiaries or, to the knowledge of Reckson,
against any Person whose liability for any Environmental Claim Reckson or
any of its Subsidiaries has or may have retained or assumed either
contractually or by operation of law that would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 4.13 Real Property.
(a) For purposes of this Agreement, "Reckson Permitted Liens"
means (i) mechanics', carriers', workers', repairers', materialmen's,
warehousemen's and other similar Liens arising or incurred in the ordinary
course of business for sums not yet due and payable and such Liens as are
being contested by Reckson in good faith, (ii) Liens arising or resulting
from any action taken by the Company, (iii) matters that would be disclosed
by an accurate survey or inspection of the Reckson Real Property,
(iv) Liens for current Taxes not yet due or payable, (v) any covenants,
conditions, restrictions, reservations, rights, Liens, easements,
encumbrances, encroachments and other matters affecting title which are
shown as exceptions on Reckson's title insurance policies and/or title
commitments or reports which have been made available to the Company,
(vi) any other covenants, conditions, restrictions, reservations, rights,
non-monetary Liens, easements, encumbrances, encroachments and other
matters affecting title which would not individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect and (vii) matters
set forth in Schedule 4.13(a) of the Reckson Disclosure Schedule. "Reckson
Leases" means the real property leases, subleases, licenses and use or
occupancy agreements pursuant to which Reckson or any of its Active
Subsidiaries is the lessee, sublessee, licensee, user or occupant of real
property other than Reckson Owned Real Property, or interests therein
necessary for the conduct of, or otherwise material to, the business of
Reckson and its Subsidiaries as it is currently conducted. "Reckson Leased
Real Property" means all interests in real property pursuant to the Reckson
Leases. "Reckson Owned Real Property" means the real property owned in fee
by Reckson and its Subsidiaries necessary for the conduct of, or otherwise
material to, the business of Reckson and its Subsidiaries as it is
currently conducted. "Reckson Real Property" means Reckson Owned Real
Property and Reckson Leased Real Property.
(b) Schedule 4.13(b) of the Reckson Disclosure Schedule contains
a complete and correct list of all Reckson Owned Real Property setting
forth information sufficient to identify specifically such Reckson Owned
Real Property. Reckson and its Subsidiaries have good, valid and insurable
(at commercially reasonable rates) title to the Reckson Owned Real
Property, free and clear of any Liens other than Reckson Permitted Liens.
(c) Schedule 4.13(c) of the Reckson Disclosure Schedule contains
a complete and correct list of all the Reckson Leased Real Property and
Reckson Leases. Except for such exceptions as would not, in the aggregate,
have a Material Adverse Effect (i) each Reckson Lease is valid and binding
upon Reckson and its Subsidiaries and in full force and effect and grants
the lessee under the Lease the exclusive right to use and occupy the
premises and (ii) either Reckson or its Subsidiaries has good and valid
title to the leasehold estate or other interest created under the Reckson
Leases. To the knowledge of Reckson, no non-monetary defaults exist under
the Reckson Leases which, individually or in the aggregate, would have a
Material Adverse Effect.
(d) The use and operation of the Reckson Real Property in the
conduct of the business of Reckson and its Subsidiaries does not violate
any instrument of record or agreement affecting the Reckson Real Property,
except for such violations that, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect.
(e) To the best knowledge of Reckson, valid policies of title
insurance have been issued insuring the applicable Reckson's or its
Subsidiary's fee simple title to the Reckson Owned Real Property owned by
it, subject only to Reckson Permitted Liens, except where the failure of
such policies to be in full force and effect would not reasonably be
expected, in the aggregate, to have a Material Adverse Effect. To the best
knowledge of Reckson, such policies are, at the date hereof, in full force
and effect, except where the failure to have such valid policies of title
insurance would not reasonably be expected, in the aggregate, to have a
Material Adverse Effect. To the best knowledge of Reckson, no material
claim has been made against any such policy.
(f) Except as provided in Schedule 4.13(f) of the Reckson
Disclosure Schedule, Reckson and its Subsidiaries have no knowledge (i)
that any certificate, permit or license from any Governmental Entity having
jurisdiction over any of the Reckson Real Property or any agreement,
easement or other right which is necessary to permit the lawful use and
operation of the buildings and improvements on any of the Reckson Real
Property or which is necessary to permit the lawful use and operation of
all driveways, roads and other means of egress and ingress to and from any
of the Reckson Real Property has not been obtained and is not in full force
and effect, or of any pending threat of modification or cancellation of any
of same which would have a Material Adverse Effect, (ii) of any written
notice of any violation of any federal, state or municipal law, ordinance,
order, regulation or requirement having a Material Adverse Effect issued by
any Governmental Entity, (iii) of any structural defects relating to any
Reckson Real Property which would have a Material Adverse Effect, (iv) of
any Reckson Real Property whose building systems are not in working order
so as to have a Material Adverse Effect, or (v) of any physical damage to
any Reckson Real Property which would have a Material Adverse Effect for
which there is no insurance in effect covering the cost of the restoration.
(g) Neither Reckson nor any of its Subsidiaries has received any
written or published notice that is required to be disclosed in the Reckson
SEC Documents and is not disclosed therein to the effect that (i) any
condemnation proceedings are pending or threatened with respect to any
Reckson Real Property or (ii) any zoning, building or similar law, code,
ordinance, order or regulation is or will be violated by the continued
maintenance, operation or use of any buildings or other improvements on any
Reckson Real Property or by the continued maintenance, operation or use of
the parking areas, except for such notices that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(h) The rent roll set forth in Schedule 4.13(h) of the Reckson
Disclosure Schedule (the "Reckson Rent Roll") lists each Reckson Space
Lease (including the square footage of the leased premises (if set forth in
the subject Reckson Space Lease)) in effect as of the date hereof.
"Reckson Space Lease" means each lease or other right of occupancy
affecting or relating to a property in which Reckson or its Subsidiaries
(or an entity in which it directly or indirectly has an interest) is the
landlord, either pursuant to the terms of a lease agreement or as successor
to any prior landlord. Except for discrepancies that, either individually
or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect, all information set forth in Reckson Rent Roll is true,
correct and complete as of the date of this Agreement.
(i) No default exists by Reckson or its Subsidiaries under any
Reckson Space Lease, except for such defaults as would, individually or in
the aggregate, not reasonably be expected to have a Material Adverse
Effect. Except as set forth in Schedule 4.13(i) of the Reckson Disclosure
Schedule, to Reckson's knowledge, no tenant is in material default, and no
condition or event exists which with the giving of notice or the passage of
time, or both would constitute a material default by any tenant under any
Reckson Space Lease, except for such defaults that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
SECTION 4.14 Litigation. Except as set forth in either Reckson
SEC Documents or in Schedule 4.14 of the Reckson Disclosure Schedule or
otherwise fully covered by insurance, there is no action, suit or
proceeding pending against, or to the knowledge of Reckson threatened
against, Reckson or any Subsidiary of Reckson or any of their respective
properties before any court or arbitrator or any Governmental Entity which
(i) is pending on the date of this Agreement and seeks to prevent or delay
the Transactions or challenges any of the terms or provisions of this
Agreement or seeks material damages in connection therewith ("Deal
Litigation") or (ii) would reasonably be expected to have a Material
Adverse Effect.
SECTION 4.15 Finders' Fees. Except for Salomon Smith Barney,
Inc., whose fee will be paid by Reckson, there is no investment banker,
broker, finder or other intermediary that might be entitled to any fee or
commission in connection with or upon consummation of the Transactions
based upon arrangements made by or on behalf of Reckson or Buyer.
SECTION 4.16 Share Ownership; Other Ownership. Other than the
shares of Company Preferred Stock acquired in the Initial Sale, neither
Reckson nor Buyer beneficially owns any shares of capital stock of the
Company. Since January 1, 1997, Reckson and Buyer have not acquired any
interest or investment (whether equity or debt) in any corporation,
partnership, joint venture, business trust or other entity which is, or
will be, required to be reported by Reckson in a report to the SEC and
which has not been so reported.
SECTION 4.17 Investment Company Act of 1940. Neither Reckson,
Buyer nor any of their Subsidiaries is, or at the Effective Time will be,
required to be registered under the 1940 Act.
SECTION 4.18 Hart-Scott-Rodino Antitrust Improvements Act of
1976. For purposes of determining compliance with the HSR Act, Reckson
confirms that the conduct of its business consists solely of investing in,
owning and operating real estate for the benefit of its stockholders.
SECTION 4.19 Financing. Reckson has provided, or will provide
to Buyer at the Effective Time, the funds necessary, when taken together
with cash of the Company available on the date hereof and on the Closing
Date, to (i) pay the cash portion of the Merger Consideration, (ii) pay
all fees and expenses required to be paid by the Buying Entities and the
Company in connection with the Merger and the financing of the
Transactions, (iii) perform Reckson's obligations hereunder and the
obligations of the Surviving Entity hereunder and (iv) provide the
Surviving Entity with adequate working capital following the Effective
Time (the "Financing").
SECTION 4.20 Authorization for Class B Stock. Reckson has
taken all necessary action to permit it to issue the shares of Class B
Stock required to be issued by it pursuant to this Agreement and the
shares of Reckson Common Stock issuable upon conversion thereof. Shares of
Class B Stock to be issued pursuant to this Agreement, and the shares of
Reckson Common Stock issuable upon conversion thereof, will, when issued,
be validly issued, fully paid and nonassessable, and no Person will have
any preemptive right of subscription or purchase in respect thereof.
Shares of Class B Stock to be issued pursuant to this Agreement, and the
shares of Reckson Common Stock issuable upon conversion thereof, will,
when issued, be registered under the Securities Act and the Exchange Act
and registered or exempt from registration under any applicable state
securities laws and will, when issued, be listed on the NYSE, subject to
official notice of issuance.
SECTION 4.21 Board Recommendation. The Board of Directors of
Reckson, at a meeting duly called and held, has (a) determined that this
Agreement and the Transactions, taken together, including both assuming
that the Share Issuance occurs and assuming that it does not occur, are
advisable and in the best interests of the stockholders of Reckson; and
(b) resolved to recommend that the stockholders of Reckson approve, in
connection with the Merger, the issuance of only Class B Stock as the
non-cash portion of the Merger Consideration (the "Share Issuance").
SECTION 4.22 Required Vote of Reckson Stockholders. The
approval by a majority of votes cast at the Reckson Special Meeting is
required under the rules of the NYSE to approve the Share Issuance;
provided that, the total vote cast on the Share Issuance represents over
50% in interest of all securities of Reckson entitled to vote on the Share
Issuance (the "Share Issuance Approval"). No other vote of the
stockholders of Reckson or holders of Reckson OP Units is required by law,
the rules of the NYSE, the charter or by-laws of Reckson, the Amended and
Restated Agreement of Limited Partnership of Reckson OP, as amended and
supplemented or otherwise in order for Reckson to consummate the Merger
and the transactions contemplated hereby.
SECTION 4.23 Opinion of Financial Advisor. The Board of
Directors of Reckson has received the opinion of Salomon Smith Barney,
Inc., dated the date of this Agreement, to the effect that, as of such
date, the Merger Consideration is fair to Reckson from a financial point
of view. A copy of the written opinion of Salomon Smith Barney, Inc. will
be delivered to the Company as soon as practicable after the date of this
Agreement.
SECTION 4.24 Buyer's Operations. Buyer has been formed by
Reckson solely to enter into this Agreement and consummate the
Transactions and has not engaged in any business activities or conducted
any operations other than in connection with this Agreement and the
Transactions.
SECTION 4.25 Surviving Entity After the Merger. At and
immediately after the Effective Time, and after giving effect to the
Merger, the Financing and the other Transactions (and any changes in
Reckson's, Reckson OP's and the Surviving Entity's assets and liabilities
as a result thereof), each of Reckson, the Surviving Entity and Reckson OP
will not (i) be insolvent (either because its financial condition is such
that the sum of its debts is greater than the fair value of its assets or
because the present fair saleable value of its assets will be less than
the amount required to pay its probable liabilities on its debts as they
mature), (ii) have unreasonably small capital with which to engage in its
business or (iii) have incurred or plan to incur debts beyond its ability
to pay as they mature.
SECTION 4.26 Reckson and Buyer Knowledge. Without limiting the
provisions of the letter referred to in Section 5.1(u) hereof, Reckson,
Reckson OP and Buyer represent that they are aware of the information and
planned actions set forth on Schedule 5.1 of the Company Disclosure
Schedule and consent thereto.
ARTICLE 5
COVENANTS
SECTION 5.1 Conduct of the Company. From the date hereof
until the Effective Time, the Company and its Subsidiaries shall conduct
their business in the ordinary course and in substantially the same manner
as heretofore conducted and shall use their reasonable best efforts,
consistent with the constraints set forth below, to preserve intact their
business organizations and relationships with third parties and to keep
available the services of their present officers and employees. Without
limiting the generality of the foregoing, other than (i) as set forth in
Schedule 5.1 of the Company Disclosure Schedule, (ii) as specifically
contemplated by this Agreement and (iii) with the written consent of
Reckson (provided that Reckson shall be deemed to have given its written
consent to any transaction as to which the Company has given Reckson
written notice and as to which Reckson does not object in writing within
five (5) business days after receipt of such notice), from the date of
hereof until the Effective Time, the Company shall, and shall cause each of
its Subsidiaries to:
(a) confer on a regular basis with one or more representatives
of Reckson to report operational matters of materiality and any proposals
to engage in material transactions;
(b) promptly notify Reckson after becoming aware of any
material change in the condition (financial or otherwise), business,
properties, assets, liabilities or the normal course of its business or in
the operation of its properties, or of any material governmental
complaints, investigations or hearings (or communications indicating that
the same may be contemplated);
(c) promptly deliver to Reckson true and correct copies of any
report, statement or schedule filed with the SEC subsequent to the date of
this Agreement;
(d) duly and timely file, after Reckson's prior review (so
long as such review does not interfere with such timely filing, assuming
that the Company used its reasonable best efforts to give Reckson at least
5 business days prior review time), in the case of Material Tax Returns (as
defined hereafter), all reports, tax returns and other documents required
to be filed with federal, state, local and other authorities, subject to
extensions permitted by law, provided the Company notifies Reckson that it
is availing itself of such extensions and provided such extensions do not
adversely affect the Company's status as a qualified REIT under the Code;
provided, however, that in no event shall the Company or any of its
Subsidiaries file any such report, tax return or other document that takes
or asserts a position inconsistent with the Company's qualification as a
REIT. As used herein, "Material Tax Returns" shall mean all federal, state
and local income tax returns and, the Maryland Personal Property Tax Return
and the New York State and City Real Estate Property Tax Returns;
(e) not make or rescind any express or deemed election
relative to Taxes (unless required by law or necessary to preserve the
Company's status as a REIT or the status of any noncorporate Subsidiary of
the Company as a partnership for federal income Tax purposes or as a
Qualified REIT Subsidiary under section 856(i) of the Code, as the case may
be);
(f) not declare, set aside or pay any dividend (other than
regular quarterly dividends, the Special Dividend or regular distributions
pursuant to the Company Operating Partnership Agreement (or as necessary to
maintain REIT status)) or other distribution with respect to any shares of
stock of the Company or Company OP Units, or any repurchase, redemption or
other acquisition by the Company or any Subsidiary of the Company of any
outstanding shares of stock or other equity securities of, or other
ownership interests in, the Company;
(g) not issue or sell shares of Company Common Stock or any
securities convertible into or exchangeable or exercisable for, or any
rights, warrants or options to acquire any such shares of Company Common
Stock except for the issuance of (i) shares of Company Common Stock issued
pursuant to Company stock-based benefits and options plans in accordance
with their terms as of the date of this Agreement and (ii) shares of stock
upon the exercise, exchange or conversion of securities, rights, warrants
and options outstanding on the date of this Agreement or referred to in
clause (i) above;
(h) not amend any material term of any outstanding security
issued by the Company or any Subsidiary of the Company;
(i) not acquire, enter into any option to acquire, or exercise an
option or other right or election or enter into any Commitment (including
any lease or amendment thereto), for the acquisition of, any real property
or other transaction (but excluding Commitments referred to in the budget
attached as Schedule 5.1(i) of the Company Disclosure Schedule) involving
payments to or by the Company in excess of $75,000 or which is not included
in such budget, encumber assets or commence construction of, or enter into
any Commitment to develop or construct, other real estate projects;
(j) not amend the Articles of Incorporation, or the Company
By-Laws, or the articles or certificate of incorporation, bylaws, code of
regulations, partnership agreement, operating agreement or joint venture
agreement or comparable charter or organization document of any Active
Subsidiary of the Company;
(k) grant no options or other right or commitment relating to
any Company Securities, or any other security the value of which is
measured by shares of Company Common Stock, or any security subordinated to
the claim of its general creditors;
(l) not pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted, contingent or otherwise), other
than the payment, discharge or satisfaction, in the ordinary course of
business consistent with past practice or in accordance with their terms,
of liabilities reflected or reserved against in, or contemplated by, the
most recent consolidated financial statements (or the notes thereto) of the
Company included in the Company SEC Documents;
(m) not settle any tax certiorari proceeding with respect to
the Company without the written consent of Reckson and Buyer (which consent
shall not be unreasonably withheld or delayed);
(n) except (1) in order to pay dividends permitted pursuant to
this Agreement and to pay transaction expenses related to the Transactions
or (2) to finance an acquisition permitted by clause (r) below (which is in
accordance with the budget attached hereto as Schedule 5.1(i) of the
Company Disclosure Schedule), not incur, assume or guarantee by the Company
or any Subsidiary of the Company any indebtedness for borrowed money;
(o) except in connection with a transaction that is permitted by
the budget attached as Schedule 5.1(i) to the Company Disclosure Schedule,
not create or assume by the Company or any Subsidiary of the Company any
Lien on any asset other than Company Permitted Liens and Liens which, in
the aggregate, do not have and could not reasonably be expected to have a
Material Adverse Effect;
(p) maintain its books and records in accordance with GAAP
consistently applied and not change any method of accounting or accounting
practice by the Company or any Subsidiary of the Company, except for any
such change required by reason of a change in GAAP;
(q) except as set forth in Schedule 5.1(q) of the Company
Disclosure Schedule, not (i) grant any severance or termination pay to any
director, officer or employee of the Company or any Subsidiary of the
Company, (ii) enter into any employment, deferred compensation or other
similar agreement (or any amendment to any such existing agreement) with
any director, officer or employee of the Company or any Subsidiary of the
Company, (iii) increase the benefits payable under any existing severance
or termination pay policies or employment agreement, (iv) increase the
compensation, bonus or other benefits payable to any director, officer or
employee of the Company or any Subsidiary of the Company or (v) adopt any
new plan, program or arrangement that would constitute a deferred
compensation, incentive compensation and equity compensation plan;
"welfare" plan, fund or program (within the meaning of section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"));
"pension" plan, fund or program (within the meaning of section 3(2) of
ERISA); each employment, termination or severance agreement; and each other
employee benefit plan, fund, program, agreement or arrangement, in each
case, that is sponsored, maintained or contributed to or required to be
contributed to by the Company or by any trade or business, whether or not
incorporated (each, an "ERISA Affiliate"), that together with the company
would be deemed a "single employer" within the meaning of section 4001(b)
of ERISA, or to which the Company or an ERISA Affiliate is party, whether
written or oral, for the benefit of any employee or former employee of the
company or any United States Subsidiary of the Company;
(r) except as permitted by Section 5.4 hereof, not consummate (or
enter into any agreement or agreement in principle with respect to or take
any steps to facilitate) any acquisition of stock or assets or operations
of another entity, other than any acquisition by the Company in respect of
which the cash consideration paid by the Company is less than $100,000
individually and for all such transactions taken together, the aggregate
cash consideration paid by the Company is less than $1,000,000;
(s) not sell, lease (or amend any existing lease), mortgage,
subject to Lien or otherwise dispose of any Company Real Property, except
in connection with transactions as contemplated by the budget that is
attached as Schedule 5.1(i) of the Company Disclosure Schedule or that does
not involve any sale, lease, mortgage, Lien or disposition in excess of
7,500 square feet;
(t) not make any loans, advances or capital contributions to,
or investments in, any other Person, other than loans, advances and capital
contributions to Subsidiaries of the Company in existence on the date
hereof;
(u) conduct its operations on or after the date hereof in
conformity with the requirements for taxation as a REIT within the meaning
of Section 856 of the Code; provided, however, that this covenant shall be
deemed satisfied if the Company conducts its operations as described in the
letter dated as of the date hereof as signed by the Company and Reckson;
(v) not acquire or enter into any option or agreement to
acquire, any real property or other transaction involving in excess of
$100,000 which is not included in the budget that is attached as Schedule
5.1(i) of the Company Disclosure Schedule;
(w) not make any expenditure (capital or otherwise) in excess
of $100,000 or enter into any Commitment for any such expenditure, whether
or not set forth in Schedule 5.1(i) of the Company Disclosure Schedule,
except in connection with the following (all of which are permitted): (I)
the commitment fee for the extension of the currently existing mortgage on
810 Seventh Avenue by Credit Suisse First Boston (not to exceed $1.5
million), (II) the development of Phase I of Deer Valley Corporate Center
(a/k/a Loopland) (in accordance with the development budget prepared by the
Company in connection with such project set forth in Schedule 5.1(w) of the
Company Disclosure Schedule and not to exceed $11.3 million in the
aggregate), (III) expenses of the Merger, the Initial Sale and the related
transactions or the defense or prosecution of any action, proceeding or
litigation, (IV) the annual employee bonuses for 1998 (not to exceed $1.4
million in the aggregate) and certain severance payments as disclosed in
Schedule 3.3(a) of the Company Disclosure Schedule, and (V) such
expenditures or Commitments which are of an emergency nature and to which
prompt response is necessary in the proper performance, operation and
maintenance of a building of its type (and the Company shall give prompt
written notice to Reckson of any action taken pursuant to this clause (V));
(x) comply with Section 3.1 of the Stock Purchase Agreement; or
(y) not authorize any of, or commit or agree to take any of, the
foregoing actions except as otherwise permitted by this Agreement.
provided that as soon as reasonably practicable, the Buying Entities shall
appoint an individual as the representative of the Buying Entities for all
purposes of this Section 5.1; provided further that the Buying Entities
shall be entitled to change the identity of such representative upon notice
to the Company of such change.
In connection with Reckson's monitoring of the Company's
operations and planning for an orderly transition of the business after the
date hereof and Reckson's granting consents to Company action, the Company
shall provide to Reckson information concerning the Company's current
operations, reasonably requested by Reckson so long as doing so does not
disrupt or interfere with the conduct of the Company's normal operations;
provided that any such request for information shall be made in writing to
the chief financial officer of the Company, shall be limited to information
available without undue hardship; and provided further that without the
consent of the chief financial officer of the Company no employee or
representative of Reckson (including any of its accountants and advisors)
shall be physically present at any of the Company's properties or executive
offices. Notwithstanding the foregoing, the Company will deliver to
Reckson (i) all monthly operating and executive summary reports (including
budget vs. actual analyses and, to the extent available, accompanying
commentary) prepared consistent with the Company's past practice, such
reports to be delivered to Reckson no later than 45 days after the end of
the month covered by such report, (ii) all financial data and reports
provided to lenders by the Company or its Subsidiaries, such data and
reports to be delivered to Reckson no later than provided to such lenders,
(iii) and such other management reports and financial information that is
requested by Reckson and is available without undue hardship through the
Company's existing accounting and financial reporting system (including,
without limitation, leases, lease amendments or supplements, and occupancy
ledger, aged accounts receivable and related reports), and (iv) those
documents solely relating to the Company Real Property located in Arizona
and Florida which had been placed in the Company's diligence room located
at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third
Avenue, New York, New York; with respect to subclauses (iii) and (iv) of
this paragraph, such information and reports to be delivered no more than 5
business days after requested.
If any information requested by Reckson from the Company in
accordance with the preceding paragraph is not provided within the time
periods specified therein, Reckson may send notice of such failure to the
chairman of the Board of Directors of the Company (the "Chairman")
specifying the information requested. The Chairman shall use his
reasonable best efforts to arrange for such information to be provided
within five business days of his receipt of such notice unless he
determines in his good faith judgment that a request is not in accordance
with the preceding paragraph. If for any reason the Chairman does not
arrange for such information to be provided within five business days of
his receipt of such notice, Reckson may send notice to the Board of
Directors of the Company requesting the formation of an independent
committee of directors (the "Committee") to oversee all responses to
further requests for information. If the Committee determines in its good
faith judgment that a request is not in accordance with the foregoing
paragraph, the Company will not be obligated to provide the information.
If Reckson delivers more than three notices to the Chairman pursuant to
this Section 5.1, the Chairman shall thereafter be responsible for
arranging the Company's response to all further requests by Reckson for
information in accordance with the procedures and time periods specified in
the preceding paragraph. If the Chairman fails to timely arrange for such
information to be provided in accordance with the preceding paragraph,
Reckson may request the formation of the Committee as set forth above (if
not previously formed) and that the Committee provide such information
subject to the procedures and time periods specified in the immediately
preceding sentence.
The Company acknowledges that Reckson intends to use information
provided to it in accordance with the foregoing to prepare to manage the
assets of the Company, including by installing certain property operational
information on Reckson's management system; provided, however, it is
expressly agreed and understood that Tower shall provide such information
only in the form in which it currently prepares that information and shall
have no obligation to provide or to assist in preparing information in the
form used or desired to be used by Reckson that would require undue effort.
On or before December 23, 1998, the Company shall deliver to
Reckson (i) an amended federal income tax return for its taxable year
ending December 31, 1997 (the "Amended Return") and (ii) the schedule
required by Section 856(c)(6)(A) of the Code (the "Schedule") for such
taxable year. Reckson shall have the right to review the Amended Return,
and to review the Schedule. On or before December 30, 1998, Reckson shall
notify the Company, in writing, as to whether or not it approves the
Schedule. If Reckson approves the Schedule, the Company shall file the
Amended Return with the Schedule attached on or before December 31, 1998.
If Reckson does not approve the Schedule, then Reckson and the Company
shall work in good faith to resolve any differences pertaining to the
Schedule through January 18, 1999 (the "Interim Period"). If such
differences cannot be resolved during the Interim Period, the Amended
Return, with the Schedule attached, shall be filed no later than January
25, 1999. The Schedule attached to the Amended Return shall be the
Schedule prepared by the Company, with any modifications agreed to by the
Company during the Interim Period.
SECTION 5.2 Conduct of Reckson.
(a) Reckson covenants and agrees that it will not establish a
record date for voting at a meeting of its stockholders or written consent
of its stockholders in lieu of a meeting, a purpose of which meeting or
consent in lieu of meeting is to approve a transaction (other than the
Share Issuance) or recapitalization requiring the affirmative vote of
Reckson's stockholders unless such record date is after the Standstill Date
(as defined hereafter). Reckson shall not commence, or be a party to an
agreement providing for, or recommend acceptance of, a tender or exchange
offer for shares of Reckson Common Stock if the earliest date on which such
offer can no longer be accepted by a Reckson stockholder is prior to the
Standstill Date. Notwithstanding the foregoing, Reckson may, prior to the
Standstill Date, (a) execute an agreement requiring it to convene a Special
Meeting of its stockholders or (b) commence, or be a party to an agreement
providing for, or recommend acceptance of, a tender or exchange offer for
shares of Reckson Common Stock, so long as the foregoing requirements, to
the extent applicable, are satisfied. As used herein, "Standstill Date"
shall be the earlier of (i) tenth business day after the Exchange Agent has
commenced delivering the Merger Consideration to holders of each of shares
of Company Common Stock and Company OP Units or (ii) 30 days after the
Outside Termination Date.
(b) Reckson will comply with Section 3.1 of the Amended and
Restated Operating Agreement (the "Metropolitan Agreement") of Metropolitan
Partners LLC (a copy of which has been delivered to the Company). In
addition, Reckson will not deliver a written notice to Crescent pursuant to
such Section 3.1, requiring it to fund into escrow its $75 million (the
"Funding Notice"), unless (i) at the time of delivery of the Funding Notice
the conditions set forth in Sections 6.1(b), (c), (d) and (e) hereof and
Section 6.3(f) hereof shall have been satisfied (provided, that, Reckson's
first such failure to comply with this subclause (i) shall not be deemed to
be a breach of this covenant) and (ii) with respect to the fourth such
Funding Notice (if there is a fourth such Notice), Reckson shall not
deliver such Notice without the prior written consent of the Company, which
consent shall not be unreasonably withheld. Reckson shall not agree to any
amendment of the Metropolitan Agreement that adversely affects its rights
under the aforesaid Section 3.1 with respect to such $75 million
contribution and such Funding Notices without the written consent of the
Company. Reckson shall deliver Funding Notices to Crescent at times
intended, in its good faith judgment, to provide for the $75 million
contribution to be made at or prior to the Closing.
(c) Prior to the earlier of (i) the initial filing with the
SEC of the Form S-4 Registration Statement and (ii) the initial filing with
the SEC of the Joint Proxy Statement, the Board of Directors of Reckson
shall adopt the Resolution.
SECTION 5.3 Stockholders' Meetings; Joint Proxy Material.
(a) The Company shall, in accordance with applicable law and the
Articles of Incorporation and the Company By-laws, duly call, give notice
of, convene and hold a special meeting of its stockholders (the "Company
Special Meeting") as promptly as practicable after the date hereof for the
purpose of considering and taking action upon this Agreement and the Merger
and such other matters as may in the reasonable judgment of the Company be
appropriate for consideration at the Company Special Meeting. The Joint
Proxy Statement shall, subject to the proviso set forth below, include the
recommendation of the Board of Directors of the Company that the
stockholders of the Company vote in favor of approval and adoption of this
Agreement and the Merger; provided that the Board of Directors of the
Company may withdraw, modify or change such recommendation if it has
determined in good faith, after consultation with outside legal counsel,
that the failure to withdraw, modify or change such recommendation would
present a reasonable risk of a breach of the duties of the Board of
Directors of the Company under applicable law.
(b) Reckson shall, in accordance with applicable law and the
charter and by-laws of Reckson, duly call, give notice of, convene and hold
a special meeting of its stockholders (the "Reckson Special Meeting") as
promptly as practicable after the date hereof for the purpose of
considering and taking action upon the Share Issuance in connection with
the Merger and such other matters as may in the reasonable judgment of
Reckson be appropriate for consideration at the Reckson Special Meeting.
The Joint Proxy Statement shall include the recommendation of the Board of
Directors of Reckson that the stockholders of Reckson vote in favor of
approval and adoption of the Share Issuance in connection with the Merger;
provided, however, that the sole remedy in the event that the Joint Proxy
Statement does not include such recommendation shall be the issuance of the
Notes in accordance with Article I hereof if the Share Issuance Approval is
not obtained. At Closing, the president and chief financial officer of
Reckson will certify to the Company the results of the Reckson Special
Meeting so as to enable the Company to determine whether the Share Issuance
has been obtained.
(c) (i) The Company and Reckson shall, as soon as practicable
following the date of this Agreement, prepare and file with the SEC, shall
use reasonable best efforts to have cleared by the SEC and shall thereafter
mail to stockholders of the Company on the one hand, and to the
stockholders of Reckson, on the other hand, as promptly as practicable, a
joint proxy statement and a form of joint proxy, in connection with the
vote of the Company's stockholders, on the one hand, and Reckson's
stockholders on the other hand, with respect to, in the case of the
Company, this Agreement and the Merger, and, in the case of Reckson, the
Share Issuance (such joint proxy statement, together with any amendments
thereof or supplements thereto, in each case in the form or forms mailed to
the Company's stockholders and Reckson's stockholders is herein called the
"Joint Proxy Statement") and (ii) otherwise comply in all material respects
with all legal requirements applicable to the Company Special Meeting and
the Reckson Special Meeting. The Company and Reckson shall coordinate and
cooperate with one another with respect to the timing of the Company
Special Meeting and the Reckson Special Meeting and shall endeavor to hold
such Meetings on the same day, unless the SEC objects thereto.
(d) The Company and Reckson shall notify one another promptly of
the receipt of any comments from the SEC or its staff and or any government
officials for amendments or supplements to the Joint Proxy Statement or for
additional information and will supply the other with copies of all
correspondence between the Company or any of its representatives, or
Reckson or any of its representatives, as the case may be, on the one hand,
and the SEC, or its staff or any other government official, on the other
hand, with respect to the Joint Proxy Statement. The Joint Proxy Statement
shall comply in all material respects with all applicable requirements of
law. Whenever any event occurs which is required to be set forth in an
amendment or supplement to the Joint Proxy Statement, the Company and
Reckson shall promptly inform one another of such occurrence and cooperate
in filing with the SEC or its staff or any other governmental officials,
and/or mailing to stockholders of the Company and Reckson, such amendment
or supplement.
SECTION 5.4 No Solicitation of Transactions by the Company.
(a) From the date hereof until the termination of this
Agreement, the Company shall not (whether directly or indirectly through
advisors, agents or other intermediaries), and the Company shall use its
reasonable best efforts to ensure that the respective officers, directors,
advisors, representatives or other agents of the Company will not, directly
or indirectly, (i) solicit, initiate or encourage any Company Acquisition
Proposal (as defined hereafter) or (ii) engage in discussions (other than
to disclose the provisions of this Agreement) or negotiations with, or
disclose any non-public information relating to the Company or its
Subsidiaries or afford access to the properties, books or records of the
Company or its Subsidiaries to, any Person that has made, or has indicated
its interest in making, a Company Acquisition Proposal; provided that, if
the Company's Board of Directors determines in good faith, after
consultation with outside legal counsel, that the failure to engage in such
negotiations or discussions or provide such information would present a
reasonable risk of a breach of the duties of the Board of Directors of the
Company under applicable law, the Company may furnish information with
respect to the Company and its Subsidiaries and participate in negotiations
and discussions and enter into agreements regarding such Company
Acquisition Proposal with a third party ("Company Acquisition Agreements");
provided further that prior to approving or recommending such a Company
Acquisition Proposal or entering into a Company Acquisition Agreement or
withdrawing, amending or modifying its recommendation of this Agreement and
the Transactions, the Company shall (A) notify Reckson in writing that it
intends to approve, recommend or accept such a Company Acquisition Proposal
or enter into such a Company Acquisition Agreement or withdraw, amend or
modify its recommendation, and (B) attach the most current version of any
such Company Acquisition Proposal or Company Acquisition Agreement to such
notice. For purposes of this Agreement, "Company Acquisition Proposal"
means any offer or proposal for a merger, consolidation, recapitalization,
liquidation or other business combination involving the Company or any of
its Subsidiaries or the acquisition or purchase of 50% or more of any class
of equity securities of the Company or any of its Subsidiaries, or any
tender offer (including self-tenders) or exchange offer that if consummated
would result in any Person beneficially owning 50% or more of any class of
equity securities of the Company or any of its Subsidiaries, or all or
substantially all of the assets of, the Company and its Subsidiaries, other
than the Transactions. Furthermore, nothing contained in this Section 5.4
shall prohibit the Company or the Company's Board of Directors from taking
and disclosing to the Company's stockholders a position with respect to a
tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-
2(a) promulgated under the Exchange Act if failure to so disclose would be
inconsistent with its obligations under applicable law or to make any other
disclosures required in its judgment by applicable law. On the date of
this Agreement, the Company shall immediately terminate discussions, if
any, with all third parties relating to a Company Acquisition Proposal.
SECTION 5.5 Access to Information; Confidentiality Agreement.
(a) Upon reasonable advance notice, between the date hereof and
the Effective Time, the Company shall (i) provide to Reckson's prospective
lenders, and such lenders' accountants and counsel (collectively, the
"Lenders"), for the sole purposes of conducting customary diligence in
connection with their obtaining the Financing, reasonable access during
normal business hours to the offices, properties, books and records of the
Company and its Subsidiaries, (ii) furnish to the Lenders such financial
and operating data and other information as such Persons may reasonably
request and (iii) instruct the Company's employees, counsel and financial
advisors to fully cooperate with the Lenders in their investigation of the
business of the Company and its Subsidiaries; provided that all requests
for information, to visit properties or facilities or to interview the
Company's employees or agents should be in writing and directed to and
coordinated with the chief financial officer of the Company or such person
or persons as he shall designate; and provided further that any information
and documents received by Reckson or the Lenders (whether furnished before
or after the date of this Agreement) shall be held in strict confidence in
accordance with the Confidentiality Agreement dated April 20, 1998 between
Reckson and the Company (the "Reckson Confidentiality Agreement"), which
shall remain in full force and effect pursuant to the terms thereof,
notwithstanding the execution and delivery of this Agreement or the
termination hereof. Notwithstanding anything to the contrary in this
Agreement, neither the Company nor any of its Subsidiaries shall be
required to disclose any information to Reckson or the Lenders if doing so
would violate any agreement, law, rule or regulation to which the Company
or any of its Subsidiaries is a party or to which the Company or any of its
Subsidiaries is subject.
(b) Upon reasonable advance notice, between the date hereof and
the 45th day from the date hereof (except that with respect to specific
inquiries and specific areas of inquiry as to which Reckson has not
reasonably cooperated in responding, until Reckson has reasonably responded
to such inquiries) (the "Access Limitation Date"), the Buying Entities
shall (i) give the Company, and its counsel, financial advisors, auditors
and other authorized representatives (collectively, the "Company's
Representatives"), reasonable access during normal business hours to the
offices, properties, books and records of Reckson and its Subsidiaries,
(ii) furnish to the Company's Representatives such financial and operating
data and other information as such Persons may reasonably request and
(iii) instruct Reckson's employees, counsel and financial advisors to fully
cooperate with the Company in its investigation of the business of Reckson
and its Subsidiaries; provided that (i) all requests for information, to
visit plants or facilities or to interview Reckson employees or agents
should be in writing and directed to and coordinated with the chief
financial officer of Reckson or such person or persons as he shall
designate and (ii) that any request for such information shall be limited
to information available without undue hardship; and provided further that
any information and documents received by the Company or the Company's
Representatives (whether furnished before or after the date of this
Agreement) shall be held in strict confidence to the same extent as Reckson
is obligated to hold such information relating to the Company under the
Reckson Confidentiality Agreement. Following the Access Limitation Date
and until the Effective Time, the Buying Entities shall provide to the
Company information concerning the Buying Entities' aggregate operations
and any matters which might have a Material Adverse Effect on Reckson,
reasonably requested by the Company so long as doing so does not disrupt or
interfere with the conduct of the Buying Entities' normal operations;
provided, that, any such request for information shall be made in writing
to the chief financial officer of Reckson and shall be limited to
information available without undue hardship; and provided further that
without the consent of the chief financial officer of Reckson no employee
or representative of the Company (including any of its accountants and
advisors) shall be physically present at any of Reckson's properties or
executive offices. Notwithstanding anything to the contrary herein,
Reckson shall provide after the Access Limitation Date any material
requested by the Company or the Company's Representatives that is
reasonably related to the material supplied before the Access Limitation
Date as is reasonably requested by the Company or the Company's
Representatives. Notwithstanding anything to the contrary in this
Agreement, neither Reckson nor any of its Subsidiaries shall be required to
disclose any information to this Company or the Company's Representatives
if doing so would violate any agreement, law, rule or regulation to which
Reckson or any of its Subsidiaries is a party or to which Reckson or any of
its Subsidiaries is subject.
SECTION 5.6 Voting of Shares of Company Preferred Stock. Each
of the Buying Entities shall vote all shares of securities of the Company
entitled to vote, beneficially owned by it or its affiliates in favor of
adoption and approval of the Merger and this Agreement at the Company
Special Meeting.
SECTION 5.7 Director and Officer Liability.
(a) From and after the Effective Time, Buyer shall provide
exculpation and indemnification (including advance of expenses) for each
Indemnitee (as defined hereafter) which is the same as the exculpation and
indemnification (including advance of expenses) provided to such parties by
the Company immediately prior to the Effective Time in the Articles of
Incorporation, Company By-Laws or in its partnership, operating or similar
agreement or an agreement between an Indemnitee and the Company or a
Subsidiary of the Company, in each case as in effect on the date hereof and
all of such rights shall survive the Merger and continue in full force and
effect. To the extent permitted by the DLLCA, advancement of expenses
pursuant to this Section 5.7 shall be mandatory rather than permissive and
the Surviving Entity shall advance Costs (as defined in Section 5.7(b)
hereof) in connection with such indemnification.
(b) In addition to the other rights provided for in this Section
5.7 and not in limitation thereof, for a period of six years and ninety
days after the Effective Time, Buyer shall, and shall cause the Surviving
Entity to the fullest extent permitted by law to, (i) indemnify and hold
harmless the individuals who on or prior to the Effective Time were
officers, directors, employees or agents of the Company and any of its
Subsidiaries (the "Indemnitees") against all losses, expenses (including,
without limitation, attorneys' fees and the cost of any investigation or
preparation incurred in connection thereof), claims, damages, liabilities,
judgments, or amounts paid in settlement (collectively, "Costs") in respect
to any threatened, pending or contemplated claim, action, suit or
proceeding, whether criminal, civil, administrative or investigative
arising out of acts or omissions occurring on or prior to the Effective
Time (including, without limitation, in respect of acts or omissions in
connection with this Agreement and the Transactions) (an "Indemnifiable
Claim") and (ii) advance promptly to such Indemnitees all Costs incurred in
connection with any Indemnifiable Claim. In the event any Indemnifiable
Claim is asserted or made within such six-year-and-ninety-day period, all
rights to indemnification and advancement of costs in respect of any such
Indemnifiable Claim shall continue until such Indemnifiable Claim is
disposed of or all judgments, orders, decrees or other rulings in
connection with such Indemnifiable Claim are fully satisfied. The
Indemnitees as a group shall be entitled to one counsel of their choice
with respect to each related matter except to the extent there is, in the
opinion of counsel to an Indemnitee, under applicable standards of
professional conduct, a conflict on any significant issue between positions
of any two or more Indemnitees, in which case such Indemnitee shall be
entitled to separate counsel; provided that in all cases, Mr. Feldman shall
be entitled to separate counsel from all other Indemnitees. The fees of
such separate counsel shall be Costs, paid for by the Surviving Entity.
(c) Buyer shall, and shall cause the Surviving Entity to,
expressly assume and honor in accordance with their terms all indemnity
agreements listed in Schedule 5.7 of the Company Disclosure Schedule. For
a period of three years and ninety days after the Effective Time, Buyer
shall, and shall cause the Surviving Entity to, provide officers' and
directors' liability insurance in respect of acts or omissions occurring
prior to the Effective Time covering each such Person currently covered by
the Company's officers' and directors' liability insurance policy on terms
with respect to coverage and amount no less favorable than those of such
policy in effect on the date hereof; provided, however, that in no event
shall Buyer or Surviving Entity be required to expend more than an amount
per year equal to 200% of current annual premiums paid by the Company for
such insurance (the "Maximum Amount") to maintain or procure insurance
coverage pursuant hereto (which the Company represents and warrants
aggregates currently to $133,000 per annum); provided, further, that if the
amount of the annual premiums necessary to maintain or procure such
insurance coverage exceeds the Maximum Amount, Buyer and Surviving Entity
shall maintain or procure, for such three-year-and-ninety-day period, the
most advantageous policies of directors' and officers' insurance obtainable
for an annual premium equal to the Maximum Amount. In the event that any
Indemnitee is entitled to coverage under an officers' and directors'
liability insurance policy pursuant to this Section 5.7(c) and such policy
has lapsed, terminated, been repudiated or is otherwise in breach or
default as a result of Buyer's failure to maintain and fulfill its
obligations pursuant to such policy to the extent required by as provided
in this Section 5.7(c); Buyer shall, and shall cause the Surviving Entity
to, pay to the Indemnitee such amounts and provide any other coverage or
benefits as the Indemnitee shall have received pursuant to such policy.
Buyer agrees that, should the Surviving Entity fail to comply with the
obligations of this Section 5.7, Buyer shall be responsible therefor.
(d) To the fullest extent permitted by applicable law, to the
extent Buyer fails to provide the indemnification contemplated by, or seeks
to recover payments pursuant to, this Section 5.7, the following shall
apply: Indemnitee's entitlement to indemnification and advancement of
expenses shall be determined in a written opinion by Independent Counsel
(as defined hereafter) agreed upon by the Surviving Entity and the
Indemnitee. If the Surviving Entity and the Indemnitee cannot agree, the
Independent Counsel shall be appointed by the American Arbitration
Association. If Independent Counsel does not make any determination
respecting Indemnitee's entitlement to indemnification or advance of
expenses hereunder within 90 days after receipt by the Company of a written
request therefor, Independent Counsel shall be discharged and relieved of
any further responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing) and shall be replaced by
a successor, in the same manner as if originally appointed. As used
hereunder "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporate law and neither currently
is, nor in the five years previous to its selection or appointment has
been, retained to represent (i) the Company or Indemnitee in any matter
material to either such party (other than with respect to matters
concerning the rights of Indemnitee under this Agreement or of other
indemnitees under similar indemnification agreements) or (ii) any other
party to the action or proceeding giving rise to a claim for
indemnification hereunder. Reckson or Buyer shall pay any and all
reasonable fees and expenses of Independent Counsel incurred acting
pursuant to this Section and in any action or proceeding to which it is a
party or witness in respect of its investigation and written report and
shall pay all reasonable fees and expenses incident to the procedures in
which such Independent Counsel was selected or appointed.
(e) Notwithstanding any other provisions hereof, the obligations
of the Company and Buyer contained in this Section 5.7 shall be binding
upon the successors and assigns of Buyer. In the event the Company or
Buyer or any of their respective successors or assigns (i) consolidates
with or merges into any other Person or (ii) transfers all or substantially
all of its properties or assets to any Person, then, and in each case,
proper provision shall be made so that successors and assigns of the
Company or the Surviving Entity, as the case may be, honor the
indemnification and expense advance obligations set forth in this Section
5.7.
(f) The obligations of the Company and Buyer under this Section
5.7 shall not be terminated or modified in such a manner as to adversely
affect any Indemnitee to whom this Section 5.7 applies without the consent
of such affected Indemnitee (it being expressly agreed that the Indemnitees
to whom this Section 5.7 applies shall be third party beneficiaries of this
Section 5.7).
(g) Buyer shall, and shall cause the Surviving Entity to,
advance promptly all Costs to any Indemnitee incurred by enforcing the
indemnity or other obligations provided for in this Section 5.7.
(h) Reckson unconditionally and irrevocably guarantees the
obligations of Buyer under this Section 5.7.
SECTION 5.8 Reasonable Best Efforts; Cooperation. Upon the
terms and subject to the conditions of this Agreement, each party hereto
shall use its reasonable best efforts (including with respect to the
consents set forth in Schedule 5.8 of the Company Disclosure Schedule) to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations
to consummate the Transactions. The Company shall use its reasonable best
efforts to obtain the consent of The Carlyle Group to the transfer of the
Company's interest in 2800 Associates, L.P. Reckson and the Company shall
meet on a weekly basis (or, more frequently, as appropriate) for the
purpose of coordinating the Company's operations prior to Closing. At the
Effective Time, Reckson shall, at its expense, cause the satisfactory
repayment and discharge of all indebtedness outstanding (including accrued
interest, premiums, if any, and expense reimbursement, if required) under
the Company's line of credit with Fleet Bank.
SECTION 5.9 Certain Filings. The Company and Buyer shall
cooperate with one another (a) in connection with the preparation of the
Joint Proxy Statement, (b) in determining whether any action by or in
respect of, or filing with, any Governmental Entity is required, or any
actions, consents, approvals or waivers are required to be obtained from
parties to any material contracts, in connection with the consummation of
the Transactions and (c) in seeking any such actions, consents, approvals
or waivers or making any such filings, furnishing information required in
connection therewith or with the Joint Proxy Statement and seeking timely
to obtain any such actions, consents, approvals or waivers.
SECTION 5.10 [Intentionally Omitted]
SECTION 5.11 Public Announcements. None of the Company,
Reckson or Buyer nor any of their respective affiliates shall issue or
cause the publication of any press release or other public announcement
with respect to the Merger, this Agreement or the other Transactions
without the prior consultation with the other party, except as may be
required by law or by any listing agreement with, or the policies of, a
national securities exchange.
SECTION 5.12 Further Assurances. At and after the Effective
Time, the officers and directors of the Surviving Entity will be authorized
to execute and deliver, in the name and on behalf of the Company or Buyer,
any deeds, bills of sale, assignments or assurances and to take and do, in
the name and on behalf of the Company or Buyer, any other actions to vest,
perfect or confirm of record or otherwise in the Surviving Entity any and
all right, title and interest in, to and under any of the rights,
properties or assets of the Company acquired or to be acquired by the
Surviving Entity as a result of, or in connection with, the Merger.
SECTION 5.13 Employee Matters.
(a) The Buying Entities shall, and shall cause their
Subsidiaries to, honor in accordance with their terms all agreements,
contracts, arrangements, commitments and understandings described in
Schedule 5.13 of the Company Disclosure Schedule.
(b) Except with respect to accruals under any defined benefit
pension plans, Reckson will, or will cause the Surviving Entity and its
Subsidiaries to, give all active employees of the Company who continue to
be employed by the Company as of the Effective Time ("Continuing
Employees") full credit for purposes of eligibility, vesting and
determination of the level of benefits under any employee benefit plans or
arrangements maintained by Buyer, the Surviving Entity or any Subsidiary of
Buyer or the Surviving Entity for such Continuing Employees' service with
the Company or any Subsidiary of the Company to the same extent recognized
by the Company immediately prior to the Effective Time. Reckson will, or
will cause the Surviving Entity and its Subsidiaries to, (i) waive all
limitations as to preexisting conditions exclusions and waiting periods
with respect to participation and coverage requirements applicable to the
Continuing Employees under any welfare plan that such employees may be
eligible to participate in after the Effective Time, other than limitations
or waiting periods that are already in effect with respect to such
employees and that have not been satisfied as of the Effective Time under
any welfare plan maintained for the Continuing Employees immediately prior
to the Effective Time, and (ii) provide each Continuing Employee with
credit for any co-payments and deductibles paid prior to the Effective Time
in satisfying any applicable deductible or out-of-pocket requirements under
any welfare plans that such employees are eligible to participate in after
the Effective Time.
(c) Reckson shall not, and shall not permit the Surviving Entity
or any of its Subsidiaries to, at any time prior to 90 days following the
date of the Closing, without complying fully with the notice and other
requirements of the Worker Adjustment Retraining and Notification Act of
1988 (the "WARN Act"), effectuate (i) a "plant closing" as defined in the
WARN Act affecting any single site of employment or one or more facilities
or operating units within any single site of employment of the Surviving
Entity or any of its Subsidiaries; or (ii) a "mass layoff" as defined in
the WARN Act affecting any single site of employment of the Surviving
Entity or any of its Subsidiaries; or any similar action under applicable
state, local or foreign law requiring notice to employees in the event of a
plant closing or layoff.
(d) At or prior to the Closing, Reckson shall fully and
unconditionally guaranty in accordance with their terms the severance
agreements, contracts, arrangements and commitments and understandings
described in Schedule 5.13 of the Company Disclosure Schedule.
SECTION 5.14 Transfer Taxes. The Buying Entities and the
Company shall cooperate in the preparation, execution and filing of all Tax
Returns, questionnaires, applications, or other documents regarding any
real property transfer or gains, sales, use, transfer, value added, stock
transfer and stamp taxes, any transfer, recording, registration and other
fees, and any similar Taxes which become payable in connection with the
Transactions (together with any related interest, penalties or additions
thereto, "Transfer Taxes"). The Company or its successor shall pay all
Transfer Taxes.
SECTION 5.15 Advice of Changes. Each party hereto shall
promptly advise the other parties hereto orally and in writing to the
extent it has knowledge of (i) any representation or warranty made by it
contained in this Agreement that is qualified as to materiality becoming
untrue or inaccurate in any respect or any such representation or warranty
that is not so qualified becoming untrue or inaccurate in any material
respect, (ii) the failure by it to comply in any material respect with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement, and (iii) any change
or event having a Material Adverse Effect on the Company or on the truth of
its representations and warranties or the ability of the conditions set
forth in Article 7 to be satisfied; provided, however, that no such
notification shall affect the representations, warranties, covenants or
agreements of the parties (or remedies with respect thereto) or the
conditions to the obligations of the parties under this Agreement.
SECTION 5.16 Guaranty. Reckson hereby agrees to take all
actions within their respective powers to cause Buyer to perform its
obligations under this Agreement.
SECTION 5.17 Form S-4 Registration Statement. The Buying
Entities shall, as promptly as practicable following the date of this
Agreement, prepare and file with the SEC a registration statement on Form
S-4 (the "Form S-4 Registration Statement"), containing the Joint Proxy
Statement and prospectus, in connection with the registration under the
Securities Act, of (i) shares of Class B Stock to be issued in the Merger
assuming that the Share Issuance Approval is obtained and (ii) shares of
Class B Stock, Notes and Guarantees to be issued in the Merger, assuming
that the Share Issuance Approval is not obtained (and with respect to both
clauses (i) and (ii) the shares of Reckson Common Stock issuable upon
conversion of the Class B Stock). The Buying Entities and the Company
shall, and shall cause their accountants and attorneys to, use their
reasonable best efforts to have or cause the Form S-4 Registration
Statement declared effective and the Indenture qualified under the TIA, as
promptly as practicable, including, without limitation, causing their
accountants to deliver necessary or required instruments such as opinions
and certificates, and will take any other action reasonably required or
necessary to be taken under federal or state securities laws or otherwise
in connection with the registration process. Prior to the Closing, Reckson
will (i) provide a CUSIP number for the Notes, (ii) cause the Notes and
Guarantees to be rated with the appropriate nationally recognized rating
agencies and (iii) take such other steps required to permit the Notes to
be deposited with the Depository Trust Company.
SECTION 5.18 Blue Sky Permits. The Buying Entities shall use
their reasonable best efforts to obtain, prior to the effective date of the
Form S-4 Registration Statement, all necessary state securities laws or
"blue sky" permits and approvals required to carry out the transactions
contemplated by this Agreement and the Merger and the issuance of the Class
B Stock and the Notes, and will pay all expenses incident thereto.
SECTION 5.19 Listing. Reckson and Reckson OP shall use their
respective reasonable best efforts (i) to cause the shares of Class B Stock
to be issued in the Merger (and the shares of Reckson Common Stock issuable
upon conversion of the Class B Stock) to be listed on the NYSE, subject to
notice of official issuance thereof, prior to the Closing Date and (ii) to
cause the Notes to be issued in the Merger in the event the Share Issuance
Approval is not obtained to be listed on the American Stock Exchange, Inc.,
subject to notice of official issuance thereof, prior to the Closing Date;
provided that in connection with the listing of the Notes, Reckson shall
not be obligated to comply with any requirements for listing on such
exchange if such requirements (i) are not already obligations of Reckson or
Reckson OP and (ii) fulfilling or maintaining such compliance requirements
would require materially onerous efforts by Reckson or Reckson OP.
SECTION 5.20 Affiliates. Prior to the Closing, the Company
shall deliver to Buyer a list identifying all Persons who are, at the time
this Agreement is submitted for approval to the stockholders of the
Company, "affiliates" of the Company for purposes of Rule 145 under the
Securities Act.
ARTICLE 6
CONDITIONS TO THE MERGER
SECTION 6.1 Conditions to Each Party's Obligations. The
respective obligations of the Company and the Buying Entities to consummate
the Merger are subject to the satisfaction or, to the extent permitted by
applicable law, the waiver on or prior to the Effective Time of each of the
following conditions:
(a) this Agreement shall have been adopted by the stockholders
of the Company in accordance with applicable law;
(b) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of
the Merger;
(c) no action or proceeding by any Governmental Entity shall
have been commenced (and be pending), or, to the knowledge of the parties
hereto, threatened, against the Company, Reckson, Reckson OP or Buyer or
any of their respective affiliates, partners, associates, officers or
directors, or any officers or directors of such partners, seeking to
prevent or delay the Transactions or challenging any of the terms or
provisions of this Agreement or seeking material damages in connection
therewith;
(d) (i) the Form S-4 Registration Statement shall have become
effective under the Securities Act, and shall not be the subject of any
stop order or proceedings seeking a stop order, and any material "blue sky"
and other state securities laws applicable to the registration and
qualification of (A) the shares of Class B Stock to be issued in the Merger
assuming that the Share Issuance Approval is obtained and (B) the shares of
Class B Stock, Notes and Guarantees to be issued in the Merger assuming
that the Share Issuance Approval is not obtained (and with respect to
clauses (A) and (B) the shares of Reckson Common Stock issuable upon
conversion of the Class B Stock) shall have been complied with and (ii) the
Indenture shall have been qualified under the TIA; and
(e) the shares of Class B Stock to be issued in the Merger
(and the shares of Reckson Common Stock issuable upon conversion of such
Class B Stock) shall have been approved for listing on the NYSE, subject to
official notice of issuance.
SECTION 6.2 Conditions to the Company's Obligations. The
obligation of the Company to consummate the Merger shall be further subject
to the satisfaction or, to the extent permitted by applicable law, the
waiver on or prior to the Effective Time of each of the following
conditions:
(a) Reckson, Reckson OP and Buyer shall have performed in all
material respects each of their respective agreements and covenants
contained in or contemplated by this Agreement (other than Section 5.15
hereof) that are required to be performed by it at or prior to the
Effective Time pursuant to the terms hereof, except for such failures of
performance as would not impair in any non de minimis respect the value of
the Buying Entities, taken together;
(b) the representations and warranties of Reckson, Reckson OP
and Buyer contained in Article IV hereof shall be true and correct in all
respects on and as of the Closing Date (it being understood that, for
purposes of this Section 6.2(b), all representations and warranties shall
be interpreted without giving effect to the words "materially" or
"material" individually or as it appears in the term "Material Adverse
Effect" or qualifications or exceptions based on such words), except (i) to
the extent such representations and warranties speak as of an earlier date,
in which case they shall be true in all respects as of such earlier date,
(ii) as otherwise contemplated by this Agreement, (iii) as may result from
any actions or transactions by or involving the Company or any of its
affiliates and (iv) to the extent the failure of such representations and
warranties to be true in all respects, individually or in the aggregate,
would not have a Material Adverse Effect. The Company and Reckson agree
that, notwithstanding anything to the contrary in this Agreement, an
aggregate effect or impact involving $40 million or more will be deemed to
have or constitute a Material Adverse Effect and an aggregate effect or
impact will not be deemed to have or constitute a Material Adverse Effect
unless it involves $40 million or more;
(c) the Company shall have received a certificate signed by the
chief operating officer, general partner or managing member, as the case
may be, of each of Reckson, Reckson OP and Buyer, dated the Closing Date,
to the effect that, to such officer's knowledge, the conditions set forth
in Sections 6.2(a), 6.2(b) and 6.2(d) hereof have been satisfied or waived;
(d) the Company shall have received a bring-down opinion of
Brown & Wood LLP, counsel to Reckson, dated as of the Closing Date, also
covering the period through the Closing and otherwise substantially in the
form of its opinion referred to in the penultimate recital to this
Agreement and previously delivered to the Company; and
(e) the Tower Articles Supplementary shall have been duly and
validly filed with the Maryland Department.
SECTION 6.3 Conditions to Obligations of Reckson and Buyer.
The obligations of Reckson and Buyer to effect the Merger shall be further
subject to the satisfaction, or to the extent permitted by applicable law,
the waiver on or prior to the Effective Time of each of the following
conditions:
(a) the Company shall have performed in all material respects
each of its agreements and covenants contained in or contemplated by this
Agreement (other than Section 5.15 hereof) that are required to be
performed by it at or prior to the Effective Time pursuant to the terms
hereof, except for such failures of performance as would not impair in any
non de minimis respect the value of the Company to Reckson;
(b) the representations and warranties of the Company contained
in Article III hereof shall be true and correct in all respects on and as
of the Closing Date (it being understood that, for purposes of this Section
6.3(b), all representations and warranties shall be interpreted without
giving effect to the words "materially" or "material" individually or as it
appears in the term "Material Adverse Effect" or qualifications or
exceptions based on such words), except (i) to the extent such
representations and warranties speak as of an earlier date, they shall be
true in all respects as of such earlier date, (ii) as otherwise
contemplated by this Agreement, (iii) as may result from any actions or
transactions by or involving either Reckson or Buyer or any of their
respective affiliates and (iv) to the extent the failure of such
representations and warranties to be true in all respects, individually or
in the aggregate, would not have a Material Adverse Effect. The Company
and Reckson agree that, notwithstanding anything to the contrary in this
Agreement, an aggregate effect or impact involving $40 million or more will
be deemed to have or constitute a Material Adverse Effect and an aggregate
effect or impact will not be deemed to have or constitute a Material
Adverse Effect unless it involves $40 million or more;
(c) Reckson shall have received a certificate signed by the
chief executive officer of the Company, dated the Closing Date, to the
effect that, to such officer's knowledge, the conditions set forth in
Sections 6.3(a) and 6.3(b) hereof have been satisfied or waived;
(d) the Company shall have delivered to Reckson a certificate
of Battle Fowler L.L.P. stating that nothing has come to the attention of
Battle Fowler L.L.P. which would cause it to revoke, rescind or modify in
any material respect its opinion as to certain matters relating to the
qualification of the Company as a REIT, delivered to Reckson and its
counsel concurrently with the execution and delivery of this Agreement, as
provided in the forepart of this Agreement; provided, however, that the
foregoing condition shall be deemed satisfied if the only reason that it
would not otherwise be satisfied is the failure of the Representation
Letter to be true and correct at all times since the execution hereof.
Battle Fowler L.L.P. shall have no duty to conduct due diligence between
the date of signing this Agreement and the date of the Closing in
delivering the certification referred to in the preceding sentence;
(e) [Intentionally Omitted;]
(f) those consents, authorizations, orders and approvals of
(or filings or registration with) any governmental commission, board, other
regulatory body or third parties required in connection with the execution,
delivery and performance of this Agreement by the Company set forth in
Schedule 6.3(f) of the Company Disclosure Schedule (which shall not include
the financing agreements related to the properties located at or known as
Corporate Center and 2800 North Central) shall have been obtained.
ARTICLE 7
TERMINATION
SECTION 7.1 Termination. Notwithstanding anything herein to
the contrary, this Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, whether before or after
the parties hereto have obtained stockholder approval:
(a) by the mutual written consent of the Company and the Buying
Entities;
(b) by either the Company, on the one hand, or Reckson and
Buyer, on the other hand, if the Merger has not been consummated by May 31,
1999, or such other date, if any, as the Company, on the one hand, and the
Buying Entities, on the other hand, shall agree upon (the "Outside
Termination Date"); provided that the right to terminate this Agreement
under this Section 7.1(b) shall not be available to any party whose failure
to fulfill any obligation under this Agreement has been the cause of or
resulted in the failure of the Merger to occur on or before such date;
(c) by either the Company, on the one hand, or the Buying
Entities, on the other hand, if there shall be any law or regulation that
makes consummation of the Merger illegal or if any judgment, injunction,
order or decree enjoining the Buying Entities or the Company from
consummating the Merger is entered and such judgment, injunction, order or
decree shall become final and nonappealable;
(d) by the Buying Entities, (i) upon a material breach of any
covenant or agreement of the Company set forth in this Agreement (other
than clauses (i) and (ii) of the last paragraph of Section 5.1 hereof,
which is dealt with in subsection (j) below) which remains uncured for
twenty (20) business days after notice of such breach has been delivered by
the Buying Entities to the Company, or (ii) if any representation or
warranty of the Company shall become untrue, in either case such that the
conditions set forth in Section 6.3(a) hereof or Section 6.3(b) hereof, as
the case may be, would be incapable of being satisfied;
(e) by the Company, (i) upon a material breach of any
covenant or agreement of any of the Buying Entities set forth in this
Agreement which remains uncured for twenty (20) business days after notice
of such breach has been delivered by the Company to the Buying Entities, or
(ii) if any representation or warranty of Reckson or Buyer shall become
untrue, in either case such that the conditions set forth in Section 6.2(a)
hereof or Section 6.2(b) hereof, as the case may be, would be incapable of
being satisfied;
(f) by the Company, if the Board of Directors of the Company
determines to accept a Company Acquisition Proposal; provided, however,
that in order for the termination of this Agreement pursuant to this
Section 7.1(f) to be deemed effective, the Company shall have complied with
the provisions contained in Section 5.4 hereof, and shall simultaneously
make payment of all amounts due under Section 7.3 hereof;
(g) by Buyer, if prior to the Company Special Meeting, the Board
of Directors of the Company (i) shall have withdrawn or modified or amended
(or publicly announced an intention to withdraw) in any manner adverse to
Buyer its approval or recommendation of the Merger; (ii) makes any
recommendation with respect to any Company Acquisition Proposal other than
a recommendation to reject such Company Acquisition Proposal; (iii) enters
into any agreement which would result in consummation of a Company
Acquisition Proposal other than this Agreement; or (iv) resolves to do any
of the foregoing;
(h) by the Company, if Reckson breaches Section 5.2(b) hereof;
(i) by the Company or Buyer, if the stockholders of the Company
fail to approve and adopt this Agreement and the Merger at the Company
Special Meeting or any postponement thereof; and
(j) by Buyer (X) if, pursuant to Section 5.1 hereof, Reckson
shall have notified the Company in writing on or before December 30, 1998
that it approved the Schedule, and the Company shall have failed to file
the Amended Return and the Schedule on or before December 31, 1998 in
accordance with Section 5.1 hereof, provided, however, that the termination
right described in this clause (X) can be exercised by Buyer only on or
before January 31, 1999 or (Y) if, pursuant to Section 5.1 hereof, Reckson
shall have notified the Company in writing on or before December 30, 1998
that it did not approve the Schedule, and either (i) the Company shall have
failed to file the Amended Return and the Schedule on or before January 25,
1999 in accordance with Section 5.1 hereof or (ii) the Company shall have
filed the Amended Return and the Schedule on or before January 25, 1999 in
accordance with Section 5.1 hereof, but the Schedule as filed was prepared
in a fraudulent manner; provided, however, that the termination right
described in this clause (Y) can be exercised by Buyer only on or before
February 24, 1999.
The party desiring to terminate this Agreement shall give written
notice of such termination to the other party.
SECTION 7.2 Effect of Termination.
(a) Except for any breach of this Agreement by any party hereto
(which breach and liability therefor shall not be affected by the
termination of this Agreement), if this Agreement is terminated pursuant to
Section 7.1 hereof, then this Agreement shall become void and of no effect
with no liability on the part of any party hereto; provided that the
agreements contained in Sections 7.2, 7.3 and 8.2 hereof, the second
proviso to the first sentence of Section 5.5(a) hereof, the second proviso
to the first sentence of Section 5.5(b) hereof and the letter referred to
in Section 5.1(u) hereof shall survive the termination hereof; and provided
further that the Confidentiality Agreements shall remain in full force and
effect.
(b) Buyer agrees that neither the Company nor its directors,
officers, employees, representatives or agents, nor any Person who shall
make a Company Acquisition Proposal shall be deemed, by reason of the
making of such proposal or any actions taken in connection with it not
otherwise in violation of this Agreement, to have tortiously or otherwise
wrongfully interfered with or caused a breach of this Agreement, or other
agreements, instruments and documents executed in connection herewith, or
the rights of Buyer or any of its affiliates hereunder.
SECTION 7.3 Fees and Expenses.
(a) If this Agreement shall have been terminated (i) pursuant to
Section 7.1(f) or 7.1(g) hereof or (ii) pursuant to Section 7.1(i) hereof
and, at the time of such stockholder vote, a Company Acquisition Proposal
shall have been publicly announced and not withdrawn, terminated or lapsed,
which provides for consideration per share of Common Stock for all such
shares which is greater than $23 per share and which is reasonably capable
of being financed by the Person making such proposal or (iii) pursuant to
Section 7.1(i) hereof in circumstances where clause (ii) above does not
apply, then the Company shall, promptly, but in no event later than one
business day after the termination of this Agreement (or in the case of
clause (i) above by reason of a termination pursuant to Section 7.1(f)
hereof, simultaneously with such termination), pay Reckson an amount equal
to the Applicable Break-Up Fee (as defined hereafter); provided that
neither Reckson nor Buyer was in material breach of any of its
representations, warranties, covenants or agreements hereunder at the time
of termination. Only one fee in an amount not to exceed the amount of the
Applicable Break-up Fee shall be payable to Reckson pursuant to Section
7.3(a) hereof. Payment of the Applicable Break-Up Fee shall be made, as
directed by Reckson, by wire transfer in immediately available funds
promptly, but in no event later than two (2) business days following such
termination.
(b) The "Applicable Break-Up Fee" shall be an amount equal to the
lesser of (x) $15 million in the case of clause (i) of Section 7.3(a), $7.5
million in the case of clause (ii) of Section 7.3(a) and $3.5 million in
the case of clause (iii) of Section 7.3(a), plus, in the case of a Break-Up
Fee payable pursuant to clauses (i) or (ii) above, the Expense Amount (as
defined hereafter) (the "Base Amount") and (y) the maximum amount that can
be paid to the party entitled to the Applicable Breakup Fee in the year in
which this Agreement is terminated (the "Termination Year") and in all
relevant taxable years thereafter without causing it to fail to meet the
requirements of sections 856(c)(2) and (3) of the Code (the "REIT
Requirements") for such year, determined as if the payment of such amount
did not constitute income described in sections 856(c)(2)(A)-(H) and
856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by
independent accountants to the party entitled to the Applicable Breakup
Fee. Notwithstanding the foregoing, in the event the party entitled to the
Applicable Breakup Fee receives a ruling from the Internal Revenue Service
(a "Break-Up Fee Ruling") holding that such party's receipt of the Base
Amount would either constitute Qualifying Income or would be excluded from
gross income within the meaning of the REIT Requirements, such party's
Applicable Break-Up Fee shall be an amount equal to the Base Amount. If
the amount payable for the Termination Year to the party entitled to the
Applicable Break-up Fee under the preceding sentence is less than the Base
Amount, the Company shall place the remaining portion of the Base Amount in
escrow and shall not release any portion thereof to such party unless and
until the Company receives either of the following: (i) a letter from such
party's independent accountants indicating that additional amounts can be
paid at that time to such party without causing such party to fail to meet
the REIT Requirements for any relevant taxable year, in which event the
Company shall pay to such party such amount, or (ii) a Break-Up Fee Ruling,
in which event the Company shall pay to such party the unpaid Base Amount.
The Company's obligation to pay any unpaid portion of the Applicable Break-
Up Fee shall terminate three years from the date of this Agreement and the
Company shall have no obligation to make any further payments
notwithstanding that the entire Base Amount relating to such Applicable
Break-Up Fee has not been paid as of such date. The "Expense Amount"
relating to each Applicable Break-Up Fee shall be the amount of actual,
direct out-of-pocket expenses incurred by the party entitled to the
Applicable Break-Up Fee in connection with the transactions contemplated by
this Agreement (but in any case, excluding any expenses relating to the
existing litigation between the parties hereto and Crescent); provided,
however, in no event shall the Expense Amount relating to any Applicable
Break-Up Fee exceed $1.75 million in the aggregate.
(c) Except as provided otherwise in this Section 7.3, all costs
and expenses incurred in connection with this Agreement and the
Transactions shall be paid by the party incurring such expenses.
(d) In the event of a suit by any party hereto for a breach of
this Agreement, the prevailing party shall be entitled to actual, out-of-
pocket litigation expenses incurred by such prevailing party in such
action.
ARTICLE 8
MISCELLANEOUS
SECTION 8.1 Notices. All notices, requests, demands, waivers
and other communications required or permitted to be given under this
Agreement to any party hereunder shall be in writing and deemed given upon
(a) personal delivery, (b) transmitter's confirmation of a receipt of a
facsimile transmission, (c) confirmed delivery by a standard overnight
carrier or when delivered by hand or (d) when received in the United States
by certified or registered mail, postage prepaid, addressed at the
following addresses (or at such other address for a party as shall be
specified by notice given hereunder):
If to Reckson or Reckson OP, to:
Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Fax: (516) 622-6788
Attention: Jason M. Barnett, Esq.
General Counsel
with a copy to:
Brown & Wood LLP
One World Trade Center
New York, New York 10048
Fax: (212) 839-5599
Attention: Joseph W. Armbrust Jr., Esq.
Peter T. Simor, Esq.
and with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Fax: (212) 859-4000
Attention: Stephen Fraidin, P.C.
Lee Parks, Esq.
If to Buyer, to:
Metropolitan Partners LLC
c/o Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, NY 11747
Fax: (516) 622-6786
Attention: Jason M. Barnett, Esq.
If to the Company, to:
Tower Realty Trust, Inc.
292 Madison Avenue
New York, New York
Fax: (212) 448-1865
Attention: Lester S. Garfinkel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022-9931
Fax: (212) 735-2000
Attention: Lou R. Kling, Esq.
Howard L. Ellin, Esq.
and with a copy to:
Battle Fowler L.L.P.
Park Avenue Tower
75 East 55th Street
New York, New York 10022
Fax: (212) 339-9150
Attention: Steven L. Lichtenfeld, Esq.
SECTION 8.2 Survival of Representations and Warranties. The
representations and warranties contained herein and in any certificate or
other writing delivered pursuant hereto shall not survive the Effective
Time. All other representations, warranties and covenants contained herein
which by their terms are to be performed in whole or in part, or which
prohibit actions, subsequent to the Effective Time, shall survive the
Merger in accordance with their terms.
SECTION 8.3 Interpretation. References in this Agreement to
"reasonable best efforts" shall not require a Person obligated to use its
reasonable best efforts to incur other than de minimis out-of-pocket
expenses or indebtedness in connection with such obligation under this
Agreement, including to obtain any consent of a third party or, except as
expressly provided herein, to institute litigation. References herein to
the "knowledge of the Company" shall mean the actual knowledge of the
officers (as such term is defined in Rule 3b-2 promulgated under the
Exchange Act) of the Company or its Subsidiaries, or such knowledge that
such officers would have had but for the gross negligence or bad faith of
such officers. Whenever the words "include," "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words
"without limitation." The phrase "made available" when used in this
Agreement shall mean that the information referred to has been made
available if requested by the party to whom such information is to be made
available. As used in this Agreement, the terms "affiliate(s)" and
"associates" shall have the meaning set forth in Rule 12b-2 promulgated
under the Exchange Act. References herein to this Agreement shall be
deemed to include the letter referred to in Section 5.1(u) hereof.
The article and section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the
parties hereto and shall not in any way affect the meaning or
interpretation of this Agreement. Any matter disclosed pursuant to any
Schedule of the Company Disclosure Schedule or the Reckson Disclosure
Schedule shall not be deemed to be an admission or representation as to the
materiality of the item so disclosed.
SECTION 8.4 Amendments, Modification and Waiver.
(a) Except as may otherwise be provided herein, any provision of
this Agreement may be amended, modified or waived by the parties hereto, by
action taken by or authorized by their respective Board of Directors, prior
to the Effective Time if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by the Company and the
Buying Entities or, in the case of a waiver, by the party against whom the
waiver is to be effective; provided that after the adoption of this
Agreement by the stockholders of the Company, no such amendment shall be
made except as allowed under applicable law.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 8.5 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that no party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties hereto.
SECTION 8.6 Specific Performance. The parties acknowledge and
agree that any breach of the terms of this Agreement would give rise to
irreparable harm for which money damages would not be an adequate remedy
and accordingly the parties agree that, in addition to any other remedies,
each shall be entitled to enforce the terms of this Agreement by a decree
of specific performance without the necessity of proving the inadequacy of
money damages as a remedy.
SECTION 8.7 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
(regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof and except to the extent that the
validity and effectiveness of the Merger are required to be governed by the
laws of the State of Maryland or the State of Delaware) as to all matters,
including, but not limited to, matters of validity, construction, effect,
performance and remedies. Each of the Company and the Buying Entities
hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United
States of America located in the State of New York (the "New York Courts")
for any litigation arising out of or relating to this Agreement or the
Transactions (and agrees not to commence litigation relating thereto except
in such courts), waives any objection to the laying of venue of any such
litigation in the New York Courts and agrees not to plead or claim in any
New York Court that such litigation brought therein has been brought in any
inconvenient forum.
SECTION 8.8 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the Transactions are not affected in any
manner materially adverse to any party hereto. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner.
SECTION 8.9 Third Party Beneficiaries. This Agreement is
solely for the benefit of the Company and its successors and permitted
assigns, with respect to the obligations of Buyer under this Agreement, and
for the benefit of the Buying Entities, and their respective successors and
permitted assigns, with respect to the obligations of the Company under
this Agreement, and this Agreement shall not, except to the extent
necessary to enforce the provisions of Section 5.7 hereof be deemed to
confer upon or give to any other third party any remedy, claim, liability,
reimbursement, cause of action or other right.
SECTION 8.10 Entire Agreement. This Agreement, including any
exhibits or schedules hereto, the Confidentiality Agreement, the Stock
Purchase Agreement, the Representation Letter and the letter referred to in
Section 5.1(u) hereof constitute the entire agreement among the parties
hereto with respect to the subject matter hereof and supersedes all other
prior agreements or understandings, both written and oral, between the
parties or any of them with respect to the subject matter hereof.
SECTION 8.11 Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be deemed an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each
party hereto shall have received counterparts hereof signed by all of the
other parties hereto.
SECTION 8.12 Litigation Trust; CPRs.
(a) The Company, Reckson, Reckson OP and Buyer hereby agree
that if the Company believes that all of the conditions set forth in
Section 3.1 of the Metropolitan Agreement for the funding of the $75
million capital contribution of Crescent have been met, but Crescent fails
to fully fund the $75 million capital contribution to Buyer, the following
shall occur (it being agreed that such belief shall not affect the rights
of Crescent and the Company under the Release delivered by the Company to
Crescent):
(i) the Board of Directors of the Company shall have the
right, immediately preceding the Effective Time, to assign to a litigation
trust (the "Trust") formed by the Company for the purpose of pursuing the
litigation (and related matters) which is the subject of the Release, dated
as of December 8, 1998, entered into by the Company with Crescent (the
"Crescent Litigation"), all of the Company's right, title and interest in
and to such Crescent Litigation;
(ii) holders of Company Common Stock and Company OP Units as
in existence at the Effective Time will hold interests in the Trust
entitling such holders to their pro rata portion of any amounts
received by the Trust or otherwise in the Trust, net of expenses. As
such, each share of Company Common Stock or Company OP Units
outstanding at the Effective Time will, in addition to the
consideration otherwise payable under this Agreement, receive one
contingent payment right in the Trust ("CPR") representing the right
to receive its pro rata portion of all Trust assets;
(iii) the Trust shall be initially funded by: (A) reducing
the Special Dividend by up to $4,000,000 (the exact amount to be
determined by the Board of Directors of the Company) and (B)
contributing such amount to the Trust;
(iv) the Trust shall be managed by Trustees (the number and
identity of which shall be designated by the Board of Directors of the
Company prior to the Effective Time); and
(v) the Surviving Corporation, Reckson, Reckson OP and
Buyer and their respective affiliates shall fully cooperate with the
Trust and its representatives in pursuing all related litigation
against Crescent; provided that none of the Surviving Entity, Reckson
or Reckson OP shall have any obligation to take any action under this
clause requiring it to incur non de minimis out-of-pocket expenses.
(b) The foregoing paragraph (a) represents the general intent
of the parties with respect to the matters set forth therein. From the
date hereof until the Effective Time, the parties shall take such actions,
prepare such actions and otherwise endeavor to do those things necessary to
provide to the holders of Company Common Stock and Common OP Units the full
benefit of the foregoing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day
and year first above written.
TOWER REALTY TRUST, INC.
By: /s/ Lester S. Garfinkel
-------------------------------------
Name: Lester S. Garfinkel
Title: Executive Vice President,
Finance and Administration
and Chief Financial Officer
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its general partner
By: /s/ Scott H. Rechler
--------------------------------
Name: Scott H. Rechler
Title: President &
Chief Operating Officer
METROPOLITAN PARTNERS LLC
By: /s/ Scott H. Rechler
-------------------------------------
Name: Scott H. Rechler
Title: President
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Scott H. Rechler
-------------------------------------
Name: Scott H. Rechler
Title: President &
Chief Operating Officer
EXHIBIT A TO THE MERGER AGREEMENT
RECKSON ASSOCIATES REALTY CORP.
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF A CLASS OF SHARES OF COMMON STOCK
Reckson Associates Realty Corp., a Maryland corporation (the
"Corporation), certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: Pursuant to the authority expressly vested in the board
of directors of the Corporation (the "Board of Directors") by Article VI of
its charter, as heretofore amended and restated (which, as hereafter
restated or amended from time to time, are together with these Articles
Supplementary herein called the "Articles"), the Board of Directors has, by
resolution, duly designated and reclassified [ ] shares of the common
stock of the Corporation into a class designated Class B Exchangeable
Common Stock and has provided for the issuance of such class.
SECOND: The preferences, rights, voting powers, restrictions,
limitations as to distributions, qualifications and terms and conditions of
redemption of the shares of such class of common stock, which upon any
restatement of the Articles shall be included as part of Article VI of the
Articles, are as follows:
CLASS B EXCHANGEABLE COMMON STOCK
1 Designation and Number. A class of Common Stock of the
Corporation, designated the "Class B Exchangeable Common Stock" (the "Class
B Common"), is hereby established. The number of shares of the Class B
Common shall be [ ].
2 Distributions.
(a) For any quarterly period, holders of the shares of Class B
Common shall be entitled to receive, if, when and as authorized by the
Board of Directors out of funds legally available for the payment of
distributions, cash distributions in an amount per share equal to the Class
B Dividend Amount. Distributions on the Class B Common, if authorized,
shall be payable quarterly in arrears on January 31, April 30, July 31 and
October 31 of each year or, if not a Business Day, the next succeeding
Business Day, commencing _______, 1999 (each, a "Distribution Payment
Date"). Distributions will be payable to holders of record as they appear
in the stock transfer records of the Corporation at the close of business
on the applicable record date, which shall be such date designated by the
Board of Directors of the Corporation for the payment of distributions that
is not more than 30 nor less than 10 days prior to such Distribution
Payment Date (each, a "Distribution Payment Record Date").
(b) No distributions on the Class B Common shall be authorized
by the Board of Directors of the Corporation or be paid or set apart for
payment by the Corporation at such time as the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness, prohibits such authorization, payment or setting apart for
payment or provides that such authorization, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or if
such authorization or payment shall be restricted or prohibited by law.
(c) Distributions on the Class B Common will be noncumulative.
If the Board of Directors of the Corporation does not authorize a dividend
on the Class B Common payable on any Distribution Payment Date while any
Class B Common is outstanding, then holders of the Class B Common will have
no right to receive a distribution for that Distribution Payment Date, and
the Corporation will have no obligation to pay a distribution for that
Distribution Payment Date, whether or not distributions are declared and
paid for any future Distribution Payment Date with respect to either the
Common Stock, the preferred stock, par value $0.01 per share, of the
Corporation or any other Capital Stock.
(d) No distributions, whether in cash, securities or property,
will be authorized or paid or set apart for payment to holders of Common
Stock for any quarterly period unless for each share of Class B Common
outstanding, a distribution equal to the Class B Dividend Amount with
respect to such period has been or contemporaneously is authorized and paid
or authorized and a sum sufficient for the payment thereof is set apart for
such payment to holders of the Class B Common for the then current
distribution period. No interest, or sum of money in lieu of interest,
shall be payable in respect of any distribution payment or payments on
Class B Common which may be in arrears.
(e) Subject to the rights and preferences of other classes or
series of Capital Stock, the Corporation, at its election and as determined
in the sole discretion of the Board of Directors of the Corporation, may
authorize and pay a distribution to holders of Class B Common in excess of
the Class B Dividend Amount.
(f) Shares of Class B Common shall not entitle the holders
thereof to receive any distribution made in respect of Common Stock.
3 Liquidation.
Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation (referred to herein as a
"liquidation"), the holders of the Class B Common will have no liquidation
preference, but will be entitled to share ratably (treating each Class B
Common share as the equivalent of that number of shares of Common Stock
into which it may then be exchanged) in any distribution or payment made to
holders of Common Stock.
4 Redemption.
Shares of Class B Common will not be redeemable; provided,
however, that the foregoing shall not prohibit the Corporation from
repurchasing shares of Class B Common from any holder if and to the extent
such holder agrees to sell such shares.
5 Voting Rights.
Holders of Class B Common shall have the right to vote on all
matters submitted to a vote of the holders of Common Stock; holders of
Class B Common and Common Stock shall vote together as a single class. In
any such vote, each holder of Class B Common shall be entitled to one vote
with respect to each share of Class B Common held by such holder.
6 Exchange at Holder's Election.
(a) Subject to Section 10, shares of Class B Common will be
exchangeable at any time, at the option of the holders thereof, into Common
Stock at a rate of one share of Common Stock per share of Class B Common,
subject to adjustment as described below (the "Exchange Rate"); provided,
however, that the right of a holder to exchange shares of Class B Common
for which the Corporation has mailed an Exchange Notice (as defined below)
will terminate at the close of business on the fifth Business Day prior to
the Exchange Date (as defined below).
(b) To exercise the exchange right, the holder of Class B
Common to be exchanged shall surrender the certificate representing such
Class B Common, duly endorsed or assigned to the Corporation or in blank,
at the principal office of the Transfer Agent accompanied by written notice
to the Corporation that such holder elects to exchange such Class B Common.
Unless the shares issuable on exchange are to be issued in the same name as
the name in which such Class B Common is registered, in which case the
Corporation shall bear the related taxes, each share surrendered for
exchange shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
(c) Each exchange consummated pursuant to this Section 6 shall
be deemed to have been effected immediately prior to the close of business
on the date on which the certificates representing shares of Class B Common
shall have been surrendered and such notice (and if applicable, payment of
an amount equal to the distribution payable on such shares) received by the
Corporation as aforesaid, and the person or persons in whose name or names
any certificate or certificates representing shares of Common Stock shall
be issuable upon such exchange shall be deemed to have become the holder or
holders of record of the shares represented thereby at such time on such
date, and such exchange shall be at the Exchange Rate in effect at such
time and on such date unless the stock transfer records of the Corporation
shall be closed on that date, in which event such person or persons shall
be deemed to have become such holder or holders of record at the close of
business on the next succeeding day on which such stock transfer records
are open, but such exchange shall be at the Exchange Rate in effect on the
date on which such shares have been surrendered and such notice received by
the Corporation.
(d) Holders of shares of Class B Common at the close of
business on a Distribution Payment Record Date shall be entitled to receive
and retain the distribution payable on such shares on the corresponding
Distribution Payment Date notwithstanding the exchange of such shares
following such Distribution Payment Record Date and on or prior to such
Distribution Payment Date. Except as provided above, the Corporation shall
make no payment or allowance for unpaid distributions, whether or not in
arrears, on exchanged shares or for distribution on the Common Stock that
is issued upon such exchange.
As promptly as practicable after the surrender of certificates
representing Class B Common as aforesaid, the Corporation shall issue and
shall deliver at such office to such holder, or on his written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the exchange of such shares in accordance with the provisions
of this Section 6, and any fractional interest in respect of a share of
Common Stock arising upon such conversion shall be settled as provided in
Section 8.
7 Exchange at Corporation's Option.
(a) The Class B Common shall not be exchangeable by the
Corporation prior to the end of the 54-month period commencing with the
Class B Issue Date. Subject to Section 10, each share of Class B Common
(and each share of Class B Excess Common (as defined below)) will be
exchangeable at any time after the fifty-four (54) month period immediately
following the Class B Issue Date, at the option of the Corporation, into
Common Stock at the Exchange Rate, plus the amounts indicated in Section
7(e). If fewer than all of the outstanding shares of Class B Common are to
be exchanged, the shares to be exchanged shall be determined pro rata or by
lot or in such other manner as prescribed by the Board of Directors of the
Corporation to be equitable. If fewer than all the shares of Class B
Common represented by any certificate are exchanged, then new certificates
representing the unredeemed shares shall be issued without cost to the
holder thereof.
(b) At least 30 days, but no more than 60 days, prior to a
date fixed for exchange of some or all of the Class B Common (the "Exchange
Date") in accordance with this Section 7, written notice (the "Exchange
Notice") shall be given by first class mail, to each holder of record on a
date no more than three business days prior to the mailing date of such
notice at such holder's address as it appears in the stock transfer records
of the Corporation; provided, however, neither failure to give such notice
nor any deficiency therein shall affect the validity of the procedure for
the exchange of any share of Class B Common to be exchanged. The Exchange
Notice shall include the following information:
(i) the Exchange Rate;
(ii) the number of shares of Class B Common to be exchanged
and, if fewer than all the shares held by such holders are to be exchanged,
the number of such shares to be exchanged from such holder;
(iii) the Exchange Date;
(iv) the manner in which the holder is to surrender to the
Corporation or the Transfer Agent, the certificate or certificates
representing the shares of Class B Common to be exchanged;
(v) that the holder's right to elect to exchange such
holder's Class B Common for Common Stock will terminate on the fifth
Business Day prior to the Exchange Date; and
(vi) that dividends on the shares of Class B Common to be
exchanged shall cease on the Exchange Date unless the Company defaults in
the issuance of the Common Stock issuable upon exchange of such Class B
Common.
(c) Each holder shall surrender the certificate or
certificates representing such shares of Class B Common so exchanged to the
Corporation or the Transfer Agent, duly endorsed (or otherwise in proper
form for transfer, as determined by the Corporation), in the manner and at
the place designated in the Exchange Notice, and on the Exchange Date the
number of full shares of Common Stock issuable upon the exchange of such
shares of Class B Common shall be payable to the holder whose name appears
on such certificate or certificates as the owner thereof, and each
surrendered certificate shall be canceled and retired.
(d) On or after the Exchange Date, unless the Corporation
defaults in the issuance of the shares of Common Stock as described above
and except as provided in Section 7(e), (i) all distributions on any Class
B Common so called for exchange shall cease on the Exchange Date, and all
rights of the holders of such shares of Class B Common as holders of Class
B Common shall terminate with respect thereto on the Exchange Date, other
than the right to receive the shares of Common Stock issuable upon exchange
thereof, (ii) the shares of Class B Common called for exchange will not be
transferred (except with the consent of the Corporation) on the
Corporation's stock transfer records, and (iii) such shares shall no longer
be deemed outstanding for any purpose whatsoever. Until shares of Class B
Common Stock called for exchange are surrendered in the manner described in
the Exchange Notice, no shares of Common Stock will be issued in respect
thereof. No provision will be made in respect of distributions payable on
such Common Stock prior to the Exchange Date.
(e) If the Exchange Date falls after a Distribution Payment
Record Date and on or prior to the corresponding Distribution Payment Date,
then each holder of Class B Common at the close of business on such
Distribution Payment Record Date shall be entitled to the distribution
payable on such shares on the corresponding Distribution Payment Date
notwithstanding the exchange of such shares prior to such Distribution
Payment Date.
(f) Following the Exchange Date, the Corporation shall pay all
distributions payable on the Common Stock to be exchanged for the Class B
Common with a Distribution Payment Record Date following the Exchange Date
notwithstanding the exchange of certificates representing such shares after
such the Distribution Payment Record Date.
8 No Fractional Shares.
No fractional shares of Common Stock shall be issued upon
exchange of Class B Common. Instead of any fractional share of Common
Stock that would otherwise be deliverable upon the exchange of a share of
Class B Common, the Corporation shall pay to the holder of such share an
amount in cash in respect of such fractional interest based upon the
Current Market Price of a share of Common Stock on the Trading Day
immediately preceding the date of exchange. If more than one share of
Class B Common shall be surrendered for exchange at one time by the same
holder, the number of full shares of Common Stock issuable upon exchange
thereof shall be computed on the basis of the aggregate number of shares of
Class B Common so surrendered.
9 Exchange Rate Adjustments.
(a) The Exchange Rate shall be adjusted from time to time as
follows:
(i) If the Corporation shall after the date on which shares
of Class B Common are first issued (the "Class B Issue Date") (A) pay or
make a distribution to holders of Common Stock in the form of Common Stock,
(B) subdivide its outstanding Common Stock into a greater number of shares,
(C) combine its outstanding Common Stock into a smaller number of shares or
(D) issue any equity securities by reclassification of its Common Stock
(other than any reclassification by way of merger or binding share exchange
that is subject to Section 9(b)), then the Exchange Rate in effect at the
opening of business on the day following the record date for the
determination of stockholders entitled to receive such distribution or at
the opening of business on the day following the day on which such
subdivision, combination or reclassification becomes effective, as the case
may be, shall be adjusted so that the holder of any share of Class B Common
thereafter surrendered for exchange shall be entitled to receive the number
of shares of Common Stock and other equity securities issued by
reclassification of Common Stock that such holder would have owned or have
been entitled to receive after the happening of any of the events described
above had such shares been exchanged immediately prior to the record date
in the case of a distribution or the effective date in the case of a
subdivision, combination or reclassification. An adjustment made pursuant
to this subparagraph (i) shall become effective immediately after the
opening of business on the day following such record date (except as
provided in Section 9(e)) in the case of a distribution and shall become
effective immediately after the opening of business on the day next
following the effective date in the case of a subdivision, combination or
reclassification.
(ii) If the Corporation shall issue after the Class B Issue
Date rights, options or warrants to all holders of Common Stock entitling
them (for a period expiring within 45 days after the record date for
determination of stockholders entitled to receive such rights, options or
warrants) to subscribe for or purchase shares of Common Stock (or
securities convertible into or exchangeable for Common Stock) at a price
per share less than the Fair Market Value per share of Common Stock on the
record date for the determination of stockholders entitled to receive such
rights, options or warrants, then the Exchange Rate in effect at the
opening of business on the day following such record date shall be adjusted
to equal the amount determined by multiplying (I) the Exchange Rate in
effect immediately prior to the opening of business on the day following
the record date fixed for such determination by (II) a fraction, the
numerator of which shall be the sum of (A) the number of shares of Common
Stock outstanding on the close of business on the record date fixed for
such determination and (B) the number of additional shares of Common Stock
offered for subscription or purchase pursuant to such rights, options or
warrants and the denominator of which shall be the sum of (A) the number of
shares of Common Stock outstanding on the close of business on the record
date fixed for such determination and (B) the number of shares that the
aggregate proceeds to the Corporation from the exercise of such rights,
options or warrants for Common Stock would purchase at such Fair Market
Value. Such adjustment shall become effective immediately after the
opening of business on the day following such record date (except as
provided in Section 9(e)). In determining whether any rights, options or
warrants entitle the holders of Common Stock to subscribe for or purchase
Common Stock at less than the Fair Market Value, there shall be taken into
account any consideration received by the Corporation upon issuance and
upon exercise of such rights, options or warrants, with the value of such
consideration, if other than cash, to be determined by the Board of
Directors of the Corporation.
(iii) If the Corporation shall distribute to all holders of
its Common Stock any equity securities of the Corporation (other than
Common Stock) or evidences of its indebtedness or assets (excluding cash
distributions and those rights, options and warrants referred to in and
treated under subparagraph (ii) above), then the Exchange Rate shall be
adjusted so that it shall equal the amount determined by multiplying (I)
the Exchange Rate in effect immediately prior to the close of business on
the record date fixed for the determination of stockholders entitled to
receive such distribution by (II) a fraction, the numerator of which shall
be the Fair Market Value per share of Common Stock on the record date for
such determination and the denominator of which shall be the Fair Market
Value per share of Common Stock on the record date for such determination
less the then fair market value (as determined by the Board of Directors of
the Corporation, whose determination shall be conclusive) of the portion of
the equity securities, evidences of indebtedness or assets so distributed
applicable to one share of Common Stock. Such adjustment shall become
effective immediately at the opening of business on the day following such
record date (except as provided in Section 9(e)). For the purposes of this
subparagraph (iii), the distribution of equity securities, evidences of
indebtedness or assets which are distributed not only to the holders of
Common Stock on the record date fixed for the determination of stockholders
entitled to such distribution, but also are distributed with each share of
Common Stock delivered to a person exchanging a share of Class B Common at
any time after such record date, shall not require an adjustment of the
Exchange Rate pursuant to this subparagraph (iii), provided that on the
date, if any, on which a person exchanging a share of Class B Common would
no longer be entitled to receive such equity securities, evidences of
indebtedness or assets with a share of Common Stock (other than as a result
of the termination of all such equity securities, evidences of indebtedness
or assets), a distribution of such equity securities, evidences of
indebtedness or assets shall be deemed to have occurred, and the Exchange
Rate shall be adjusted as provided in this subparagraph (iii) (and such day
shall be deemed to be "the record date fixed for the determination of the
stockholders entitled to receive such distribution" and the "record date"
within the meaning of the two preceding sentences).
(iv) The Exchange Rate may be further adjusted from time to
time as described in this subparagraph (iv); provided, however, that the
Exchange Rate as so adjusted shall only be applicable in the event that the
exchange of Class B Common is effected pursuant to Section 6 and then, only
to shares of Class B Common surrendered for exchange in accordance with
Section 6(b); and all adjustments described in this subparagraph (iv) shall
be disregarded in the event of any exchange pursuant to Section 7. If
during any quarter of any Class B Year, the total distributions paid on a
share of Class B Common for such quarter and the immediately prior quarter
is less than the sum of (x) 1/4th of the Unadjusted Class B Dividend Amount
applicable to the current quarter plus (y) 1/4th of the Unadjusted Class B
Dividend Amount applicable to the immediately prior quarter, then the
Exchange Rate thereafter shall be subject to adjustment as follows. If at
the time the exchange option is exercised pursuant to Section 6:
(A) the Exchange Consideration Amount is equal to or greater
than $27.50, then no additional adjustment is required;
(B) the Exchange Consideration Amount is less than $27.50, but
equal to or greater than $22.00, then the Exchange Rate will be
multiplied by the quotient of (I) $27.50 divided by (II) the Exchange
Consideration Amount.
(C) the Exchange Consideration Amount is less than $22.00,
then the Exchange Rate will be multiplied by 1.25.
(v) No adjustment in the Exchange Rate shall be required
other than by reason of Section 9(a)(iv) unless such adjustment would
require a cumulative increase or decrease of at least 1% in the Exchange
Rate; provided, however, that any adjustments that by reason of this
subparagraph (v) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment until made; and provided,
further, that any adjustment shall be required and made in accordance with
the provisions of this Section 9 (other than this subparagraph (v)) not
later than such time as may be required in order to preserve the tax-free
nature of a distribution to the holders of Common Stock. Notwithstanding
any other provisions of this Section 9, the Corporation shall not be
required to make any adjustment of the Exchange Rate for the issuance of
any Common Stock pursuant to any plan providing for the reinvestment of
distributions or interest payable on securities of the Corporation and the
investment of additional optional amounts in Common Stock under such plan.
All calculations under this Section 9 shall be made to the nearest cent
(with $.005 being rounded upward) or to the nearest one-tenth of a share
(with .05 of a share being rounded upward), as the case may be. Anything
in this subsection (a) to the contrary notwithstanding, the Corporation
shall be entitled, to the extent permitted by law, to make such increases
in the Exchange Rate, in addition to those required by this subsection (a),
as it in its discretion shall determine to be advisable in order that any
share distributions, subdivision, reclassification or combination of
shares, distribution of rights, options or warrants to purchase shares or
securities, or a distribution of other assets (other than cash
distributions) hereafter made by the Corporation to its stockholders shall
not be taxable.
(b) Except as otherwise provided for in Section 9(a)(i), if
the Corporation shall be a party to any transaction (including, without
limitation, a merger, consolidation, statutory share exchange, tender offer
for all or substantially all of the Common Stock, sale or transfer of all
or substantially all of the Corporation's assets or recapitalization of the
Common Stock) (each of the foregoing being referred to herein as a
"Transaction"), in each case as a result of which Common Stock shall be
converted into the right to receive shares, stock, securities or other
property (including cash or any combination thereof), the Corporation (or
its successor in such Transaction) shall make appropriate provision so that
each share of Class B Common, if not converted into the right to receive
shares, stock, securities or other property in connection with such
Transaction in accordance with the third to last sentence of this
subsection (b) shall thereafter be exchangeable into the kind and amount of
shares, stock, securities and other property (including cash or any
combination thereof) receivable upon the consummation of such Transaction
by a holder of that number of shares of Common Stock into which one share
of Class B Common was convertible immediately prior to such Transaction,
assuming such holder of Common Stock (i) is not a Person with which the
Corporation consolidated or into which the Corporation merged or which
merged into the Corporation or to which such sale or transfer was made, as
the case may be (a "Constituent Person"), or an affiliate of a Constituent
Person and (ii) failed to exercise his rights of the election, if any, as
to the kind or amount of shares, stock, securities and other property
(including cash or any combination thereof) receivable upon such
Transaction (each, a "Non-Electing Share") (provided that if the kind and
amount of shares, stock, securities and other property (including cash or
any combination thereof) receivable upon consummation of such Transaction
is not the same for each Non-Electing Share, the kind and amount of shares,
stock, securities and other property (including cash or any combination
thereof) receivable upon such Transaction by each Non-Electing Share shall
be deemed to be the kind and amount so receivable per share by a plurality
of the Non-Electing Shares). The Corporation shall not be a party to any
Transaction in which any share of Class B Common is converted into the
right to receive shares, stock, securities or other property (including
cash or any combination thereof) with an aggregate value (as determined by
the Board of Directors in good faith, whose determination shall be
conclusive) less than that receivable by the number of shares of Common
Stock into which shares of Class B Common were exchangeable immediately
prior to such Transaction. The Corporation shall not be a party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this subsection (b), and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of the Class B Common that will contain
provisions enabling holders of Class B Common that remains outstanding
after such Transaction to exchange their Class B Common into the
consideration received by holders of Common Stock at the Exchange Rate in
effect immediately prior to such Transaction. The provisions of this
subsection (b) shall similarly apply to successive Transactions.
(c) If:
(i) the Corporation shall declare a distribution on the
Common Stock (other than cash distributions which do not constitute
extraordinary dividends) or there shall be a reclassification, subdivision
or combination of the Common Stock; or
(ii) the Corporation shall grant to the holders of the Common
Stock of rights, options or warrants to subscribe for or purchase Common
Stock at less than Fair Market Value; or
(iii) the Corporation shall enter into a Transaction;
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; or
(v) there shall occur the circumstances described in clause
(a)(iv) of Section 9 that would cause the Exchange Rate to be adjusted,
then the Corporation shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of the Class B Common at their
addresses as shown on the stock transfer records of the Corporation, as
promptly as possible, but at least 15 days prior to the applicable date
hereinafter specified, a notice stating (i) the date on which a record is
to be taken for the purpose of such distribution or rights, options or
warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such distribution or
rights, options or warrants are to be determined or (ii) the date on which
such reclassification, subdivision, combination, Transaction or
liquidation, dissolution or winding up is expected to become effective, and
the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property, if any, deliverable upon such reclassification, subdivision,
combination, Transaction or liquidation, dissolution or winding up.
Failure to give or receive such notice or any defect therein shall not
affect the legality or validity of the proceedings described in this
Section 9.
(d) Whenever the Exchange Rate is adjusted as herein provided,
the Corporation shall promptly file with the Transfer Agent an officer's
certificate setting forth the Exchange Rate after such adjustment and
setting forth a brief statement of the facts requiring such adjustment,
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such adjustment of
the Exchange Rate setting forth the adjusted Exchange Rate and the
effective date such adjustment becomes effective and shall mail such notice
of such adjustment of the Exchange Rate to the holder of each share of
Class B Common at such holder's last address as shown on the stock
transfer records of the Corporation.
(e) In any case in which Section 9(a) provides that an
adjustment shall become effective on the day following the record date for
an event, the Corporation may defer until the occurrence of such event (i)
issuing to the holder of any share of Class B Common converted after such
record date and before the occurrence of such event the additional shares
of Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the shares of Common Stock issuable
upon such conversion before giving effect to such adjustment and (ii)
fractionalizing any share of Class B Common and/or paying to such holder
any amount of cash in lieu of any fraction pursuant to Section 8.
(f) There shall be no adjustment of the Exchange Rate in case
of the issuance of any equity securities of the Corporation in a
reorganization, acquisition or other similar transaction except as
specifically set forth in this Section 9. If any action or transaction
would require adjustment of the Exchange Rate pursuant to more than one
subsection of Section 9(a), only one adjustment shall be made, and such
adjustment shall be the amount of adjustment that has the highest absolute
value.
(g) If the Corporation shall take any action affecting the
Common Stock, other than action described in this Section 9, that in the
opinion of the Board of Directors of the Corporation would materially
adversely affect the exchange rights of the holders of the Class B Common,
the Exchange Rate for the Class B Common shall be adjusted, to the extent
permitted by law, in such manner, if any, and at such time, as the Board of
Directors of the Corporation, in its sole discretion, determines to be
equitable in the circumstances.
(h) The Corporation shall at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Stock, for the purpose of effecting any
exchange of the Class B Common, the full number of shares of Common Stock
deliverable upon the exchange of all outstanding shares of Class B Common
not theretofore exchanged. For purposes of this subsection (h), the number
of shares of Common Stock that shall be deliverable upon the exchange of
all outstanding shares of Class B Common shall be computed as if at the
time of computation all such outstanding shares were held by a single
holder.
The Corporation covenants that any shares of Common Stock issued
upon exchange of the Class B Common shall be validly issued, fully paid and
non-assessable.
The Corporation shall list the Common Stock required to be
delivered upon exchange of the Class B Common, prior to such delivery, upon
each national securities exchange, if any, upon which the outstanding
Common Stock is listed at the time of such delivery.
Prior to the delivery of any securities that the Corporation
shall be obligated to deliver upon exchange of the Class B Common, the
Corporation shall comply with all federal and state laws and regulations
thereunder requiring the registration of such securities with, or any
approval of or consent to the delivery thereof, by any governmental
authority.
(i) The Corporation shall pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery
of Common Stock or other securities or property on exchange of the Class B
Common pursuant hereto; provided, however, that the Corporation shall not
be required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of Common Stock or other securities or
property in a name other than that of the record holder of the Class B
Common to be exchanged, and no such issue or delivery shall be made unless
and until the person requesting such issue or delivery has paid to the
Corporation the amount of any such tax or established, to the reasonable
satisfaction of the Corporation, that such tax has been paid.
10 Ownership Limitations. Notwithstanding Article VII of the
Articles, the provisions of this Section 10 shall apply with respect to the
limitations on the ownership and acquisition of shares of Class B Common.
(a) Restriction on Ownership and Transfer.
(i) Except as provided in Section 10(h), no Person shall
Beneficially Own or Constructively Own any shares of Class B Common such
that such Person would Beneficially Own or Constructively Own Capital Stock
in excess of the Ownership Limit;
(ii) Except as provided in Section 10(h), any Transfer
(whether or not such Transfer is the result of a transaction entered into
through the facilities of the New York Stock Exchange, Inc. (the "NYSE"))
that, if effective, would result in any Person Beneficially Owning Class B
Common in excess of the Ownership Limit shall be void ab initio as to the
Transfer of such Class B Common which would be otherwise Beneficially Owned
by such Person in excess of the Ownership Limit; and the intended
transferee shall acquire no rights in such Class B Common;
(iii) Except as provided in Section 10(h), any Transfer
(whether or not such Transfer is the result of a transaction entered into
through the facilities of the NYSE) that, if effective, would result in any
Person Constructively Owning Class B Common in excess of the Ownership
Limit shall be void ab initio as to the Transfer of such Class B Common
which would be otherwise Constructively Owned by such Person in excess of
the Ownership Limit; and the intended transferee shall acquire no rights in
such Class B Common; and
(iv) Notwithstanding any other provisions contained in this
Section 10, any Transfer (whether or not such Transfer is the result of a
transaction entered into through the facilities of the NYSE) or other event
that, if effective, would result in the Corporation being "closely held"
within the meaning of Section 856(h) of the Code, or would otherwise result
in the Corporation failing to qualify as a REIT (including, but not limited
to, a Transfer or other event that would result in the Corporation owning
(directly or Constructively) an interest in a tenant that is described in
Section 856(d)(2)(B) of the Code if the income derived by the Corporation
from such tenant would cause the Corporation to fail to satisfy any of the
gross income requirements of Section 856(c) of the Code) shall be void ab
initio as to the Transfer of the Class B Common or other event which would
cause the Corporation to be "closely held" within the meaning of Section
856(h) of the Code or would otherwise result in the Corporation failing to
qualify as a REIT; and the intended transferee or owner or Constructive or
Beneficial Owner shall acquire or retain no rights in such Class B Common.
(b) Conversion Into and Exchange For Class B Excess Common.
If, notwithstanding the other provisions contained in this Section 10, at
any time after the date of the Class B Issue Date, there is a purported
Transfer (whether or not such Transfer is the result of a transaction
entered into through the facilities of the NYSE), change in the capital
structure of the Corporation or other event such that one or more of the
restrictions on ownership and transfers described in Section 10(a), above,
has been violated, then the Class B Common being Transferred (or in the
case of an event other than a Transfer, the Class B Common owned or
Constructively Owned or Beneficially Owned or, if the next sentence
applies, the Class B Common identified in the next sentence) which would
cause the restriction on ownership or transfer to be violated (rounded up
to the nearest whole share) shall be automatically converted into an equal
number of shares of Class B Common Excess Stock ("Class B Excess Common").
If at any time of such purported Transfer any of the shares of the Class B
Common are then owned by a depositary to permit the trading of beneficial
interests in fractional shares of Class B Common, then shares of Class B
Common that shall be converted to Class B Excess Common shall be first
taken from any Class B Common that is not in such depositary that is
Beneficially Owned or Constructively Owned by the Person whose Beneficial
Ownership or Constructive Ownership would otherwise violate the
restrictions of Section 10(a) prior to converting any shares in such
depositary. Any conversion pursuant to this subparagraph shall be
effective as of the close of business on the Business Day prior to the date
of such Transfer or other event.
(c) Remedies For Breach. If the Board of Directors of the
Corporation or its designee shall at any time determine in good faith that
a Transfer or other event has taken place in violation of Section 10(a) or
that a Person intends to Transfer or acquire, has attempted to Transfer or
acquire or may Transfer or acquire direct ownership, beneficial ownership
(determined without reference to any rules of attribution), Beneficial
Ownership or Constructive Ownership of any shares of the Corporation in
violation of Section 10(a), the Board of Directors of the Corporation or
its designee shall take such action as it deems advisable to refuse to give
effect to or to prevent such Transfer, acquisition or other event,
including, but not limited to, causing the Corporation to purchase such
shares for Fair Market Value upon the terms and conditions specified by the
Board of Directors of the Corporation in its sole discretion, refusing to
give effect to such Transfer, acquisition or other event on the books of
the Corporation or instituting proceedings to enjoin such Transfer,
acquisition or other event; provided, however, that any Transfer or
acquisition (or, in the case of events other than a Transfer or
acquisition, ownership or Constructive Ownership or Beneficial Ownership)
in violation of Section 10(a) shall automatically result in the conversion
described in Section 10(b), irrespective of any action (or non-action) by
the Board of Directors of the Corporation.
(d) Notice of Restricted Transfer. Any Person who acquires or
attempts to acquire or Beneficially Owns or Constructively Owns shares of
Class B Common in excess of the aforementioned limitations, or any Person
who is or attempts to become a transferee such that Class B Excess Common
results under the provisions of these Articles, shall immediately give
written notice or, in the event of a proposed or attempted Transfer, give
at least 15 days prior written notice to the Corporation of such event and
shall provide to the Corporation such other information as it may request
in order to determine the effect of any such Transfer on the Corporation's
status as a REIT.
(e) Owners Required To Provide Information. From and after
the Class B Issue Date, each Person who is a Beneficial Owner or
Constructive Owner of Class B Common and each Person (including the
stockholder of record) who is holding Class B Common for a Beneficial Owner
or Constructive Owner shall provide to the Corporation such information
with respect to the direct, indirect and constructive ownership of Class B
Common as the Corporation may request, in good faith, in order to comply
with the provisions of the Code applicable to REITs, to comply with the
requirements of any taxing authority or governmental agency or to determine
such compliance.
(f) Remedies Not Limited. Nothing contained in this Section
10 (but subject to Section 10(l)) shall limit the authority of the Board of
Directors of the Corporation to take such other action as it deems
necessary or advisable to protect the Corporation and the interests of its
stockholders by preservation of the Corporation's status as a REIT.
(g) Ambiguity. In the case of an ambiguity in the application
of any of the provisions of this Section 10, including any definition
contained in Section 11, the Board of Directors of the Corporation shall
have the power to determine the application of the provisions of this
Section 10 with respect to any situation based on the facts known to it
(subject, however, to the provisions of Section 10(l)).
(h) Exceptions.
(i) Subject to Section 10(a)(iv), the Board of Directors of
the Corporation, in its sole and absolute discretion, with the advice of
the Corporation's tax counsel, may exempt a Person from the limitation on a
Person Beneficially Owning Class B Common in excess of the Ownership Limit
if such Person is not an individual for purposes of Section 542(a)(2) of
the Code and the Board of Directors obtains such representations and
undertakings from such Person as are reasonably necessary to ascertain
that no individual's Beneficially Owning Class B Common will violate the
Ownership Limit and such Person agrees that any violation of such
representations or undertaking (or other action which is contrary to the
restrictions contained in this Section 10) or attempted violation will
result in such Class B Common Beneficially Owned in excess of the Ownership
Limit being exchanged for Class B Excess Common in accordance with Section
10(b).
(ii) Subject to Section 10(a)(iv), the Board of Directors of
the Corporation, in its sole and absolute discretion, with advice of the
Corporation's tax counsel, may exempt a Person from the limitation on a
Person Constructively Owning Class B Common in excess of the Ownership
Limit if such Person does not and represents that it will not own, directly
or constructively (by virtue of the application of Section 318 of the Code,
as modified by Section 856(d)(5) of the Code), more than a 9% interest (as
set forth in Section 856(d)(2)(B) of the Code) in a tenant of the
Corporation and the Board of Directors obtains such representations and
undertakings from such Person as are reasonably necessary to ascertain this
fact and such Person agrees that any violation or attempted violation will
result in such Class B Common Constructively Owned in excess of the
Ownership Limit being exchanged for Excess Stock in accordance with Section
10(b).
(iii) Prior to granting any exception pursuant to Section
10(h)(i) or 10(h)(ii), the Board of Directors of this Corporation may
require a ruling from the IRS, or an opinion of counsel, in either case in
form and substance satisfactory to the Board of Directors, in its sole
discretion as it may deem necessary or advisable in order to determine or
ensure the Corporation's organization and operation in conformity with the
requirements for qualification as a REIT under the Code; provided, however,
that obtaining a favorable ruling or opinion shall not be required for the
Board of Directors to grant an exception hereunder.
(i) Increase in Ownership Limit. Notwithstanding anything
herein to the contrary, Article VII, Section 9 of the charter of the
Corporation shall apply to this Section 10.
(j) Legend. Each certificate for Class B Common shall bear
substantially the following legend:
"The Corporation will furnish to any stockholder, on request
and without charge, a full statement of the information
required by Section 2-211(d) of the Corporations and
Associations Article of the Annotated Code of Maryland with
respect to the designations and any preferences, conversion
and other rights, voting powers, restrictions, limitations
as to dividends and other distributions, qualifications, and
terms and conditions of redemption of the shares of each
class of stock which the Corporation has authority to issue
and, if the Corporation is authorized to issue any preferred
or special class in series, (i) the differences in the
relative rights and preferences between the shares of each
series to the extent set, and (ii) the authority of the
Board of Directors to set such rights and preferences of
subsequent series. The following summary does not purport
to be complete and is subject to and qualified in its
entirety by reference to the charter of the Corporation
including all amendments and supplements thereto (the
"Charter"), a copy of which, including restrictions on
transfer, will be sent without charge to each stockholder
who so requests. Such request must be made to the Secretary
of the Corporation at its principal office or to the
Transfer Agent. All capitalized terms in this legend have
the meanings defined in the Charter.
The securities represented by this certificate are subject to
restrictions on ownership and transfer for the purpose of the Corporation's
maintenance of its status as a real estate investment trust under the
Internal Revenue Code of 1986, as amended. Except as otherwise provided
pursuant to the Charter of the Corporation, no Person may Beneficially Own
or Constructively Own any shares of Class B Common such that such Person
would Beneficially Own or Constructively Own Common Equity in excess of 9%
in value of the aggregate of the outstanding shares of Common Equity of the
Corporation. Any Person who acquires or attempts to acquire or
Beneficially Owns or Constructively Owns shares of Class B Common in excess
of the aforementioned limitation, or any Person who is or attempts to
become a transferee such that Class B Excess Common would result under the
provisions of the Charter, shall immediately give written notice or, in the
event of a proposed or attempted Transfer, give at least 15 days prior
written notice to the Corporation of such event and shall provide to the
Corporation such other information as it may request in order to determine
the effect of any such Transfer on the corporation's status as a REIT.
Transfers in violation of the restrictions described above shall be void ab
initio. If the restrictions on ownership and transfer are violated, the
securities represented hereby will be designated and treated as shares of
Class B Excess Common which will be transferred, by operation of law, to
the trustee of a trust for the exclusive benefit of one or more charitable
organizations.
(k) Severability. If any provision of this Section 10 or any
application of any such provision is determined to be invalid by any
federal or state court having jurisdiction, the validity of the remaining
provisions shall not be affected and other applications of such provision
shall be affected only to the extent necessary to comply with the
determination of such court.
(l) Class B Excess Common.
(i) Ownership In Trust. Upon any purported Transfer
(whether or not such Transfer is the result of a transaction entered into
through the facilities of the NYSE) that results in the issuance of Class B
Excess Common pursuant to Section 10(b), such Class B Excess Common shall
be deemed to have been transferred to the Trustee of a Trust for the
exclusive benefit of one or more Charitable Beneficiaries. The Trustee
shall be appointed by the Corporation, and shall be a person unaffiliated
with the Corporation, any Purported Beneficial Transferee or any Purported
Record Transferee. By written notice to the Trustee, the Corporation shall
designate one or more non-profit organizations to be the Charitable
Beneficiary(ies) of the interest in the Trust representing the Class B
Excess Common such that (a) the shares of Class B Common from which the
shares of Class B Excess Common held in the Trust were so converted would
not violate the restrictions set forth in paragraph (a) of this Section 10
in the hands of such Charitable Beneficiary and (b) each Charitable
Beneficiary is an organization described in Sections 170(b)(1)\(a),
170(c)(2) and 501(c)(3) of the Code. The Trustee of the Trust will be
deemed to own the Class B Excess Common for the benefit of the Charitable
Beneficiary on the date of the purported Transfer or other event that
results in Class B Excess Common pursuant to paragraph (b) of this Section
10. Class B Excess Common so held in trust shall be issued and outstanding
shares of stock of the Corporation. The Purported Record Transferee shall
have no rights in such Class B Excess Common except the right to designate
a transferee of such Class B Excess Common upon the terms specified in
Section 10(l)(v). The Purported Beneficial Transferee shall have no rights
in such Class B Excess Common except as provided in this Section 10.
(ii) Dividend Rights. Class B Excess Common will be
entitled to dividends and distributions authorized and declared with
respect to the Class B Common from which the Class B Excess Common was
converted and will be payable to the Trustee of the Trust in which such
Class B Excess Common is held, for the benefit of the Charitable
Beneficiary. Dividends and distributions will be authorized and declared
with respect to each share of Class B Excess Common in an amount equal to
the dividends and distributions authorized and declared on each share of
Class B Common from which the Class B Excess Common was converted. Any
dividend or distribution paid to a Purported Record Transferee prior to the
discovery by the Corporation that Class B Common has been transferred in
violation of the provisions of this Section 10 shall be repaid by the
Purported Record Transferee to the Trustee upon demand. The Corporation
shall rescind any dividend or distribution authorized and declared but
unpaid as void ab initio with respect to the Purported Record Transferee,
and the Corporation shall pay such dividend or distribution when due to the
Trustee of the Trust for the benefit of the Charitable Beneficiary.
(iii) Conversion Rights. Holders of shares of Class B
Excess Common shall not be entitled to exchange any shares of Class B
Excess Common into shares of Common Stock. Any exchange of shares of Class
B Common for shares of Common Stock made prior to the discovery by the
Corporation that such shares of Class B Common have been converted into
Class B Excess Common shall be void ab initio and the Purported Record
Transferee shall return the shares of Common Stock into which the Class B
Common was exchanged upon demand to the Corporation which shares of Common
Stock shall be exchanged back into Class B Excess Common and deposited into
the Trust. Notwithstanding the foregoing, at any time on or after the
Class B Issue Date, the Corporation may elect to exchange Class B Excess
Common for Common Stock in accordance with Section 7.
(iv) Rights Upon Liquidation. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of, or any
other distribution of all or substantially all of the assets of the
Corporation, each holder of shares of Class B Excess Common shall be
entitled to receive, ratably (treating each Class B Excess Common share as
the equivalent of that number of shares of Common Stock into which it may
then be exchanged by the Corporation pursuant to Section 7) with each other
holder of Class B Common and Class B Excess Common converted from Class B
Common, any distribution or payment made to all holders of Common Stock.
Any liquidation distributions to be distributed with respect to
Class B Excess Common shall be distributed in the same manner as proceeds
from the sale of Class B Excess Common are distributed as set forth in
Section 10(l)(v).
(v) Non-Transferability of Excess Stock. Class B Excess
Common shall not be transferable. In its sole discretion, the Trustee of
the Trust may transfer the interest in the Trust representing shares of
Class B Excess Common to any Person if the shares of Class B Excess Common
would not be Class B Excess Common in the hands of such Person. If such
transfer is made, the interest of the Charitable Beneficiary in the Class B
Excess Common shall terminate and the proceeds of the sale shall be payable
by the Trustee to the Purported Record Transferee and to the Charitable
Beneficiary as herein set forth. The Purported Record Transferee shall
receive from the Trustee the lesser of (i) the price paid by the Purported
Record Transferee for its shares of Class B Common that were converted into
Class B Excess Common or, if the Purported Record Transferee did not give
value for such shares (e.g. the stock was received through a gift, devise
or other transaction), the average closing price for the class of shares
from which such shares of Class B Excess Common were converted for the ten
trading days immediately preceding such sale or gift, and (ii) the price
received by the Trustee from the sale or other disposition of the Class B
Excess Common held in trust. The Trustee may reduce the amount payable to
the Purported Record Transferee by the amount of dividends and
distributions which have been paid to the Purported Record Transferee and
are owed by the Purported Record Transferee to the Trustee pursuant to
Section 10(l)(ii). Any proceeds in excess of the amount payable to the
Purported Record Transferee shall be paid by the Trustee to the Charitable
Beneficiary. Upon such transfer of an interest in the Trust, the
corresponding shares of Class B Excess Common in the Trust shall be
automatically exchanged for an equal number of shares of Class B Common and
such shares of Class B Common shall be transferred of record to the
transferee of the interest in the Trust if such shares of Class B Common
would not be Class B Excess Common in the hands of such transferee. Prior
to any transfer of any interest in the Trust, the Corporation must have
waived in writing its purchase rights under Section 10(l)(vii).
(vi) Voting Rights for Class B Excess Common. Any vote
cast by a Purported Record Transferee of Class B Excess Common prior to the
discovery by the Corporation that Class B Common has been transferred in
violation of the provisions of this Section 10 shall be void ab initio.
While the Class B Excess Common is held in trust, the Purported Record
Transferee will be deemed to have given an irrevocable proxy to the Trustee
to vote the shares of Class B Common which have been converted into shares
of Class B Excess Common for the benefit of the Charitable Beneficiary.
(vii) Purchase Rights in Class B Excess Common.
Notwithstanding the provisions of Section 10(l)(v), shares of Class B
Excess Common shall be deemed to have been offered for sale to the
Corporation, or its designee, at a price per share equal to the lesser of
(i) the price per share in the transaction that required the issuance of
such Class B Excess Common (or, if the Transfer or other event that
resulted in the issuance of Class B Excess Common was not a transaction in
which the Purported Beneficial Transferee gave full value for such Class B
Excess Common, a price per share equal to the Market Price on the date of
the purported Transfer or other event that resulted in the issuance of
Class B Excess Common) and (ii) the Market Price on the date the
Corporation, or its designee, accepts such offer. The Corporation shall
have the right to accept such offer for a period of ninety (90) days after
the later of (i) the date of the Transfer or other event which resulted in
the issuance of such shares of Class B Excess Common and (ii) the date the
Board of Directors determines in good faith that a Transfer or other event
resulting in the issuance of shares of Class B Excess Common has occurred,
if the Corporation does not receive a notice of such Transfer or other
event pursuant to Section 10(d). The Corporation may appoint a special
trustee of the Trust for the purpose of consummating the purchase of Class
B Excess Common by the Corporation. In the event that the Corporation's
actions cause a reduction in the number of shares of Class B Common
outstanding and such reduction results in the issuance of Class B Excess
Common, the Corporation is required to exercise its option to repurchase
such shares of Class B Excess Common if the Beneficial Owner notifies the
Corporation that it is unable to sell its rights to such Class B Excess
Common.
(m) Settlement. Nothing in this Section 10 shall preclude the
settlement of any transaction entered into through the facilities of the
NYSE.
11 Definitions. For purposes of the provisions included in Article
VII of the Articles as a result of the Articles Supplementary adopted and
filed in connection with the designation and reclassification of the Class
B Common:
"Aggregate FFO Growth" shall mean, with respect to any Class B
Year, the fraction (expressed as a percentage), the numerator of which is
the excess, if any, of FFO per share of Common Stock in such Class B Year
over the FFO per share of Common Stock in the Base Year ("Base Year FFO"),
in each case, calculated on a fully diluted basis and the denominator of
which is the Base Year FFO, calculated on a fully diluted basis in
accordance with GAAP; provided however, that for purposes of dilution
calculation, Class B Common Stock and Class B Excess Common will be deemed
converted into Common Stock at then applicable Exchange Rate for an
exchange at the election of a holder pursuant to Section 6.
"Base Year" shall mean the twelve month period ending on the last
day of the calendar quarter in which the Class B Issue Date occurs.
"Base Year Quarterly Dividend" shall mean $.3375 per share.
"Beneficial Ownership" shall mean ownership of Class B Common or
Class B Excess Common by a Person who is or would be treated as an owner of
such Class B Common or Class B Excess Common either directly or
constructively through the application of Section 544 of the Code, as
modified by Section 856(h)(1)(B) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the correlative
meanings.
"Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions in The City of New York are authorized or required by law,
regulation or executive order to close.
"Capital Stock" shall mean all classes of series of stock of the
Corporation, including, without limitation, Common Stock, Class B Common,
preferred stock, par value $0.01 per share and excess stock, par value
$0.01 per share.
"Charitable Beneficiary" shall mean a beneficiary of the Trust as
determined pursuant to Section 10(l).
"Class B Dividend Amount" shall mean, with respect to any
quarterly period, an amount equal to 1/4th of the product of (a) the
Unadjusted Class B Dividend Amount for the Class B Year in which such
quarterly period occurs, multiplied by (b) the Dividend Payment Percentage
for such quarterly period; provided, however that if during any Class B
Year after the first Class B Year, the Unadjusted Class B Dividend Amount
for the then current Class B Year is less than the Unadjusted Class B
Dividend Amount for the prior Class B Year, then for each quarter during
such year having a Dividend Payment Percentage of 100% the Class B Dividend
Amount for such quarter shall not be less than the sum of (i) the dividends
paid on a share of Common Stock plus (ii) $0.2225. Notwithstanding the
foregoing, the Class B Dividend Amount for the quarter in which the Class B
Issue Date occurs shall be equal to the product of (a) $.006222, multiplied
by (b) the number of days elapsed from the Class B Issue Date to the last
day of the calendar quarter in which the Class B Issue Date occurs and
multiplied by (c) the Dividend Payment Percentage for such quarterly
period.
"Class B Year" shall mean the Base Year and each consecutive
twelve-month period thereafter.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Equity" shall mean all shares now or hereafter authorized
of any class of common stock of the Corporation, including the Common Stock
and the Class B Common Stock, and any other stock of the Corporation,
howsoever designated, authorized after the Class B Issue Date, which has
the right (subject always to prior rights of any class or series of
preferred stock) to participate in the distribution of the assets and
earnings of the Corporation without limit as to per share amount.
"Constructive Ownership" shall mean ownership of Class B Common
or Class B Excess Common by a Person who is or would be treated as an owner
of such Class B Common or Class B Excess Common either directly or
constructively through the application of Section 318 of the Code, as
modified by Section 856(d)(5) of the Code. The terms "Constructive Owner,"
"Constructively Owns" and "Constructively Owned" shall have the correlative
meanings.
"Current Market Price" of publicly traded Common Stock or any
other equity security of the Corporation or any other issuer for any day
shall mean the last reported sales price, regular way, on such day, or, if
no sale takes place on such day, the average of the reported closing bid
and asked prices on such day, regular way, in either case as reported on
the NYSE or, if such security is not listed or admitted for trading on the
NYSE, on the principal national securities exchange on which such security
is listed or admitted for trading or, if not listed or admitted for trading
on any national securities exchange, on the Nasdaq National Market or, if
such security is not quoted on the Nasdaq National Market, the average of
the closing bid and asked prices on such day in the over-the-counter market
as reported by Nasdaq or, if bid and asked prices for such security on such
day shall not have been reported through Nasdaq the average of the bid and
asked prices on such day as furnished by any NYSE member firm regularly
making a market in such security selected for such purpose by the
Corporation's Chief Executive Officer or the Board of Directors of the
Corporation.
"Dividend Payment Percentage" shall mean, with respect to any
quarterly period, the lesser of (a) 1 and (b) the fraction (expressed as a
percentage) equal to (i) the dividend paid on the Common Stock in such
quarter over (ii) the Base Year Quarterly Dividend.
"Exchange Consideration Amount" shall mean, on any date of
determination, the product of (a) the Market Price of the Common Stock on
such date multiplied by (b) the Exchange Rate on such date, without giving
effect to the adjustment described in Section 9(a)(iv).
"Fair Market Value" shall mean the average of the daily Current
Market Prices per share of Common Stock during the ten consecutive Trading
Days selected by the Corporation commencing not more than 20 Trading Days
before, and ending not later than, the earlier of the day in question and
the day before the "ex-date" with respect to the issuance or distribution
requiring such computation. The term "ex-date", when used with respect to
any issuance or distribution, means the first day on which the shares of
Common Stock trade regular way, without the right to receive such issuance
or distribution, on the exchange or in the market, as the case may be, for
purposes of determining that day's Current Market Price.
"FFO" shall mean "funds from operations" as defined in the
National Association of Real Estate Investment Trusts from time to time and
determined in good faith by the Company and set forth in its filings with
the Securities and Exchange Commission.
"GAAP" shall mean generally accepted accounting principles.
"IRS" shall mean the United States Internal Revenue Service.
"Market Price " as to any date shall mean the average of the last
sales price reported on the NYSE of the Common Stock, on the ten trading
days immediately preceding the relevant date, or if not then traded on the
NYSE, the average of the last reported sales price of the Class B Common on
the ten trading days immediately preceding the relevant date as reported on
any exchange or quotation system over which the Common Stock may be traded,
or if not then traded over any exchange or quotation system, then the
market price of the Common Stock on the relevant date as determined in good
faith by the Board of Directors.
"Ownership Limit" shall mean 9% in value of the aggregate of the
outstanding shares of Common Equity. The value of shares of the
outstanding shares of Common Equity shall be determined by the Board of
Directors of the Corporation in good faith, which determination shall be
conclusive for all purposes hereof.
"Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Section 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set aside for or
to be used exclusively for the purposes described in Section 642(c) of the
Code, association, private foundation within the meaning of Section 509(a)
of the Code, joint stock company or other entity, and also includes a group
as that term is used for purposes of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended; but does not include an underwriter which
participates in a public offering of the Class B Common or any interest
therein, provided that such ownership by such underwriter would not result
in the Corporation being "closely held" within the meaning of Section
856(h) of the Code, or otherwise result in the Corporation failing to
qualify as a REIT.
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer which results in Class B Excess Common, the purported
beneficial transferee or owner for whom the Purported Record Transferee
would have acquired or owned shares of Class B Common if such Transfer had
been valid under Section 10(a) below.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer which results in Class B Excess Common Stock, the record
holder of the Class B Common if such Transfer had been valid under Section
10(a).
"Set apart for payment" shall be deemed to include, without any
further action, the following: the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to an authorization of a dividend or other distribution by the
Board of Directors of the Corporation, the allocation of funds to be so
paid on any series or class of shares of the Corporation.
"Trading Day" shall mean any day on which the securities in
question are traded on the NYSE or, if such securities are not listed or
admitted for trading on the NYSE, on the principal national securities
exchange on which such securities are listed or admitted or, if not listed
or admitted for trading on any national securities exchange, on the Nasdaq
National Market or, if such securities are not quoted on the Nasdaq
National Market, on the applicable securities market in which the
securities are traded.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Capital Stock, including (i) the granting of
any option or entering into any agreement for the sale, transfer or other
disposition of Capital Stock or (ii) the sale, transfer, assignment or
other disposition of any securities (or rights convertible into or
exchangeable for Capital Stock), whether voluntary or involuntary, whether
of record or beneficially or Beneficially or Constructively Owned
(including but not limited to Transfers of interests in other entities
which result in changes in Beneficial or Constructive Ownership of Capital
Stock), and whether by operation of law or otherwise. The term
"Transferring" and "Transferred" shall have the correlative meanings.
"Transfer Agent" shall mean American Stock Transfer & Trust
Company, or such other agent or agents of the Corporation as may be
designated by the Board of Directors of the Corporation or its designee as
the transfer agent for the Class B Common.
"Trust " shall mean the trust created pursuant to Section 10(l).
"Trustee " shall mean the Person that is appointed by the
Corporation pursuant to Section 10(l) to serve as trustee of the Trust, and
any successor thereto.
"Unadjusted Class B Dividend Amount" shall mean (a) $2.24 for the
first Class B Year and (b) with respect to any Class B Year thereafter, an
amount equal to $2.24 multiplied by the sum of (i) one plus (ii) 70% of
Aggregate FFO Growth for the prior Class B Year, but in no event shall the
Unadjusted Class B Dividend Amount be less than $2.24.
12 Determination by Board. Any determination by the Board of
Directors pursuant to the terms of the Class B Common shall be final and
binding upon the holders thereof and shall be conclusive for all purposes.
THIRD: The Class B Common shares have been classified and
designated by the Board of Directors under the authority contained in the
Charter.
FOURTH: These Articles Supplementary have been approved by the
Board of Directors in the manner and by the vote required by law.
FIFTH: These Articles Supplementary shall be effective at the
time the State Department of Assessments and Taxation of Maryland accepts
these Articles Supplementary for record.
IN WITNESS WHEREOF, Reckson Associates Realty Corp. has caused
these presents to be signed in its name and on its behalf by its President
and Chief Operating Officer and its corporate seal to be hereunto affixed
and attested by its Secretary, and the said officers of the Corporation
further acknowledge said instrument to be the corporate act of the
Corporation, and state under the penalties of perjury that, to the best of
their knowledge, information and belief, the matters and facts therein set
forth with respect to approval are true in all material respects.
RECKSON ASSOCIATES REALTY CORP.
By: _____________________________________
Scott H. Rechler,
President and Chief Operating Officer
(SEAL)
ATTEST:
________________________
Gregg Rechler, Secretary
EXHIBIT B TO THE MERGER AGREEMENT
RECKSON OPERATING PARTNERSHIP, L.P.,
Issuer
and
RECKSON ASSOCIATES REALTY CORP.,
Guarantor
to
_______________________________
Trustee
INDENTURE
Dated as of _______, __199_
Debt Securities
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
section 310(a)(1) 607
(a)(2) 607
(b) 608
section 312(a) 701
(b) 702
(c) 702
section 313(a) 703
(b)(2) 703
(c) 703
(d) 703
section 314(a) 704
(c)(1) 102
(c)(2) 102
(e) 102
(f) 102
section 316(a) (last sentence) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
section 317(a)(1) 503
(a)(2) 504
(b) 1003
section 318(a) 108
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 3 10
to and including 317 are a part of and govern every qualified
indenture, whether or not physically contained herein.
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . .
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . .
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Annual Service Charge . . . . . . . . . . . . . . . . . . . . . . .
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . .
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . .
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . .
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . .
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . .
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Consolidated Income Available for Debt Service . . . . . . . . . . .
Consolidated Net Income . . . . . . . . . . . . . . . . . . . . . .
Conversion Event . . . . . . . . . . . . . . . . . . . . . . . . . .
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . .
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CUSIP number . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . .
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Euro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
European Monetary System . . . . . . . . . . . . . . . . . . . . . .
European Union . . . . . . . . . . . . . . . . . . . . . . . . . . .
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . .
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . . . .
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General Partner . . . . . . . . . . . . . . . . . . . . . . . . . .
Government Obligations . . . . . . . . . . . . . . . . . . . . . . .
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Guaranteed Securities . . . . . . . . . . . . . . . . . . . . . . .
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Guarantor's Board of Directors . . . . . . . . . . . . . . . . . . .
Guarantor's Board Resolution . . . . . . . . . . . . . . . . . . . .
Guarantor's Officers' Certificate . . . . . . . . . . . . . . . . .
Guarantor Request . . . . . . . . . . . . . . . . . . . . . . . . .
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Independent Public Accountants . . . . . . . . . . . . . . . . . . .
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . . . .
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . .
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Issuer Request . . . . . . . . . . . . . . . . . . . . . . . . . . .
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . .
Legal Holiday . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
New York Banking Day . . . . . . . . . . . . . . . . . . . . . . . .
Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . .
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . .
Original Issue Discount Security . . . . . . . . . . . . . . . . . .
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Permitted Debt . . . . . . . . . . . . . . . . . . . . . . . . . . .
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . .
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . .
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . .
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . .
Registered Security . . . . . . . . . . . . . . . . . . . . . . . .
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . .
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . .
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . .
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Security Register . . . . . . . . . . . . . . . . . . . . . . . . .
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . .
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . .
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Total Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Total Unencumbered Assets . . . . . . . . . . . . . . . . . . . . .
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . .
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Undepreciated Real Estate Assets . . . . . . . . . . . . . . . . . .
United States . . . . . . . . . . . . . . . . . . . . . . . . . . .
United States Alien . . . . . . . . . . . . . . . . . . . . . . . .
Unsecured Debt . . . . . . . . . . . . . . . . . . . . . . . . . . .
U S. Depository . . . . . . . . . . . . . . . . . . . . . . . . . .
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . .
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . .
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . .
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . .
Section 105. Notices, etc., to Trustee and Issuer and Guarantor . . . . .
Section 106. Notice to Holders of Securities; Waiver . . . . . . . . . .
Section 107. Language of Notices . . . . . . . . . . . . . . . . . . . .
Section 108. Conflict with Trust Indenture Act . . . . . . . . . . . . .
Section 109. Effect of Headings and Table of Contents . . . . . . . . . .
Section 110. Successors and Assigns . . . . . . . . . . . . . . . . . . .
Section 111. Separability Clause . . . . . . . . . . . . . . . . . . . .
Section 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . .
Section 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . .
Section 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . .
Section 115. Counterparts . . . . . . . . . . . . . . . . . . . . . . . .
Section 116. Judgment Currency . . . . . . . . . . . . . . . . . . . . .
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . .
Section 202. Form of Trustee's Certificate of Authentication . . . . . .
Section 203. Securities in Global Form . . . . . . . . . . . . . . . . .
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . .
Section 302. Currency; Denominations . . . . . . . . . . . . . . . . . .
Section 303. Execution, Authentication, Delivery and Dating . . . . . . .
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . .
Section 305. Registration, Transfer and Exchange . . . . . . . . . . . .
Section 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . .
Section 307. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts
Preserved . . . . . . . . . . . . . . . . . . . . . . . .
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . .
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . .
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . .
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge . . . . . . . . . . . . . . . . .
Section 402. Defeasance and Covenant Defeasance . . . . . . . . . . . . .
Section 403. Application of Trust Money . . . . . . . . . . . . . . . . .
ARTICLE FIVE
REMEDIES
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . .
Section 502. Acceleration of Maturity; Rescission and Annulment . . . . .
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . . .
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . .
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons . . . . . . . . . . . . . . . . . .
Section 506. Application of Money Collected . . . . . . . . . . . . . . .
Section 507. Limitations on Suits . . . . . . . . . . . . . . . . . . . .
Section 508. Unconditional Right of Holders to Receive Principal
and any Premium, Interest and Additional Amounts . . . . .
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . .
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . .
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . .
Section 512. Control by Holders of Securities . . . . . . . . . . . . . .
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . .
Section 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . . .
Section 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . .
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee . . . . . . . . . . . . . . . . .
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . .
Section 603. Not Responsible for Recitals or Issuance of Securities . . .
Section 604. May Hold Securities . . . . . . . . . . . . . . . . . . . .
Section 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . .
Section 606. Compensation and Reimbursement . . . . . . . . . . . . . . .
Section 607. Corporate Trustee Required; Eligibility . . . . . . . . . .
Section 608. Resignation and Removal; Appointment of Successor . . . . .
Section 609. Acceptance of Appointment by Successor . . . . . . . . . . .
Section 610. Merger, Conversion, Consolidation or Succession to Business
Section 611. Appointment of Authenticating Agent . . . . . . . . . . . .
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND ISSUER
Section 701. Issuer and the Guarantor to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . . .
Section 702. Preservation of Information; Communications to Holders . . .
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . .
Section 704. Reports by Issuer and Guarantor . . . . . . . . . . . . . .
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Issuer May Consolidate, Etc., Only on Certain Terms . . . .
Section 802. Successor Person Substituted for Issuer . . . . . . . . . .
Section 803. Guarantor May Consolidate, Etc., Only on Certain Terms . . .
Section 804. Successor Person Substituted for Guarantor . . . . . . . . .
Section 805. Assumption by Guarantor . . . . . . . . . . . . . . . . . .
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders . . . . .
Section 902. Supplemental Indentures with Consent of Holders . . . . . .
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . .
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . .
Section 905. Reference in Securities to Supplemental Indentures . . . . .
Section 906. Conformity with Trust Indenture Act . . . . . . . . . . . .
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium, Interest and
Additional Amounts . . . . . . . . . . . . . . . . . . . .
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . .
Section 1003. Money for Securities Payments to Be Held in Trust . . . . .
Section 1004. Limitations on Incurrence of Debt . . . . . . . . . . . . .
Section 1005. Additional Amounts . . . . . . . . . . . . . . . . . . . . .
Section 1006. Maintenance of Properties . . . . . . . . . . . . . . . . .
Section 1007. Insurance . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1008. Existence . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1009. Waiver of Certain Covenants . . . . . . . . . . . . . . . .
Section 1010. Issuer Statement as to Compliance; Notice of Certain
Defaults . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1011. Guarantor Statement as to Compliance; Notice of Certain
Defaults . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1012. Maintenance of Total Unencumbered Assets . . . . . . . . . .
Section 1013. [Intentionally Omitted] . . . . . . . . . . . . . . . . . .
Section 1014. Payment of Taxes and Other Claims . . . . . . . . . . . . .
Section 1015. Provision of Financial Information . . . . . . . . . . . . .
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . .
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . .
Section 1103. Selection by Trustee of Securities to be Redeemed . . . . .
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . .
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . .
Section 1106. Securities Payable on Redemption Date . . . . . . . . . . .
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . .
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . .
Section 1202. Satisfaction of Sinking Fund Payments with Securities . . .
Section 1203. Redemption of Securities for Sinking Fund . . . . . . . . .
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article . . . . . . . . . . . . . . . . . .
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article . . . . . . . . . . . . . . . . . .
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called . . . . . . . . .
Section 1502. Call, Notice and Place of Meetings . . . . . . . . . . . . .
Section 1503. Persons Entitled to Vote at Meetings . . . . . . . . . . . .
Section 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . .
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . . . . .
Section 1506. Counting Votes and Recording Action of Meetings . . . . . .
ARTICLE SIXTEEN
GUARANTEE
Section 1601. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . .
INDENTURE, dated as of ___________, 199_ (the "Indenture"), among
RECKSON OPERATING PARTNERSHIP, L.P., a limited partnership duly organized
and existing under the laws of Delaware (hereinafter called the "Issuer"),
having its principal executive office located at 225 Broadhollow Road,
Melville, NY 11747, RECKSON ASSOCIATES REALTY CORP., a corporation duly
organized and existing under the laws of the Maryland (hereinafter called
the "Guarantor" or the "General Partner"), having its principal executive
office at 225 Broadhollow Road, Melville, NY 11747, and ________________, a
____________ trust company duly organized and existing under the laws of
the __________________ of __________(hereinafter called the "Trustee"),
having its Corporate Trust Office located at _____________________________.
Recitals
The execution and delivery by the Issuer of this Indenture to
provide for the issuance from time to time of the Issuer's senior unsecured
debentures, notes or other evidences of Indebtedness (hereinafter called
the "Securities"), unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as hereinafter
provided, has been duly authorized.
All things necessary to make this Indenture a valid agreement of
the Issuer, in accordance with its terms have been done.
For value received, the execution and delivery by the Guarantor
of this Indenture to provide for the issuance of the Guarantee provided for
herein has been duly authorized. All things necessary to make this
Indenture a valid agreement of the Guarantor, in accordance with its terms,
have been done.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required
to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof and any Coupons (as
herein defined) as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this
Indenture or unless the context otherwise requires, for all purposes of
this Indenture:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not other-wise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the terms "generally accepted accounting principles" or
"GAAP" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the
date of such computation;
(4) the words "herein", "hereof', "hereto" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both", not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are
defined in those Articles.
"Act," when used with respect to any Holders, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Issuer in respect of certain taxes, assessments
or other governmental charges imposed on Holders specified therein and
which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control", when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
the meanings correlative to the foregoing.
"Annual Service Charge" as of any date means the amount which is
expensed or capitalized in any 12-month period for interest on
Indebtedness.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language
of the place of publication or in the English language, customarily
published on each day that is a Business Day in the place of publication,
whether or not published on days that are Legal Holidays in the place of
publication, and of general circulation in each place in connection with
which the term is used or in the financial community of each such place.
Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements
and in each case on any day that is a Business Day in the place of
publication.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the General
Partner or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the General Partner
to have been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other
location, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day other than a Saturday, Sunday or other day
on which banking institutions in such Place of Payment or other location
are authorized or obligated by law, regulation or executive order to close.
"Code" means the Internal Revenue Code of 1986, as amended,
together with its predecessor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture
such Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body performing such duties at
such time.
"Common Stock" includes any stock of any class of the General
Partner which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the General Partner and which is not subject
to redemption by the General Partner.
"Consolidated Income Available for Debt Service" for any period
means Consolidated Net Income of the Issuer and its Subsidiaries (i) plus
amounts which have been deducted for (a) interest on Indebtedness of the
Issuer and its Subsidiaries, (b) provision for taxes of the Issuer and its
Subsidiaries based on income, (c) amortization of debt discount, (d)
depreciation and amortization, (e) the effect of any noncash charge
resulting from a change in accounting principles in determining
Consolidated Net Income for such period, (f) amortization of deferred
charges, and (g) provisions for or realized losses on properties and (ii)
less amounts which have been included for gains on properties.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Issuer and its Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which
issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international
banking community or (ii) the Euro both within the European Monetary System
and for the settlement of transactions by public institutions of or within
the European Community.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the due of original
execution of this Indenture is located at ___________________________.
"Corporation" includes corporations and limited liability
companies and, except for purposes of Article Eight, associations,
companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency," with respect to any payment, deposit or other
transfer in respect of the principal of or any premium or interest on or
any Additional Amounts with respect to any Security, means Dollars or the
Foreign Currency, as the case may be, in which such payment, deposit or
other transfer is required to be made by or pursuant to the terms hereof or
such Security and, with respect to any other payment, deposit or transfer
pursuant to or contemplated by the terms hereof or such Security, means
Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of
America.
"Euro" means the European Currency Units as defined and revised
from time to time by the Council of the European Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Community.
"European Union" means the European Community, the European Coal
and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the Euro, issued by the government
of one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"GAAP" means such accounting principles as are generally accepted
in the United States of America as of the date or time of any computation
required hereunder.
"General Partner" means Reckson Associates Realty Corp., as the
sole general partner of the Issuer.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which
the principal of or any premium or interest on such Security or any
Additional Amounts in respect thereof shall be payable, in each case where
the payment or payments thereunder are supported by the full faith and
credit of such government or governments or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such other government or governments, in
each case where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government or governments, and
which, in the case of (i) or (ii), are not callable or redeemable at the
option of the issuer or issuers thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest
on or principal of or other amount with respect to any such Government
Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment
of interest on or principal of or other amount with respect to the
Government Obligation evidenced by such depository receipt.
"Guarantee" means the unconditional guarantee of the payment of
the principal of or any premium or interest on or any Additional Amounts
with respect to the Guaranteed Securities by the Guarantor, as more fully
set forth in Article Sixteen.
"Guaranteed Securities" means a series of Securities made subject
to a Guarantee (as set forth in Article Sixteen) pursuant to Section 301.
"Guarantor" means the Person named as the "Guarantor" in the
first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Guarantor" shall mean such successor Person.
"Guarantor's Board of Directors" means the board of directors of
the Guarantor or any committee of that board duly authorized to act
generally or in any particular respect for the Guarantor hereunder.
"Guarantor's Board Resolution" means a copy of one or more
resolutions, certified by the Secretary or an Assistant Secretary of the
Guarantor to have been duly adopted by the Guarantor's Board of Directors
and to be in full force and effect on the date of such certification,
delivered to the Trustee.
"Guarantor's Officers' Certificate" means a certificate signed by
the Chairman, the President or a 'Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, that complies with the requirements of Section 14(e) of the
Trust Indenture Act and is delivered to the Trustee.
"Guarantor Request" and "Guarantor Order" mean, respectively, a
written request or order signed in the name of the Guarantor by the
Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, and delivered to the Trustee.
"Holder," in the case of any Registered Security, means the
Person in whose name such Security is registered in the Security Register
and, in the case of any Bearer Security, means the bearer thereof and, in
the case of any Coupon, means the bearer thereof.
"Indebtedness" means any indebtedness, whether or not contingent,
in respect of (i) borrowed money evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness secured by any mortgage, pledge,
lien, charge, encumbrance or any security interest existing on property,
(iii) the reimbursement obligations, contingent or otherwise, in connection
with any letters of credit actually issued or amounts representing the
balance deferred and unpaid of the purchase price of any property except
any such balance that constitutes an accrued expense or trade payable or
(iv) any lease of property as lessee which would be reflected on a balance
sheet as a capitalized lease in accordance with GAAP, in the case of items
of indebtedness under (i) through (iii) above to the extent that any such
items (other than letters of credit) would appear as a liability on a
balance sheet in accordance with GAAP, and also includes, to the extent not
otherwise included, any obligation to be liable for, or to pay, as obligor,
guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), indebtedness of another Person.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and, with respect
to any Security, by the terms and provisions of such Security and any
Coupon appertaining thereto established pursuant to Section 301 (as such
terms and provisions may be amended pursuant to the applicable provisions
hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Issuer and the Guarantor and any
other obligor under the Securities or the Coupons, are independent public
accountants within the meaning of the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the Commission thereunder, who
may be the independent public accountants regularly retained by the Issuer
or the Guarantor or who may be other independent public accountants. Such
accountants or firm shall be entitled to rely upon any Opinion of Counsel
as to the interpretation of any legal matters relating to this Indenture or
certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"Interest", with respect to any Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest
payable after Maturity and, when used with respect to a Security which
provides for the payment of installments of interest thereon or Additional
Amounts pursuant to Section 1005, includes such installments of interest or
Additional Amounts.
"Interest Payment Date", with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Issuer" means the Person named as the 'Issuer" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Issuer" shall mean such successor Person, and any other obligor
upon the Securities.
"Issuer Request" and "Issuer Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Issuer by
the Chairman of the Board of Directors, a Vice Chairman, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the General Partner acting in its capacity as
the general partner of the Issuer, and delivered to the Trustee.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holiday" means a day that is not a Business Day.
"Lien" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or
title of any vendor, lessor, lender or other secured party to or of such
Person under any conditional sale or other title retention agreement or
Capital Lease, upon or with respect to any property or asset of such
Person. A Capital Lease is a lease to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of
a liability in accordance with GAAP.
"Maturity", with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due
and payable as provided in or pursuant to this Indenture, whether at the
Stated Maturity or by declaration of acceleration, notice of redemption or
repurchase, notice of option to elect repayment or otherwise, and includes
the Redemption Date, if any.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency", with respect to any Securities, means an
office or agency of the Issuer or the Guarantor maintained or designated in
a Place of Payment for such Securities pursuant to Section 1002 or any
other office or agency of the Issuer maintained or designated for such
Securities pursuant to Section 1002 or, to the extent designated or
required by Section 1002 in lieu of such office or agency, the Corporate
Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, & President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the General Partner in its capacity as sole managing general
partner of the Issuer, that complies with the requirements of Section
314(e) of the Trust Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or counsel for the Issuer or the Guarantor, as the case
may be, or other counsel who shall be reasonably acceptable to the Trustee,
that, if required by the Trust Indenture Act, complies with the
requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued
pursuant to this Indenture which provides for declaration of an amount less
than the principal face amount thereof to be due and payable upon
acceleration pursuant to Section 502.
"Outstanding", when used with respect to any Securities, means,
as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or
the Security Registrar or delivered to the Trustee or the
Security Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof
money in the necessary amount has been theretofore deposited
pursuant hereto (other than pursuant to Section 402) with
the Trustee or any Paying Agent (other than the Issuer or
the Guarantor) in trust or set aside and segregated in trust
by the Issuer or the Guarantor (if the Issuer shall act as
its own, or authorize the Guarantor to act as, Paying Agent)
for the Holders of such Securities and any Coupons
appertaining thereto, provided that, if such Securities are
to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Issuer or the
Guarantor has effected defeasance pursuant to the terms
hereof, except to the extent provided in Section 402; and
(d) any such Security which has been paid pursuant to Section
306 or in exchange for (or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, unless there shall have been presented to the
Trustee proof satisfactory to it that such Security is held
by a bona fide purchaser in whose hands such Security is a
valid obligation of the Issuer.
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, (i) the
principal amount of an Original Issue Discount Security that may be counted
in making such determination and that shall be deemed to be Outstanding for
such purposes shall be equal to the amount of the principal thereof that
pursuant to the terms of such Original Issue Discount Security would be
declared (or shall have been declared to be) due and payable upon a
declaration of acceleration thereof pursuant to Section 502 at the time of
such determination, and (ii) the principal amount of any Indexed Security
that may be counted in making such determination and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided in or
pursuant to this Indenture, and (iii) the principal amount of a Security
denominated in a Foreign Currency shall be the Dollar equivalent,
determined on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security,
the Dollar equivalent on the date of original issuance of such Security of
the amount determined as provided in 0) above) of such Security, and (iv)
Securities owned by the Issuer, the Guarantor or any other obligor upon the
Securities or any Affiliate of the Issuer, the Guarantor or such other
obligor, shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making any
such determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which shall have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee (A) the pledgee's right so to act with respect to such
Securities and (B) that the pledgee is not the Issuer, the Guarantor or any
other obligor upon the Securities or any Coupons appertaining thereto or an
Affiliate of the Issuer, the Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Issuer to pay
the principal of, or any premium or interest on, or any Additional Amounts
with respect to, any Security or any Coupon on behalf of the Issuer.
"Permitted Debt" means Indebtedness of the Issuer or any
Subsidiary owing to any Subsidiary or the Issuer; provided that any such
Indebtedness is made pursuant to an intercompany note and is subordinated
in right of payment to the Securities; provided further that any
disposition, pledge or transfer of any such Indebtedness to a Person (other
than the Issuer or another Subsidiary) shall be deemed to be an incurrence
of such Indebtedness by the Issuer or a Subsidiary, as the case may be, and
not Permitted Debt as defined herein.
"Person" means any individual, Corporation, partnership, joint
venture, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment, " with respect to any Security, means the
place or places where the principal of, or any premium or interest on, or
any Additional Amounts with respect to such Security are payable as
provided in or pursuant to this Indenture or such Security.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same Indebtedness as
that evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a lost, destroyed, mutilated or stolen Security
or any Security to which a mutilated, destroyed, lost or stolen Coupon
appertains shall be deemed to evidence the same Indebtedness as the lost,
destroyed, mutilated or stolen Security or the Security to which a
mutilated, destroyed, lost or stolen Coupon appertains.
"Redemption Date", with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture or such Security.
"Redemption Price", with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed as
determined by or pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any,
specified in or pursuant to this Indenture or such Security as the "Regular
Record Date".
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" means any note or notes, bond or
bonds, debenture or debentures, or any other evidences of Indebtedness, as
the case may be, authenticated and delivered under this Indenture;
provided, however, that, if at any time there is more than one Person
acting as Trustee under this Indenture, "Securities", with respect to any
such Person, shall mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
on any Registered Security means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity", with respect to any Security or any
installment of principal thereof or interest thereon or any Additional
Amounts with respect thereto, means the date established by or pursuant to
this Indenture or such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is, or such
Additional Amounts are, due and payable.
"Subsidiary" means any entity of which at the time of
determination the Issuer or one or more subsidiaries owns or controls
directly or indirectly more than 50% of the shares of Voting Stock.
"Total Assets" as of any date means the sum of (i) the
Undepreciated Real Estate Assets, (ii) all other assets of the Issuer, and
of its Subsidiaries determined at the applicable proportionate interest of
the Issuer in each such Subsidiary, determined in accordance with GAAP (but
excluding intangibles and accounts receivable) and (iii) the cost of any
property of the Issuer, or any Subsidiary thereof, in which the Issuer, or
such Subsidiary, as the case may be, has a firm, non-contingent purchase
obligation.
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not subject to a Lien on a consolidated
basis, (ii) all other assets of the Issuer, and of its Subsidiaries
determined at the applicable proportionate interest of the Issuer in each
such Subsidiary, which are not subject to a Lien determined in accordance
with GAAP (but excluding intangibles and accounts receivable) and (iii) the
cost of any property of the Issuer, or any Subsidiary thereof, in which the
Issuer, or such Subsidiary, as the case may be, has a firm, noncontingent
purchase obligation and which is not subject to a Lien.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall mean such Act or provision, as the case
may be, as amended or replaced from time to time or as supplemented from
time to time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean each Person who is then a Trustee hereunder; provided, however, that
if at any time there is more than one such Person, "Trustee" shall mean
each such Person and as used with respect to the Securities of any series
shall mean the Trustee with respect to the Securities of such series.
"Undepreciated Real Estate Assets" means as of any date the cost
(original cost plus capital improvements) of real estate assets of the
Issuer and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP.
"United States," except as otherwise provided in or pursuant to
this Indenture or any Security, means the United States of America
(including the states thereof and the District of Columbia), its
territories and possessions and other areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or
pursuant to this Indenture or any Security, means any Person who, for
United States Federal income tax purposes, is a foreign corporation, a non-
resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of
which is, for United States Federal income tax purposes, a foreign
corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"Unsecured Debt" means Indebtedness of the Issuer or any
Subsidiary which is not secured by any mortgage, lien, charge, pledge or
security interest of any kind upon any of the properties owned by the
Issuer or any of its Subsidiaries.
"U S. Depository" or "Depository " means, with respect to any
Security issuable or issued in the form of one or more global Securities,
the Person designated as U.S. Depository or Depository by the Issuer in or
pursuant to this Indenture, which Person must be, to the extent required by
applicable law or regulation, a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and, if so provided with
respect to any Security, any successor to such Person. If at any time there
is more than one such Person, "U.S. Depository" or "Depository" shall mean,
with respect to any Securities, the qualifying entity which has been
appointed with respect to such Securities.
"Vice President," when used with respect to a vice president of
the General Partner acing irk its capacity as the sole managing general
partner of the Issuer, or with respect to the Guarantor or the Trustee,
means any vice president, whether or not designated by a number or a word
or words added before or after the title "Vice President".
"Voting Stock" means stock of a Corporation of the class or
classes having general voting power under ordinary circumstances to elect
at least a majority of the board of directors, managers or trustees of such
Corporation provided that, for the purposes hereof, stock which carries
only the right to vote conditionally on the happening of an event shall not
be considered voting stock whether or not such event shall have happened.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Issuer or the Guarantor to the Trustee to
take any action under any provision of this Indenture, the Issuer or the
Guarantor, as the case may be, shall furnish to the Trustee an Officers'
Certificate or a Guarantor's Officers' Certificate, as the case may be,
stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents or any of them is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Issuer or the
Guarantor may be based, insofar as it relates to legal matters, upon an
Opinion of Counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Issuer or the Guarantor, as the case may be, stating that
the information with respect to such factual matters is in the possession
of the Issuer or the Guarantor, as the case may be, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need
not, be consolidated and form one instrument.
Section 104. Acts of Holders.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. If, but only if,
Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided in or pursuant to this Indenture to be given or taken by Holders
of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Issuer and the Guarantor. Such instrument
or instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security,
shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee
and the Issuer and the Guarantor and any agent of the Trustee or the Issuer
and the Guarantor, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the
manner provided in Section 1506.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder, including a
U.S. Depository that is a Holder of a global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by
Holders, and a U.S. Depository that is a Holder of a global Security may
provide its proxy or proxies to the beneficial owners of interests in any
such global Security through such U.S. Depository's standing instructions
and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a U.S. Depository entitled under the
procedures of such U.S. Depository to make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to
this Indenture to be made, given or taken by Holders. If such a record date
is fixed, the Holders on such record date or their duly appointed proxy or
proxies, and only such Persons, shall be entitled to make, give or take
such request, demand, authorization, direction, notice, consent, waiver or
other Act, whether or not such Holders remain Holders after such record
date. No such request, demand, authorization, direction, notice, consent,
waiver or other Act shall be valid or effective if made, given or taken
more than 90 days after such record date.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as
the Trustee may determine; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this
Section.
(3) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the commencement
and the date of the termination of holding the same, shall be proved by the
Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the
date of the termination of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Issuer and the Guarantor, wherever situated,
if such certificate shall be deemed by the Issuer and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee, the
Guarantor and the Issuer may assume that such ownership of any Bearer
Security continues until (1) another certificate or affidavit bearing a
later dale issued in respect of the same Bearer Security is produced, or
(2) such Bearer Security is produced to the Trustee by some other Person,
or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The
ownership, principal amount and serial numbers of Bearer Securities held by
the Person so executing such instrument or writing and the date of the
commencement and the date of the termination of holding the same may also
be proved in any other manner which the Issuer and the Trustee deem
sufficient.
(5) If the Issuer or the Guarantor shall solicit from the
Holders of any Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Issuer or the
Guarantor, as the case may be, may at As option (but is not obligated to),
by Board Resolution or Guarantor's Board Resolution, as the case may be,
fix in advance a record date for the determination of Holders of Registered
Securities entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such record
date shall be deemed to be Holders for the purpose of determining whether
Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date; provided
that no such authorization, agreement or consent by the Holders of
Registered Securities shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six
months after the record date.
(6) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, the Guarantor or the
Issuer in reliance thereon, whether or not notation of such Act is made
upon such Security.
Section 105. Notices, etc., to Trustee and Issuer and
Guarantor.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Guarantor or the Issuer shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Issuer or the Guarantor by the Trustee or any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Issuer or the Guarantor, as the case may be, addressed to the
attention of its Treasurer at the address of its principal office specified
in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Issuer or the
Guarantor, as the case may be.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such event, at
his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Issuer shall advise the Trustee that such stock exchange so requires, on a
Business Day at least twice, the first such publication to be not earlier
than the earliest date and the second such publication not later than the
latest date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein. Any notice which is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given or provided. In the case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other
cause it shall be impracticable to publish any notice to Holders of Bearers
Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders of Securities shall
be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in
the English language, except that, if the Issuer or the Guarantor, as the
case may be, so elects, any published notice may be in an official language
of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer
shall bind its successors and assigns, whether so expressed or not. All
covenants and agreements in this Indenture by the Guarantor shall bind its
successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture, any Security or any
Coupon shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent and their successors hereunder and the
Holders of Securities or Coupons, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be governed
by and construed in accordance with the laws of the State of New York
applicable to agreements made or instruments entered into and, in each
case, performed in said state.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or
any Securities, in any case where any Interest Payment Date, Stated
Maturity or Maturity of any Security, or the last date on which a Holder
has the right to convert or exchange Securities of a series that are
convertible or exchangeable, shall be a Legal Holiday at any Place of
Payment, then (notwithstanding any other provision of this Indenture, any
Security or any Coupon other than a provision in any Security or Coupon
that specifically states that such provision shall apply in lieu hereof)
payment need not be made at such Place of Payment on such date, and such
Securities need not be converted or exchanged on such date but such payment
may be made, and such Securities may be converted or exchanged, on the next
succeeding day that is a Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange,
and no interest shall accrue on the amount payable on such date or at such
time for the period from and after such Interest Payment Date, Stated
Maturity, Maturity or last day for conversion or exchange, as the case may
be, to the next succeeding Business Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and
the same instrument.
Section 116. Judgment Currency.
The Issuer agrees, to the fullest extent that it may effectively
do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in respect of
the principal of, or premium or interest, if any, or Additional Amounts on
the Securities of any series (the "Required Currency") into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding
that on which a final unappealable judgment is given and (b) its
obligations under this Indenture to make payments in the Required Currency
(i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with clause
(a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt
shall fall short of the full amount of the Required Currency so expressed
to be payable and (iii) shall not be affected by judgment being obtained
for any other sum due under this Indenture. For purposes of the foregoing,
"New York Banking Day" means any day except a Legal Holiday in The City of
New York.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary
or permanent global Security issued pursuant to this Indenture shall be in
the form established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by or pursuant to this Indenture or any indenture supplemental hereto and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may, consistently herewith, be
determined by the officers executing such Security or Coupon as evidenced
by their execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without
Coupons and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on
a steel engraved border or steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Issuer executing
such Securities or Coupons, as evidenced by their execution of such
Securities or Coupons.
Section 202. Forms Generally Securities in Global Form Benefits
of Indenture Forms Generally Form of Trustee's
Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
______________________________,
as Trustee
By ___________________________
Authorized Officer
Section 203. Forms Generally Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form,
any such Security may provide that it or any number of such Securities
shall represent the aggregate amount of all Outstanding Securities of such
series (or such lesser amount as is permitted by the terms thereof) from
time to time endorsed thereon and may also provide Mt We aggregate amount
of Outstanding Securities represented thereby may from time to time be
increased or reduced to reflect exchanges. Any endorsement of any Security
in global form to reflect the amount, or any increase or decrease in the
amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or
Persons as shall be specified therein or in the Issuer Order to be
delivered pursuant to Section 303 or 304 with respect thereto. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified
therein or in the applicable Issuer Order. If an Issuer Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Issuer with respect to a Security in global form shall
be in writing but need not be accompanied by or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in
respect of, any Security in temporary or permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Issuer, the Trustee and any agent
of the Issuer and the Trustee shall heat as the Holder of such principal
amount of Outstanding Securities represented by a global Security (i) in
the case of a global Security in registered form, the Holder of such global
Security in registered form, or (ii) in the case of a global Security in
bearer form, the Person or Persons specified pursuant to Section 301.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution
and set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto,
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 905 or 1107);
(3) the percentage of the principal amount at which the
Securities of the series will be issued and, if other than the principal
amount thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of maturity thereof,
(4) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of the series
shall be payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which such date
shall be determined, the person to whom such interest shall be payable, and
the basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(6) the place or places, if any, other than or in addition to
the City of New York, New York, where the principal of (and premium, if
any), interest, if any, on, and Additional Amounts, if any, payable in
respect of, Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of transfer or
exchange and notices or demands to or upon the Issuer in respect of the
Securities of the series and this Indenture may be served;
(7) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Issuer, if the Issuer is to have the option;
(8) the obligation, if any, of the Issuer to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities of
the series shall be issuable and, if other than denominations of $5,000 and
any integral multiple thereof, the denomination or denominations in which
any Bearer Securities of the series shall be issuable;
(10) the identity of the Trustee and of each Security Registrar
and/or Paying Agent if other than the Trustee;
(11) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(12) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series shall be
payable or in which the Securities of the series shall be denominated;
(13) whether the amount of payments of principal of (and premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
(14) whether the principal of (and premium, if any) or interest
or Additional Amounts, if any, on the Securities of the series are to be
payable, at the election of the Issuer or a Holder thereof, in a currency
or currencies, currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or stated to be
payable, the period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility for, determining
the exchange rate between the currency or currencies, currency unit or
units or composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are to be so payable;
(15) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may be
specified;
(16) any deletions from, modifications of or additions to the
Events of Default or covenants of the Issuer with respect to Securities of
the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(17) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent global
form with or without coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and, if
Registered Securities of the series are to be issuable as a global
Security, the identity of the depositary for such series;
(18) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(19) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(20) if the Securities of such series axe to be Guaranteed
Securities;
(21) if either or both of Section 402(2) relating to defeasance
or Section 402(3) relating to covenant defeasance shall not be applicable
to the Securities of such series or any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Four;
(22) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(23) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(24) whether and under what circumstances the Issuer will pay
Additional Amounts on the Securities of the series to any Holder who is not
a United States person (including any modification to the definition of
such term) in respect of any tax, assessment or governmental charge and, if
so, whether the Issuer will have the option to redeem such Securities
rather than pay such Additional Amounts (and the terms of any such option);
(25) with respect to any Securities that provide for optional
redemption or prepayment upon the occurrence of certain events (such as a
change of control of the Issuer), (i) the possible effects of such
provisions on the market price of the Issuer's or the General Partner's
securities or in deterring certain mergers, tender offers or other takeover
attempts, and the intention of the Issuer to comply with the requirements
of Rule 14e-I under the Exchange Act and any other applicable securities
laws in connection with such provisions; (ii) whether the occurrence of the
specified events may give rise to cross-defaults on other indebtedness such
that payment on such Securities may be effectively subordinated; and (iii)
the existence of any limitation on the Issuer's financial or legal ability
to repurchase such Securities upon the occurrence of such an event (or, if
true, the lack of assurance that such a repurchase can be effected) and the
impact, if any, under the Indenture of such a failure, including whether
and under what circumstances such a failure may constitute an Event of
Default; and
(26) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and all Coupons, if any,
appertaining to Bearer Securities of such series shall be substantially
identical except as to Currency of payments due thereunder, denomination
and the rate of interest, or method of determining the rate of interest, if
any, Maturity, and the date from which interest, if any, shall accrue and
except as may otherwise be provided by the Issuer in or pursuant to the
Board Resolution and set forth in the Officers' Certificate or in any
indenture or indentures supplemental hereto pertaining to such series of
Securities. The terms of the Securities of any series may provide, without
limitation, that the Securities shall be authenticated and delivered by the
Trustee on original issue from time to time upon telephonic or written
order of persons designated in the Officers' Certificate or supplemental
indenture (telephonic instructions to be promptly confirmed in writing by
such person) and that such persons are authorized to determine, consistent
with such Officers' Certificate or any applicable supplemental indenture,
such terms and conditions of the Securities of such series as are specified
in such Officers' Certificate or supplemental indenture. All Securities of
any one series need not be issued at the same time and, unless otherwise so
provided by the Issuer, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of
such series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of
the Officers' Certificate setting forth the terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities
denominated in Dollars shall be issuable in registered form without Coupons
in denominations of $1,000 and any integral multiple thereof, and the
Bearer Securities denominated in Dollars shall be issuable in the
denomination of $5,000. Securities not denominated in Dollars shall be
issuable in such denominations as are established with respect to such
Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Issuer by the
General Partner acting in its capacity as sole managing general partner of
the Issuer by the General Partner's Chairman of the Board, one of its Vice
Chairmen, its President, its Treasurer or one of its Vice Presidents under
its corporate seal reproduced thereon and attested by its Secretary or one
of its Assistant Secretaries. Coupons shall be executed on behalf of the
Issuer by the General Partner acting in its capacity as sole managing
general partner of the Issuer by the General Partner's Treasurer or any
Assistant Treasurer. The signature of any of these officers on the
Securities or any Coupons appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the
manual or facsimile signatures of individuals who were at any time the
proper officers of the Issuer shall bind the Issuer, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold such
offices at the date of such Securities or Coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Securities, together
with any Coupons appertaining thereto, executed by the Issuer, to the
Trustee for authentication and, provided that the Board Resolution and
Officers' Certificate or supplemental indenture or indentures with respect
to such Securities referred to in Section 301 and an Issuer Order for the
authentication and delivery of such Securities have been delivered to the
Trustee, the Trustee in accordance with the Issuer Order and subject to the
provisions hereof and of such Securities shall authenticate and deliver
such Securities. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities and any Coupons appertaining thereto, the Trustee shall be
entitled to receive, and (subject to Sections 315(a) through 315(d) of the
Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with the
provisions of this Indenture;
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining thereto,
have been complied with and that such Securities, and Coupons, when
completed by appropriate insertions, executed under the Issuer's
corporate seal and attested by duly authorized officers of the Issuer,
delivered by duly authorized officers of the Issuer to the Trustee for
authentication pursuant to this Indenture, and authenticated and
delivered by the Trustee and issued by the Issuer in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute legally valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms, except
as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent
conveyance, fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally, and subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and will entitle the Holders thereof
to the benefits of this Indenture, including the Guarantee; such
Opinion of Counsel need express no opinion as to the availability of
equitable remedies;
(c) all laws and requirements in respect of the execution
and delivery by the Issuer of such Securities and Coupons, if any,
have been complied with; and
(d) this Indenture has been qualified under the Trust
Indenture Act; and
(2) an Officers' Certificate and a Guarantor's Officers'
Certificate, in each case stating that, to the best knowledge of the
Persons executing such certificate, no event which is, or after notice or
lapse of time would become, an Event of Default with respect to any of the
Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such
opinion and certificate, with appropriate modifications, shall be delivered
at or before the time of issuance of the first Security of such series.
After any such first delivery, any separate request by the Issuer that the
Trustee authenticate Securities of such series for original issue will be
deemed to be a certification by the Issuer that all conditions precedent
provided for in this Indenture relating to authentication and delivery of
such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate owl Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee or if the
Trustee, being advised by counsel, determines that such action may not
lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Security a certificate of authentication
substantially in the form provided for in Section 202 or 611 executed by or
on behalf of the Trustee or by the Authenticating Agent by the manual
signature of one of its authorized officers. Such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Except as
permitted by Section 306 or 307 the Trustee shall not authenticate and
deliver any Bearer Security unless all Coupons appertaining thereto then
matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Issuer may
execute and deliver to the Trustee and, upon Issuer Order, the Trustee
shall authenticate and deliver, in the manner provided in Section 303,
temporary Securities in lieu thereof which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in
lieu of which they are issued, in registered form or, if authorized in or
pursuant to this Indenture, in bearer form with one or more Coupons or
without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Issuer executing
such Securities may determine, as conclusively evidenced by their execution
of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which
shall be exchanged in accordance with the provisions thereof, if temporary
Securities are issued, the Issuer shall cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive
Securities of the same series and containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities
shall be exchangeable for such definitive Securities upon surrender of such
temporary Securities at an Office or Agency for such Securities, without
charge to any Holder thereof. Upon surrender for cancellation of any one or
more temporary Securities (accompanied by any unmatured Coupons
appertaining thereto), the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations of the same series and
containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this
Indenture, shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance
with the conditions set forth in or pursuant to this Indenture. Unless
otherwise provided in or pursuant to this Indenture with respect to a
temporary global Security, until so exchanged the temporary Securities of
any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any,
the Issuer shall cause to be kept a register (each such register being
herein sometimes referred to as the "Security Register") at an Office or
Agency for such series in which, subject to such reasonable regulations as
it may prescribe, the Issuer or the Guarantor shall provide for the
registration of the Registered Securities of such series and of transfers
of the Registered Securities of such series. Such Office or Agency shall be
the "Security Registrar" for that series of Securities. Unless otherwise
specified in or pursuant to this Indenture or the Securities, the Trustee
shall be the initial Security Registrar for each series of Securities. The
Issuer shall have the right to remove and replace from time to time the
Security Registrar for any series of Securities; provided that no such
removal or replacement shall be effective until a successor Security
Registrar with respect to such series of Securities shall have been
appointed by the Issuer and shall have accepted such appointment by the
Issuer. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have
the right to examine the Security Register for such series at all
reasonable times. There shall be only one Security Register for each series
of Securities.
Upon surrender for registration of transfer of any Registered
Security of any series at any Office or Agency for such series, the Issuer
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Registered
Securities of the same series denominated as authorized in or pursuant to
this Indenture, of a like aggregate principal amount bearing a number not
contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized denominations,
and of a like aggregate principal amount, upon surrender of the Securities
to be exchanged at any Office or Agency for such series. Whenever any
Registered Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities of such series
containing identical terms, denominated as authorized in or pursuant to
this Indenture and in the same aggregate principal amount, upon surrender
of the Bearer Securities to be exchanged at any Office or Agency for such
series, with all unmatured Coupons and all matured Coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured Coupon or Coupons or matured Coupon or Coupons
in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Issuer, the Guarantor (if
such Bearer Securities are Guaranteed Securities) and the Trustee in an
amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Issuer,
the Guarantor (if such Bearer Securities are Guaranteed Securities) and the
Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have
been mad, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an Office or Agency for such
series located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such Office or
Agency for such series in exchange for a Registered Security of such series
and like tenor after the close of business at such Office or Agency on (i)
any Regular Record Date and before the opening of business at such Office
or Agency on the relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such Office or Agency on the
related date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the Coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, shall not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but shall
be payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Registered
Securities of such series may be exchanged for Bearer Securities upon such
terms and conditions as may be provided in or pursuant to this Indenture
with respect to such series.
Whenever any Securities are surrendered for exchange as
contemplated by the immediately preceding two paragraphs, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository
is not appointed by the Issuer within 90 days of the date the Issuer is so
informed in writing, (ii) the Issuer executes and delivers to the Trustee
an Issuer Order to the effect that such global Security shall be so
exchangeable, or (iii) an Event of Default has occurred and is continuing
with respect to the Securities. If the beneficial owners of interests in a
global Security are entitled to exchange such interests for definitive
Securities as the result of an event described in clause (i), (ii) or (iii)
of the preceding sentence, then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so
exchanged, the Issuer shall deliver to the Trustee definitive Securities in
such form and denominations as are required by or pursuant to this
Indenture, and of the same series, containing identical terms and in
aggregate principal amount equal to the principal amount of such global
Security, executed by the Issuer. On or after the earliest date on which
such interests may be so exchanged, such global Security shall be
surrendered from time to time by the U.S. Depository or such other
Depository as shall be specified in the Issuer Order with respect thereto,
and in accordance with instructions given to the Trustee and the U.S.
Depository or such other Depository, as the case may be (which instructions
shall be in writing but need not be contained in or accompanied by an
Officers' Certificate or be accompanied by an Opinion of Counsel), as shall
be specified in the Issuer Order with respect thereto to the Trustee, as
the Issuer's agent for such purpose, to be exchanged, in whole or in part,
for definitive Securities as described above without charge. The Trustee
shall authenticate and make available for delivery, in exchange for each
portion of such surrendered global Security, a like aggregate principal
amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such global Security to
be exchanged, which (unless such Securities are not issuable both as Bearer
Securities and as Registered Securities, in which case the definitive
Securities exchanged for the global Security shall be issuable only in the
form in which the Securities axe issuable, as provided in or pursuant to
this Indenture) shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof, but subject to the satisfaction of any
certification or other requirements to the issuance of Bearer Securities;
provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of
Securities of the same series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that (unless otherwise provided in
or pursuant to this Indenture) no Bearer Security delivered in exchange for
a portion of a global Security shall be mailed or otherwise delivered to
any location in the United States. Promptly following any such exchange in
part, such global Security shall be returned by the Trustee to such
Depository or the U.S. Depository, as the case may be, or such other
Depository or U.S. Depository referred to above in accordance with the
instructions of the Issuer referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange
occurs on or after (i) any Regular Record Date for such Security and before
the opening of business at such Office or Agency on the next Interest
Payment Date, or (ii) any Special Record Date for such Security and before
the opening of business at such Office or Agency on the related proposed
date for payment of interest or Defaulted Interest, as the case may be,
interest shall not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of such Registered
Security, but shall be payable on such Interest Payment Date or proposed
date for payment, as the case may be, only to the Person to whom interest
in respect of such portion of such global Security shall be payable in
accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Issuer and the
Guarantor, respectively, evidencing the same debt and entitling the Holders
thereof to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so
required by the Issuer or the Security Registrar for such Security) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar for such Security
duly executed by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer
or exchange, or redemption of Securities, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge.
Except as otherwise provided in or pursuant to this Indenture,
the Issuer shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of
business 15 days before the day of the selection for redemption of
Securities of like tenor and the same series under Section 1103 and ending
at the close of business on the day of such selection, or (ii) to register
the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except, to the
extent provided with respect to such Bearer Security, that such Bearer
Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent
with the provisions of this Indenture or (iv) to issue, register the
transfer of or exchange any Security which, in accordance with Is terms,
has been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions
of this Section 306, the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same
series containing identical terms and of like principal amount and bearing
a number not contemporaneously outstanding, with Coupons appertaining
thereto corresponding to the Coupons, if any, appertaining to the
surrendered Security.
If there be delivered to the Issuer, the Guarantor (if the
Security is a Guaranteed Security) and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each
of them and any agent of either of them harmless, then, in the absence of
notice to the Issuer, the Guarantor (if the Security is a Guaranteed
Security) or the Trustee that such Security or Coupon has been acquired by
a bona fide purchaser, the Issuer shall execute and, upon the Issuer's
request the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen Coupon
appertains with all appurtenant Coupons not destroyed, lost or stolen, a
new Security of the same series containing identical terms and of like
principal amount and bearing a number not contemporaneously outstanding,
with Coupons corresponding to the Coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in
case any mutilated, destroyed, lost or stolen Security or Coupon has become
or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Security, pay such Security or Coupon; provided,
however, that payment of principal of, any premium or interest on or any
Additional Amounts with respect to any Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an Office or Agency
for such Securities located outside the United States and, unless otherwise
provided in or pursuant to this Indenture, any interest on Bearer
Securities and any Additional Amounts with respect to such interest shall
be payable only upon presentation and surrender of the Coupons appertaining
thereto.
Upon the issuance of any new Security under this Section, the
Issuer may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Issuer and the
Guarantor (if the Security is a Guaranteed Security), whether or not the
destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of such series and
any Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or
generally, shall be exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or Coupons.
Section 307. Payment of Interest and Certain Additional
Amounts; Rights to Interest and Certain Additional
Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered
Security which shall be payable, and are punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name
such Security (or one or more Predecessor Securities) is registered as of
the close of business on the Regular Record Date for such interest. Unless
otherwise provided in or pursuant to this Indenture, in case a Bearer
Security is surrendered in exchange for a Registered Security after the
close of business at an Office or Agency for such Security on any Regular
Record Date therefor and before the opening of business at such Office or
Agency on the next succeeding Interest Payment Date therefor, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date and interest shall not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such
Bearer Security, but shall be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered
Security which shall be payable, but shall not be punctually paid or duly
provided for, on any Interest Payment Date for such Registered Security
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder thereof on the relevant Regular Record Date by virtue of having
been such Holder; and such Defaulted Interest may be paid by the Issuer or
the Guarantor (if the Registered Security is a Guaranteed Security), at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Issuer or the Guarantor (if the Registered Security is a
Guaranteed Security) may elect to make payment of any Defaulted Interest to
the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Issuer or the Guarantor (if the
Registered Security is a Guaranteed Security) shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on such
Registered Security and the date of the proposed payment, and at the same
time the Issuer or the Guarantor (if the Registered Security is a
Guaranteed Security), as the case may be, shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of the proposed
payment, such money when so deposited to be held in trust for the benefit
of the Person entitled to such Defaulted Interest as in this Clause
provided. Thereupon, the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Issuer or the
Guarantor, as the case may be, of such Special Record Date and, in the name
and at We expense of the Issuer or the Guarantor, as the case may be, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to
the Holder of such Registered Security (or a Predecessor Security thereof)
at his address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. The Trustee may, in its discretion, in
the name and at the expense of the Issuer or the Guarantor, as the case may
be, cause a similar notice to be published at least once in an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of
New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Person in
whose name such Registered Security (or a Predecessor Security thereof)
shall be registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2). In
case a Bearer Security is surrendered at the Office or Agency for such
Security in exchange for a Registered Security after the close of business
at such Office or Agency on any Special Record Date and before the opening
of business at such Office or Agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
without the Coupon relating to such Defaulted Interest and Defaulted
Interest shall not be payable on such proposed date of payment in respect
of the Registered Security issued in exchange for such Bearer Security, but
shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
(2) The Issuer or the Guarantor (if the Security is a Guaranteed
Security) may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which such Security may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Issuer or the Guarantor, as
the case may be, to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Issuer, interest on Registered Securities
that bear interest may be paid by mailing a check to the address of the
Person entitled thereto as such address shall appear in the Security
Register or by transfer to an account maintained by the payee with a bank
located in the United States.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
In the case of any Registered Security of any series that is
convertible, which Registered Security is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Registered Security with respect to which the Stated
Maturity is prior to such Interest Payment Date), interest with respect to
which the Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such
interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Registered Security (or one or more
predecessor Registered Securities) is registered at the close of business
on such Regular Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Registered Security
which is converted, interest with respect to which the Stated Maturity is
after the date of conversion of such Registered Security shall not be
payable.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Issuer, the Guarantor (if the Registered
Security is a Guaranteed Security), the Trustee and any agent of the Issuer
or the Guarantor (if the Registered Security is a Guaranteed Security) or
the Trustee may treat the Person in whose name such Registered Security is
registered in the Security Register as the owner of such Registered
Security for the purpose of receiving payment of principal of, any premium
and (subject to Sections 305 and 307) interest on and any Additional
Amounts with respect to such Registered Security and for all other purposes
whatsoever, whether or not any payment with respect to such Registered
Security shall be overdue, and neither the Issuer, nor the Guarantor, the
Trustee or any agent of the Issuer, the Guarantor or the Trustee shall be
affected by notice to the contrary.
The Issuer, the Guarantor (if the Bearer Security is a Guaranteed
Security), the Trustee and any agent of the Issuer, the Guarantor (if the
Bearer Security is a Guaranteed Security) or the Trustee may treat the
bearer of any Bearer Security or the bearer of any Coupon as the absolute
owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever,
whether or not any payment with respect to such Security or Coupon shall be
overdue, and neither the Issuer, nor the Guarantor, the Trustee or any
agent of the Issuer, the Guarantor or the Trustee shall be affected by
notice to the contrary.
No Holder of any beneficial interest in any global Security held
on its behalf by a Depository shall have any rights under this Indenture
with respect to such global Security, and such Depository may be treated by
the Issuer, the Trustee, and any agent of the Issuer, the Guarantor (if the
global Security is a Guaranteed Security) or the Trustee as the owner of
such global Security for all purposes whatsoever. None of the Issuer, the
Guarantor (if the global Security is a Guaranteed Security), the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a global Security or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and Coupons,
as well as Securities and Coupons surrendered directly to the Trustee for
any such purpose, shall be cancelled promptly by the Trustee. The Issuer or
the Guarantor (if the Security is a Guaranteed Security) may at any time
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Issuer or the Guarantor (if
the Security is a Guaranteed Security) may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by
the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as
expressly permitted by or pursuant to this Indenture. All cancelled
Securities and Coupons held by the Trustee shall be destroyed by the
Trustee, unless by an Issuer Order or Guarantor Order the Issuer or the
Guarantor, as the case may be, directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or
in any Security, interest on the Securities shall be computed on the basis
of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Issuer by an Issuer Order or of the
Guarantor by a Guarantor Order (if the applicable series of Securities is a
series of Guaranteed Securities), this Indenture shall cease to be of
further effect with respect to any series of Securities specified in such
Issuer Order or Guarantor Order and any Coupons appertaining thereto, and
the Trustee, on receipt of an Issuer Order or a Guarantor Order, at the
expense of the Issuer and the Guarantor, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such
series, when
(1) either
(a) all Securities of such series theretofore authenticated
and delivered and all Coupons appertaining thereto (other than (i)
Coupons appertaining to Bearer Securities of such series surrendered
in exchange for Registered Securities of such series and maturing
after such exchange whose surrender is not required or has been waived
as provided in Section 305, (ii) Securities and Coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) Coupons appertaining to
Securities of such series called for redemption and maturing after the
relevant Redemption Date whose surrender has been waived as provided
in Section 1107, and (iv) Securities and Coupons of such series for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i)
or (ii) below, any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Issuer, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Issuer and the Guarantor (if the Securities of such series are
Guaranteed Securities),
and the Issuer or the Guarantor (if the Securities of such series are
Guaranteed Securities), in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose, money in the Currency in which such Securities are
payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, including the
principal of, any premium and interest on, and any Additional Amounts with
respect to such Securities and any Coupons appertaining thereto, to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Maturity thereof, as the case may be;
(2) the Issuer or the Guarantor (if the Securities of such
series are Guaranteed Securities) has paid or caused to be paid all other
sums payable hereunder by the Issuer and the Guarantor with respect to the
Outstanding Securities of such series and any Coupons appertaining thereto;
and
(3) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel and the Guarantor has delivered to
the Trustee a Guarantor's Officers' Certificate Of the Securities of such
series are Guaranteed Securities), each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if
requested to do so with respect to Securities of such series as to which it
is Trustee and if the other conditions thereto axe met.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to any series of Securities, the obligations of the Issuer and
the Guarantor to the Trustee under Section 605 and, if money shall have
been deposited with the Trustee pursuant to subclause (b) of clause (1) of
this Section, the obligations of the Issuer and the Trustee with respect to
the Securities of such series under Sections 305, 306, 403, 1002 and 1003,
with respect to the payment of Additional Amounts, if any, with respect to
such Securities as contemplated by Section 1005 (but only to the extent
that the Additional Amounts payable with respect to such Securities exceed
the amount deposited in respect of such Additional Amounts pursuant to
Section 401(l)(b)), and with respect to any rights to exchange such
Securities into other securities shall survive.
Section 402. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 301, either or both of (i)
defeasance of the Securities of or within a series under clause (2) of this
Section 402 shall not be applicable with respect to the Securities of such
series or (H) covenant defeasance of the Securities of or within a series
under clause (3) of this Section 402 shall not be applicable with respect
to the Securities of such series, then such provisions, together with the
other provisions of this Section 402 (with such modifications thereto as
may be specified pursuant to Section 301 with respect to any Securities),
shall be applicable to such Securities and any Coupons appertaining
thereto, and the Issuer may at its option by Board Resolution, at any time,
with respect to such Securities and any Coupons appertaining thereto, elect
to have Section 402(2) or Section 402(3) be applied to such Outstanding
Securities and any Coupons appertaining thereto upon compliance with the
conditions set forth below in this Section 402.
(2) Upon the Issuer's exercise of the above option applicable to
this Section 402(2) with respect to any Securities of or within a series,
each of the Issuer and the Guarantor (if such Securities are Guaranteed
Securities) shall be deemed to have been discharged from its obligations
with respect to such Outstanding Securities and any Coupons appertaining
thereto and under the Guarantee in respect thereof (if applicable),
respectively, on the date the conditions set forth in clause (4) of this
Section 402 are satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Issuer and the Guarantor (if such Securities
are Guaranteed Securities) shall be deemed to have paid and discharged the
entire Indebtedness represented by such Outstanding Securities and any
Coupons appertaining thereto, and under the Guarantee in respect thereof
(if such Securities are Guaranteed Securities), which shall thereafter be
deemed to be "Outstanding" only for the purposes of clause (5) of this
Section 402 and the other Sections of this Indenture referred to in clauses
(i) and (ii) below, and to have satisfied all of its other obligations
under such Securities and any Coupons appertaining thereto, and under the
Guarantee in respect thereof (if such Securities are Guaranteed
Securities), and this Indenture insofar as such Securities and any Coupons
appertaining thereto, and the Guarantee in respect thereof (if such
Securities are Guaranteed Securities), are concerned (and the Trustee, at
the expense of the Issuer and the Guarantor (if such Securities are
Guaranteed Securities), shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of Holders of such
Outstanding Securities and any Coupons appertaining thereto to receive,
solely from the trust fund described in clause (4) of this Section 402 and
as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, with respect to, such Securities and any Coupons
appertaining thereto when such payments are due, and any rights of such
Holder to convert or exchange such Securities into Common Stock or other
securities, (ii) the obligations of the Issuer, the Guarantor (if the
Securities are Guaranteed Securities) and the Trustee with respect to such
Securities under Sections 305, 306, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated
by Section 1005 (but only to the extent that the Additional Amounts payable
with respect to such Securities exceed the amount deposited in respect of
such Additional Amounts pursuant to Section 401(4)(a) below), and with
respect to any rights to exchange such Securities into other securities,
(iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (iv) this Section 402. The Issuer may exercise its option
under this Section 402(2) notwithstanding the prior exercise of its option
under clause (3) of this Section 402 with respect to such Securities and
any Coupons appertaining thereto.
(3) Upon the Issuer's exercise of the above option applicable to
this Section 4020) with respect to any Securities of or within a series,
each of the Issuer and the Guarantor (if the Securities are Guaranteed
Securities) shall be released from its obligations under Sections 1004,
1006, 1007, 1008, 1012, 1014 and 1015 and, to the extent specified pursuant
to Section 301, any other covenant applicable to such Securities, with
respect to such Outstanding Securities and any Coupons appertaining
thereto, and the Guarantee in respect thereof (if the Securities are
Guaranteed Securities), on and after the date the conditions set forth in
clause (4) of this Section 402 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any Coupons appertaining thereto
shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with any such covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any Coupons appertaining thereto, the Issuer and
the Guarantor (if applicable) may omit to comply with, and shall have no
liability in respect of, any term, condition or limitation set forth in any
such Section or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default
under Section 501(4) or 501(9) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such
Securities and Coupons appertaining thereto and the Guarantee in respect
thereof (if the Securities are Guaranteed Securities) shall be unaffected
thereby.
(4) The following shall be the conditions to application of
clause (2) or (3) of this Section 402 to any Outstanding Securities of or
within a series and any Coupons appertaining thereto and the Guarantee (if
the Securities are Guaranteed Securities) in respect thereof:
(a) The Issuer or the Guarantor shall irrevocably have
deposited or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 607 who shall agree to
comply with the provisions of this Section 402 applicable to it) as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any Coupons appertaining
thereto, (1) an amount in Dollars or in such Foreign Currency in which
such Securities and any Coupons appertaining thereto are then
specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto
(determined on the basis of the Currency in which such Securities and
Coupons appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of
principal of (and premium, if any) and interest, if any, on such
Securities and any Coupons appertaining thereto, money in an amount,
or (3) a combination thereof, in any case, in an amount, sufficient,
without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (y) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any Coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (z) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding
Securities and any Coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Issuer or the Guarantor (if the Securities are Guaranteed Securities)
is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to such
Securities and any Coupons appertaining thereto shall have occurred
and be continuing on the date of such deposit and, with respect to
defeasance only, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under clause (2) of this
Section 402, the Issuer or the Guarantor shall have delivered to the
Trustee an Opinion of Counsel stating that (i) the Issuer or the
Guarantor (if the Securities are Guaranteed Securities) has received
from the Internal Revenue Service a letter ruling, or there has been
published by the Internal Revenue Service a Revenue Ruling, or (ii)
there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at We same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under clause (3) of this
Section 402, the Issuer or the Guarantor shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of such
Outstanding Securities and any Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(f) The Issuer or the Guarantor (if the Securities are
Guaranteed Securities) shall have delivered to the Trustee an
Officers' Certificate (if applicable) or a Guarantor's Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance under
clause (2) or (3) of this Section 402 (as the case may be) have been
complied with.
(g) Notwithstanding any other provisions of this Section
402(4), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Issuer or the Guarantor (if
the Securities are Guaranteed Securities) in connection therewith
pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 402(5) and Section 403, the "Trustee") pursuant to
clause (4) of Section 402 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such
Securities and any Coupons appertaining thereto and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities and any Coupons appertaining thereto of all sums
due and to become due thereon in respect of principal (and premium, if any)
and interest and Additional Amounts, if any, but such money need not be
segregated from other funds except to the extent required by law.
Unless other-wise specified in or pursuant to this Indenture or
any Security, if, after a deposit referred to in Section 402(4)(a) has been
made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 301 or the terms
of such Security to receive payment in a Currency other than that in which
the deposit pursuant to Section 402(4)(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the Foreign
Currency in which the deposit pursuant to Section 402(4)(a) has been made,
the indebtedness represented by such Security and any Coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any),
and interest, if any, on, and Additional Amounts, if any, with respect to,
such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a
result of such election or Conversion Event based on (x) in the case of
payments made pursuant to clause (a) above, the applicable market exchange
rate for such Currency in effect on the second Business Day prior to each
payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as
feasible) at the time of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any tax,
fee or other charge, imposed on or assessed against the Government
Obligations deposited pursuant to this Section 402 or the principal or
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of such Outstanding
Securities and any Coupons appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer
Request, or the Guarantor, as the case may be, upon the Guarantor Request,
any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 402 which,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect a defeasance or covenant defeasance, as
applicable, in accordance with this Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money and Government Obligations deposited with the Trustee pursuant to
Section 401 or 402 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the Coupons and this Indenture, to
the payment, either directly or through any Paying Agent (including the
Issuer acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal, premium, interest and
Additional Amounts for whose payment such money has or Government
Obligations have been deposited with or received by the Trustee; but such
money and Government Obligations need not be segregated from other funds
except to the extent required by law.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is specifically
deleted or modified in or pursuant to the supplemental indenture, Board
Resolution or Officers' Certificate establishing the terms of such Series
pursuant to this Indenture:
(1) default in the payment of any interest on or any Additional
Amounts payable in respect of any Security of such series when such
interest becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on
any Security of such series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment when and
as due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Issuer or the Guarantor (if the Securities of such series
are Guaranteed Securities) in this Indenture or the Securities (other than
a covenant or warranty a default in the performance or the breach of which
is elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of a series of
Securities other than such series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Issuer and the Guarantor (if the Securities of such
series are Guaranteed Securities) by the Trustee or to the Issuer, the
Guarantor (if the Securities of such series are Guaranteed Securities) and
the Trustee by the Holders of at lean 2516 in principal amount of the
Outstanding Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Issuer,
the Guarantor (if the Securities of such series are Guaranteed
Securities) or any "significant subsidiary" of the Issuer or the
Guarantor in Article 1, Section 1-02 of Regulation S-X under the
Securities Act of 1933, as amended ("Significant Subsidiary") in an
involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Issuer, the Guarantor
(if the Securities of such series are Guaranteed Securities) or any
Significant Subsidiary to be insolvent, or approving a petition
seeking reorganization, arrangement, adjustment or composition of the
Issuer, the Guarantor (if the Securities of such series are Guaranteed
Securities) or any Significant Subsidiary and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(c) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other similar
official of the Issuer, the Guarantor (if the Securities of such
series are Guaranteed Securities) or any Significant Subsidiary or of
any substantial part of the property of the Issuer, the Guarantor (if
the Securities of such series are Guaranteed Securities) or any
Significant Subsidiary, as the case may be, or ordering the winding up
or liquidation of the affairs of the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any
Significant Subsidiary; or
(6) the commencement by the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any Significant
Subsidiary of a voluntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or of a voluntary
proceeding seeking to be adjudicated insolvent or the consent by the
Issuer, the Guarantor (if the Securities of such series are Guaranteed
Securities) or any Significant Subsidiary to the entry of a decree or order
for relief in an involuntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any insolvency proceedings against it, or the filing by the Issuer, the
Guarantor (if the Securities of such series are Guaranteed Securities) or
any Significant Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by the
Issuer, the Guarantor (if the Securities of such series are Guaranteed
Securities) or any Significant Subsidiary to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee or similar official of the Issuer, the
Guarantor (if the Securities of such series are Guaranteed Securities) or
any Significant Subsidiary or any substantial part of the property of the
Issuer, the Guarantor (if the Securities of such series are Guaranteed
Securities) or any Significant Subsidiary or the making by the Issuer, the
Guarantor (if the Securities of such series are Guaranteed Securities) or
any Significant Subsidiary of an assignment for the benefit of creditors,
or the taking of corporate action by the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any Significant
Subsidiary in furtherance of any such action; or
(7) the Issuer, the Guarantor (if the Securities of such series
are Guaranteed Securities), any Subsidiary in which the Issuer has
invested, or is committed or otherwise obligated to invest, at least
$20,000,000 in capital or any entity in which the Issuer is the general
partner shall fail to pay any principal of, premium or interest on or any
other amount payable in respect of, any recourse Indebtedness that is
outstanding in a principal or notional amount of at least $20,000,000 (or
the equivalent thereof in one or more other currencies), either
individually or in the aggregate (but excluding Indebtedness outstanding
hereunder), of the Issuer and its consolidated Subsidiaries, taken as a
whole, when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified
in any agreement or instrument relating to such Indebtedness, or any other
event shall occur or condition shall exist under any agreement or
instrument evidencing, securing or otherwise relating to any such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity
of such Indebtedness or otherwise to cause, or to permit the holder or
holders thereof ( or a trustee or agent on behalf of such holders) to cause
such Indebtedness to mature prior to its stated maturity; or
(8) one or more final, non-appealable judgments or orders for
the payment of money aggregating $20,000,000 (or the equivalent thereof in
one or more other currencies) or more are rendered against one or more of
the Issuer, the Guarantor (if the Securities of such series are Guaranteed
Securities), any Subsidiary in which the Issuer has invested, or is
committed or otherwise obligated to invest, at least $20,000,000 in capital
and any entity in which the Issuer is the general partner and remain
unsatisfied and either (i) enforcement proceedings shall have been
commenced by any creditor upon any such judgment or order or (ii) there
shall be a period of at least 60 days after entry thereof during which a
stay of enforcement of any such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; provided, however, that any
such judgment or order shall not give rise to an Event of Default under
this subsection (8) if and for so long as (A) the amount of such judgment
or order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering full payment thereof and (B) such
insurer has been notified, and has not disputed the claim made for payment,
of the amount of such judgement or order; or
(9) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any series
at the time Outstanding (other than an Event of Default specified in clause
(6) or (7) of Section 501) occurs and is continuing, then the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series may declare the principal (or, if any Securities
are Original Issue Discount Securities or Indexed Securities, such portion
of the principal as may be specified in the terms thereof) of all the
Securities of such series, or such lesser amount as may be provided for in
the Securities of such series, to be due and payable immediately, by a
notice in writing to the Issuer and the Guarantor (if the Securities are
Guaranteed Securities) (and to the Trustee if given by the Holders), and
upon any such declaration such principal or such lesser amount shall become
immediately due and payable.
If an Event of Default specified in clause (6) or (7) of Section
501 occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in
the Securities of such series) shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the
Trustee or any Holder of any Security of that series.
At any time after Securities of any series have been accelerated
and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series, by written notice to the Issuer, the Guarantor
(if the Securities are Guaranteed Securities) and the Trustee, may rescind
and annul such declaration and its consequences if
(1) the Issuer or the Guarantor (if the Securities are
Guaranteed Securities) has paid or deposited with the Trustee a sum of
money sufficient to pay
(a) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such series and
any Coupon appertaining thereto,
(b) the principal of and any premium on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon and any Additional Amounts with
respect thereto at the rate or rates borne by or provided for in such
Securities,
(c) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue installments of
any interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due the
Trustee under Section 606; and
(2) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to Securities of such
series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Issuer covenants and the Guarantor (if the Securities are
Guaranteed Securities) covenants, in each case, that if
(1) default is made in the payment of any installment of
interest on or any Additional Amounts with respect to any Security or any
Coupon appertaining thereto when such interest or Additional Amounts shall
have become due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of or any
premium on any Security at its Maturity,
the Issuer or the Guarantor (if the Securities are Guaranteed Securities),
as the case may be, shall, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities and any Coupons
appertaining thereto, the whole amount of money then due and payable with
respect to such Securities and any Coupons appertaining thereto, with
interest upon the overdue principal, any premium and, to the extent that
payment of such interest shall be legally enforceable, upon any overdue
installments of interest and Additional Amounts at the rate or rates borne
by or provided for in such Securities, and, in addition thereto, such
further amount of money as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all
other amounts due to the Trustee under Section 606.
If the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the
Trustee, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the money so due
and unpaid, and may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Issuer or the Guarantor (if the
Securities axe Guaranteed Securities) or any other obligor upon such
Securities and any Coupons appertaining thereto and collect the monies
adjudged or decreed to be payable in the manner provided by law out of the
property of the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) or any other obligor upon such Securities and any Coupons
appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series and any Coupons appertaining thereto by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or such Securities or in aid of the
exercise of any power granted herein or therein, or to enforce any other
proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Issuer, the
Guarantor (if the Securities are Guaranteed Securities) or any other
obligor upon the Securities or the property of the Issuer, the Guarantor
(if the Securities are Guaranteed Securities) or such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall Zen be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Issuer or the Guarantor (if the Securities are
Guaranteed Securities) for the payment of any overdue principal, premium,
interest or Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series, of
the principal and any premium, interest and Additional Amounts owing and
unpaid in respect of the Securities and any Coupons appertaining thereto
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder of Securities or any Coupons to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders of Securities or any Coupons, to pay
to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Security or any Coupon any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or Coupons or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder of a Security or any Coupon in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of
the Securities or Coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or Coupons or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery or judgment, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, shall be for the ratable
benefit of each and every Holder of a Security or Coupon in respect of
which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal, or any premium, interest or Additional Amounts, upon
presentation of the Securities or Coupons, or both, as the case may be, and
the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any Coupons for principal and any premium,
interest and Additional Amounts in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities and Coupons for
principal and any premium, interest and Additional Amounts,
respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series or any Coupons
appertaining thereto shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Security to affect, disturb or prejudice
the rights of any other such Holders or Holders of Securities of any other
series, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 508. Unconditional Right of Holders to Receive
Principal and any Premium, Interest and Additional
Amounts.
Notwithstanding any other provision in this Indenture, the Holder
of any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and
(subject to Sections 305 and 307) interest on, and any Additional Amounts
with respect to such Security or payment of such Coupon, as the case may
be, on the respective Stated Maturity or Maturities therefor specified in
such Security or Coupon (or, in the case of redemption, on the Redemption
Date or, in the case of repayment at the option of such Holder if provided
in or pursuant to this Indenture, on the date such repayment is due) and to
institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has
instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Issuer, the Guarantor (if the Security is a
Guaranteed Security), the Trustee and each such Holder shall, subject to
any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and each such Holder shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons in
the last paragraph of Section 306, no right or remedy herein conferred upon
or reserved to the Trustee or to each and every Holder of a Security or a
Coupon is intended to be exclusive of any other right or remedy, and every
right and remedy, to the extent permitted by law, shall be cumulative and
in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not, to
the extent permitted by law, prevent the concurrent assertion or employment
of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or Coupon to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to any Holder of a
Security or a Coupon may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by such Holder, as the case may
be.
Section 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series and any Coupons appertaining
thereto, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of
the other Holders of Securities of such series not joining in such action.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series on behalf of the Holders of all
the Securities of such series and any Coupons appertaining thereto may
waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of, any premium or interest
on, or any Additional Amounts with respect to, any Security of such series
or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
The Issuer covenants and the Guarantor covenants, in each case,
that (to the extent that it may lawfully do so) it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Issuer and the Guarantor each
expressly waives (to the extent that it may lawfully do so) all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
Section 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of any undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 515 shall not apply
to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional
Amounts, if any, with respect to any Security on or after the respective
Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date, and, in the case of repayment,
on or after the date for repayment) or for the enforcement of the right, if
any, to convert or exchange any Security into Common Stock or other
securities in accordance with its terms.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture
Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Issuer Request or an Issuer Order or
of the Guarantor mentioned herein shall be sufficiently evidenced by a
Guarantor Request or Guarantor Order (in each case, other than deliver, of
any Security, together with any Coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 303 which shall
be sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution or
by the Guarantor's Board of Directors may be sufficiently evidenced by a
Guarantor's Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence shall be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate or, if such
matter pertains to the Guarantor, a Guarantor's Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Issuer and the Guarantor, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(8) subject to the provisions of Section 602 hereof and Sections
315(a) through 315(d) of the Trust Indenture Act, the Trustee shall not be
charged with knowledge of any Event of Default described in Section 501(4),
(5), (6), (7) or (8) hereof unless a Responsible Officer of the Trustee
shall have actual knowledge of such Event of Default.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail
to all Holders of Securities of such series entitled to receive reports
pursuant to Section 703(3), notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any), or interest, if any, on, or Additional
Amounts or any sinking fund or purchase fund installment with respect to,
any Security of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of
the Trustee in good faith determines that the withholding of such notice is
in the best interest of the Holders of Securities and Coupons of such
series; and provided, further, that in the case of any default of the
character specified in Section 501(8) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
Section 603. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken
as the statements of the Issuer or the Guarantor (if the Securities are
Guaranteed Securities), as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Coupons, except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility
and Qualification on Form T-1 supplied to the Issuer are true and accurate,
subject to the qualifications set forth therein. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by
the Issuer of the Securities or the proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other Person that may be an agent of the Trustee
or the Guarantor or the Issuer, in its individual or any other capacity,
may become the owner or pledgee of Securities or Coupons and, subject to
Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with
the Issuer or the Guarantor with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other Person.
Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by
the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law and shall be held uninvested. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the Issuer or the
Guarantor.
Section 606. Compensation and Reimbursement.
The Issuer and the Guarantor jointly and severally agree:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee's negligence
or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any claim
or liability in connection with the exercise or performance of any of their
powers or duties hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Issuer
and the Guarantor under this Section, the Trustee shall have a Lien prior
to the Securities of any series upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the
payment of principal of, and premium or interest on or any Additional
Amounts with respect to Securities or any Coupons appertaining thereto.
Amy compensation or expense incurred by the Trustee after a
default specified by Section 501 is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law.
"Trustee" for purposes of this Section 606 shall include any predecessor
Trustee but the negligence or bad faith of any Trustee shall not affect the
rights of any other Trustee under this Section 606.
Section 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a
Corporation, organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, eligible
under Section 310(a)(1) of the Trust Indenture Act to act as trustee under
an indenture qualified under the Trust Indenture Act and that has a
combined capital and surplus (computed in accordance with Section 310(a)(2)
of the Trust Indenture Act) of at least $50,000,000 subject to supervision
or examination by Federal or state authority. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 608. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee pursuant to
Section 609.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Issuer and the Guarantor (if the Securities are Guaranteed Securities). If
the instrument of acceptance by a successor Trustee required by Section 609
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and the Issuer and the Guarantor (if the Securities are Guaranteed
Securities).
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with
respect to Securities of any series after written request therefor by
the Issuer, the Guarantor (if the Securities are Guaranteed
Securities) or any Holder of a Security of such series who has been a
bona fide Holder of a Security of such series for at least six months,
or
(b) the Trustee shall cease to be eligible under Section
607 and shall fail to resign after written request therefor by the
Issuer, the Guarantor (if the Securities are Guaranteed Securities) or
any such Holder, or
(c) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer, by or pursuant to a Board
Resolution, or the Guarantor (if the Securities are Guaranteed Securities),
by or pursuant to a Guarantor's Board Resolution, may remove the Trustee
with respect to all Securities or the Securities of such series, or (ii)
subject to Section 315(e) of the Trust Indenture Act, any Holder of a
Security who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(1) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Issuer, by
or pursuant to a Board Resolution, and the Guarantor (if the Securities are
Guaranteed Securities), by or pursuant to a Guarantor's Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 609. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Issuer, the
Guarantor (if the Securities are Guaranteed Securities) and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 609, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Issuer and the Guarantor (if the Securities are
Guaranteed Securities). If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Issuer and the
Guarantor (if the Securities are Guaranteed Securities) or the Holders of
Securities and accepted appointment in the manner required by Section 609,
any Holder of a Security who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of
such series.
(2) The Issuer shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Registered Securities, if any, of such
series as their names and addresses appear in the Security Register and, if
Securities of such series are issued as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of
Payment located outside the United States. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
Section 609. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall
execute, acknowledge and deliver to the Issuer, the Guarantor and the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties
hereunder of the retiring Trustee; but, on the request of the Issuer, the
Guarantor or such successor Trustee, such retiring Trustee, upon payment of
its charges, shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee
and, subject to Section 1003, shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Issuer,
the Guarantor (if any of such series of Securities is a series of
Guaranteed Securities), the retiring Trustee and such successor Trustee
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, such successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other Trustee
hereunder, and, upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall have
no further responsibility for be exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates;
but, on request of the Issuer, the Guarantor, if applicable, or such
successor Trustee, such retiring Trustee, upon payment of its charges with
respect to the Securities of that or those series to which the appointment
of such successor relates and subject to Section 1003 shall duly assign,
transfer and deliver to such successor Trustee, to the extent contemplated
by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject
to its claim, if any, provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a
successor Trustee, the Issuer and the Guarantor shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in
paragraph 0) or (2) of this Section, as the case may to.
(4) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such successor
Person shall be qualified and eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to
Business.
Any Corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any Corporation succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated but not delivered by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents
acceptable to the Issuer with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of that or those series issued upon original issue, exchange,
registration of transfer, partial redemption or partial repayment or
pursuant to Section 306, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent.
Each Authenticating Agent shall be acceptable to the Issuer and
the Guarantor and, except as provided in or pursuant to this Indenture,
shall at all times be a corporation that would be permitted by the Trust
Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act, is authorized under applicable law and by its charter
to act as an Authenticating Agent and has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture Act)
of at least $50,000,000. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect specified in this
Section.
Any Corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Corporation succeeding to all
or substantially all of the corporate agency or corporate trust business of
an Authenticating Agent, shall be the successor of such Authenticating
Agent hereunder, provided such Corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee, the Guarantor and the Issuer. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent, the Guarantor and the
Issuer. Upon receiving such a notice of' resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Issuer and the Guarantor and shall (i) mail written
notice of such appointment by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of the series with respect to
which such Authenticating Agent shall serve, as their names and addresses
appear in the Security Register, and (ii) if Securities of the series are
issued as Bearer Securities, publish notice of such appointment at least
once in an Authorized Newspaper in the place where such successor
Authenticating Agent has its principal office if such office is located
outside the United States. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Issuer agrees and the Guarantor agrees to pay each
Authenticating Agent from time to time reasonable compensation for its
services under this Section. If the Trustee makes such payments, it shall
be entitled to be reimbursed for such payments, subject to the provisions
of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable
to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or
more series of Securities pursuant to this Section, the Securities of such
series may have endorsed thereon, in addition to or in lieu of the
Trustee's certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
____________________________________,
As Trustee
By _________________________________
As Authenticating Agent
By _________________________________
Authorized Officer
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Issuer wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in
writing (which writing need not be accompanied by or contained in an
Officers' Certificate by the Issuer), shall appoint in accordance with this
Section an Authenticating Agent having an office in a Place of Payment
designated by the Issuer with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND ISSUER
Section 701. Issuer and the Guarantor to Furnish Trustee Names
and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Issuer and the Guarantor (with respect to Securities of each series that
are Guaranteed Securities) shall furnish or cause to be furnished to the
Trustee
(1) semi-annually with respect to Securities of each series, a list, in
each case in such form as the Trustee may reasonably require, of the
names and addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Issuer or the Guarantor (with respect to
Securities of each series that are Guaranteed Securities) of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 702. Preservation of Information; Communications to
Holders.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding
the same, agrees with the Issuer, the Guarantor and the Trustee that
neither the Issuer, the Guarantor, the Trustee, any Paying Agent or any
Security Registrar shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders of
Securities in accordance with Section 312(c) of the Trust Indenture Act,
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 703. Reports by Trustee.
(1) Within 60 days after September 15 of each year commencing
with the first September 15 following the first issuance of Securities
pursuant to Section 301, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of
the Trust Indenture Act, a brief report dated as of such September 15 with
respect to any of the events specified in said Section 313(a) which may
have occurred since the later of the immediately preceding September 15 and
the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
Section 704. Reports by Issuer and Guarantor.
The Issuer and the Guarantor, pursuant to Section 314(a) of the
Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Issuer or
the Guarantor, as the case may be, is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe)
which the Issuer or the Guarantor, as the case may be, may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Issuer or the Guarantor, as the case may be, is
not required to file information, documents or reports pursuant to either
of said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Issuer or the Guarantor, as the case may be, with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by the Issuer or the Guarantor pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Issuer May Consolidate, Etc., Only on Certain
Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Issuer with or into any
other Person or Persons (whether or not affiliated with the Issuer), or
successive consolidations or mergers in which either the Issuer will be the
continuing entity or the Issuer or its successor or successors shall be a
party or parties, or shall prevent any conveyance, transfer or lease of all
or substantially all of the property of the Issuer, to any other Person
(whether or not affiliated with the Issuer); provided, however, that:
(1) in case the Issuer shall consolidate with or merge into
another Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the entity formed by such
consolidation or into which the Issuer is merged or the Person which
acquires by conveyance or transfer, or which leases, all or substantially
all of the properties of the Issuer shall be a Person organized and
existing under the laws of the United States of America, any state thereof
or the District of Columbia and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee) supplemental
hereto, executed by the successor Person and the Guarantor and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of, any premium and interest on and any Additional
Amounts with respect to all the Securities and the performance of every
obligation in this Indenture and the Outstanding Securities on the part of
the Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default or event which, after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be continuing;
and
(3) either the Issuer or the successor Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer
or lease and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
No such consolidation, merger, conveyance, transfer or lease
shall be permitted by this Section unless prior thereto the Guarantor shall
have delivered to the Trustee a Guarantor's Officers' Certificate and an
Opinion of Counsel, each stating that the Guarantor's obligations hereunder
shall remain in full force and effect thereafter.
Section 802. Successor Person Substituted for Issuer.
Upon any consolidation by the Issuer with or merger of the Issuer
into any other Person or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Issuer to any Person
in accordance with Section 801, the successor Person formed by such
consolidation or into which the Issuer is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Issuer under this
Indenture with the same effect as if such successor Person had been named
as the Issuer herein; and thereafter, except in the case of a lease, the
predecessor Person shall be released from all obligations and covenants
under this Indenture, the Securities and the Coupons.
Section 803. Guarantor May Consolidate, Etc., Only on Certain
Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Guarantor with or into any
other Person or Persons (whether or not affiliated with the Guarantor), or
successive consolidations or mergers in which either the Guarantor will be
the continuing entity or the Guarantor or its successor or successors shall
be a party or parties, or shall prevent any conveyance, transfer or lease
of all or substantially all of the property of the Guarantor, to any other
Person (whether or not affiliated with the Guarantor); provided, however,
that:
(1) in case the Guarantor shall consolidate with or merge into
another Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the entity formed by such
consolidation or into which the Guarantor is merged or the Person which
acquires by conveyance or transfer, or which leases, all or substantially
all of the properties and assets of the Guarantor shall be a Person
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one Trustee)
supplemental hereto, executed and delivered by the Issuer and the successor
Person to the Trustee, in form satisfactory to the Trustee, the obligation
of the Guarantor under the Guarantee and the performance of every other
covenant of this Indenture on the part of the Guarantor to be performed or
observed;
(2) immediately after giving effect to such transaction, no
Event of Default and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing;
and
(3) each of the Guarantor and the successor Person has delivered
to the Trustee a Guarantor's Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer
or lease and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
Section 804. Successor Person Substituted for Guarantor.
Upon any consolidation or merger or any conveyance, transfer or
lease of all or substantially all of the properties and assets of the
Guarantor to any Person in accordance with Section 803, the successor
Person formed by such consolidation or into which the Guarantor is merged
or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the
Guarantor under this Indenture with the same effect as if such successor
Person had been named as the Guarantor herein, and thereafter, except in
the case of a lease to another Person, the predecessor Person shall be
released from all obligations and covenants under this Indenture.
Section 805. Assumption by Guarantor.
The Guarantor, or a subsidiary thereof that is a Corporation, may
directly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, any premium and interest on and any
Additional Amounts with respect to all the Guaranteed Securities and the
performance of every covenant of this Indenture on the part of the Issuer
to be performed or observed. Upon any such assumption, the Guarantor or
such subsidiary shall succeed to, and be substituted for and may exercise
every right and power of, the Issuer under this Indenture with the same
effect as if the Guarantor or such subsidiary had been named as the Issuer
herein and the Issuer shall be released from all obligations and covenants
with respect to the Guaranteed Securities. No such assumption shall be
permitted unless the Guarantor has delivered to the Trustee (i) a
Guarantor's Officers' Certificate and an Opinion of Counsel, each stating
that such assumption and supplemental indenture comply with this Article,
and that all conditions precedent herein provided for relating to such
transaction have been complied with and that, in the event of assumption by
a subsidiary, the Guarantee and all other covenants of the Guarantor herein
remain in full force and effect and (ii) an opinion of independent counsel
that the Holders of Guaranteed Securities or related Coupons (assuming such
Holders are only taxed as residents of the United States) shall have no
materially adverse United States federal tax consequences as a result of
such assumption, and that, if any Securities are then listed on the New
York Stock Exchange, that such Securities shall not be delisted as a result
of such assumption.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders of Securities or Coupons, the
Issuer (when authorized by or pursuant to a Board Resolution), the
Guarantor (when authorized by a Guarantor's Board Resolution) and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to the Issuer
or the Guarantor, and the assumption by any such successor of the covenants
of the Issuer or the Guarantor, as the case may be, contained herein and in
the Securities; or
(2) to add to the covenants of the Issuer or the Guarantor for
the benefit of the Holders of all or any series of Securities (as shall be
specified in such supplemental indenture or indentures) or to surrender any
right or power herein conferred upon the Issuer or the Guarantor; or
(3) to add any additional Events of Default with respect to all
or any series of Securities (as shall be specified in such supplemental
indenture); or
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of, any
premium or interest on or any Additional Amounts with respect to
Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be exchanged for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any Coupons appertaining thereto in any
material respect; or
(5) to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
and any Coupons appertaining thereto as permitted by Sections 201 and 301;
or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 609; or
(9) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture which shall not adversely affect
the interests of the Holders of Securities of any series then Outstanding
or any Coupons appertaining thereto in any material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to Article Four,
provided that any such action shall not adversely affect the interests of
any Holder of a Security of such series and any Coupons appertaining
thereto or any other Security or Coupon in any material respect; or
(11) to effect the assumption by the Guarantor or a subsidiary
thereof pursuant to Section 805; or
(12) to amend or supplement any provision contained herein or in
any supplemental indenture, provided that no such amendment or supplement
shall materially adversely affect the interests of the Holders of any
Securities then Outstanding.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the
Issuer, the Guarantor (if the Securities are Guaranteed Securities) and the
Trustee, the Issuer (when authorized by or pursuant to an Issuer's Board
Resolution), the Guarantor (when authorized by or pursuant to a Guarantor's
Board Resolution), if applicable, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture or of the
Securities of such series; provided, however, that no such supplemental
indenture, without the consent of the Holder of each Outstanding Security
affected thereby, shall
(1) change the Stated Maturity of the principal of, or any
premium or installment of interest on or any Additional Amounts with
respect to, any Security, or reduce the principal amount thereof or the
rate (or modify the calculation of such rate) of interest thereon or any
Additional Amounts with respect thereto, or any premium payable upon the
redemption thereof or otherwise, or change the obligation of the Issuer to
pay Additional Amounts pursuant to Section 1005 (except as contemplated by
Section 801(l) and permitted by Section 901(l)), or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, change the redemption provisions or adversely affect the right
of repayment at the option of any Holder as contemplated by Article
Thirteen, or change the Place of Payment, Currency in which the principal
of, any premium or interest on, or any Additional Amounts with respect to
any Security is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date or, in the
case of repayment at the option of the Holder, on or after the date for
repayment or in the case of change in control), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or voting,
or
(3) modify or effect in any manner adverse to the Holders the
terms and conditions of the obligations of the Guarantor in respect of the
due and punctual payments of principal of, or any premium or interest on or
any sinking fund requirements or Additional Amounts with respect to,
Guaranteed Securities, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which shall have been included
expressly and solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 315 of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of a Security theretofore or thereafter
authenticated and delivered hereunder and of any Coupon appertaining
thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Issuer shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 906. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium, Interest and
Additional Amounts.
The Issuer covenants and agrees for the benefit of the Holders of
the Securities of each series that it will duly and punctually pay the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities of such series in accordance with the terms
thereof, any Coupons appertaining thereto and this Indenture. Any interest
due on any Bearer Security on or before the Maturity thereof, and any
Additional Amounts payable with respect to such interest, shall be payable
only upon presentation and surrender of the Coupons appertaining thereto
for such interest as they severally mature.
Section 1002. Maintenance of Office or Agency.
The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not
Bearer Securities, except as otherwise provided below, unless such Place of
Payment is located outside the United States) may be presented or
surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange, and where notices and demands to
or upon the Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) in respect of the Securities of such series relating thereto
and this Indenture may be served. If Securities of a series are issuable as
Bearer Securities, the Issuer or the Guarantor (if any Guaranteed
Securities are Outstanding) shall maintain, subject to any laws or
regulations applicable thereto, an Office or Agency in a Place of Payment
for such series which is located outside the United States where Securities
of such series and any Coupons appertaining thereto may be presented and
surrendered for payment; provided, however, that if the Securities of such
series are listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) shall maintain a Paying Agent in London, Luxembourg or any
other required city located outside the United States, as the case may be,
so long as the Securities of such series are listed on such exchange. The
Issuer or the Guarantor (if any Guaranteed Securities are Outstanding) will
give prompt written notice to the Trustee of the location, and any change
in the location, of such Office or Agency. If at any time the Issuer or the
Guarantor shall fail to maintain any such required Office or Agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of
such series and any Coupons appertaining thereto may be presented and
surrendered for payment at the place specified for the purpose with respect
to such Securities as provided in or pursuant to this Indenture, and the
Issuer and the Guarantor each hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect
to Bearer Securities shall be made at any Office or Agency in the United
States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, if amounts owing with respect to any Bearer Securities
shall be payable in Dollars, payment of principal of, any premium or
interest on and any Additional Amounts with respect to any such Security
may be made at the Corporate Trust Office of the Trustee or any Office or
Agency designated by the Issuer in the City of City of ______, _______, if
(but only if) payment of the full amount of such principal, premium,
interest or Additional Amounts at all offices outside the United States
maintained for such purpose by the Issuer in accordance with this Indenture
is illegal or effectively precluded by exchange controls or other similar
restrictions.
The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) may also from time to time designate one or more other Offices
or Agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer or the Guarantor of its
obligation to maintain an Office or Agency in each Place of Payment for
Securities of any series for such purposes. The Issuer or the Guarantor (if
any Guaranteed Securities are Outstanding) shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in
the location of any such other Office or Agency. Unless otherwise provided
in or pursuant to this Indenture, the Issuer and the Guarantor (with
respect to any Guaranteed Securities) each hereby designates as the Place
of Payment for each series of Securities the City of City of ______,
_______, and initially appoints ______________ as the Office or Agency of
the Issuer or the Guarantor (with respect to any Guaranteed Securities), as
the case may be, in the City of City of ______, _______, for such purpose.
The Issuer or the Guarantor, as the case may be, may subsequently appoint a
different Office or Agency in the City of ______, _______ for the
Securities of any series.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i)
are denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of this
Indenture, then the Issuer will maintain with respect to each such series
of Securities, or as so required, at least one exchange rate agent.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Issuer shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date
of the principal of, any premium or interest on or Additional Amounts with
respect to any of the Securities of such series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum in the currency
or currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal or any premium, interest or Additional
Amounts so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and shall promptly notify the
Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the
principal of, any premium or interest on or any Additional Amounts with
respect to any Securities of such series, deposit with any Paying Agent a
sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to
pay the principal or any premium, interest or Additional Amounts so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee) the Issuer
will promptly notify the Trustee of its action or failure so to act.
The Issuer shall cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal
of, any premium or interest on or any Additional Amounts with respect to
Securities of such series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Issuer or the
Guarantor (or any other obligor upon the Securities of such series) in the
making of any payment of principal, any premium or interest on or any
Additional Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Issuer or the Guarantor (with Securities that are Guaranteed
Securities) may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
Order or Guarantor Order, as the case may be, direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Issuer or such Paying
Agent, such sums to be held by the Trustee upon the same terms as those
upon which such sums were held by the Issuer or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Issuer,
in trust for the payment of the principal of, any premium or interest on or
any Additional Amounts with respect to any Security of any series or any
Coupon appertaining thereto and remaining unclaimed for two years after
such principal or any such premium or interest or any such Additional
Amounts shall have become due and payable shall be paid to the Issuer on
Issuer Request (or if deposited by the Guarantor, paid to the Guarantor on
Guarantor Request), or (if then held by the Issuer) shall be discharged
from such trust; and the Holder of such Security or any Coupon appertaining
thereto shall thereafter, as an unsecured general creditor, look only to
the Issuer and the Guarantor (if the Securities are Guaranteed Securities)
for payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Issuer as
trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may
at the expense of the Issuer cause to be published once, in an Authorized
Newspaper in each Place of Payment for such series or to be mailed to
Holders of Registered Securities of such series, or both, notice that such
money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or mailing
nor shall it be later than two years after such principal and any premium
or interest or Additional Amounts shall have become due and payable, any
unclaimed balance of such money then remaining will be repaid to the Issuer
or the Guarantor, as the case may be.
Section 1004. Limitations on Incurrence of Debt.
(a) The Issuer will not, and will not permit any Subsidiary
to, incur any Indebtedness, other than Permitted Debt, if, immediately
after giving effect to the incurrence of such additional Indebtedness,
the aggregate principal amount of all outstanding Indebtedness of the
Issuer, and of its Subsidiaries determined at the applicable
proportionate interest of the Issuer in each such Subsidiary,
determined in accordance with GAAP, is greater than 60% of the sum of
(i) the Total Assets as of the end of the calendar quarter covered in
the Guarantor's Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, most recently filed with the Commission
prior to the incurrence of such additional Indebtedness or, if the
Guarantor is not then subject to the reporting requirements of the
Exchange Act, as of its most recent calendar quarter and (ii) any
increase in the Total Assets since the end of such quarter, including,
without limitation, any increase in Total Assets resulting from the
incurrence of such additional Indebtedness (the Total Assets adjusted
by such increase are referred to as the "Adjusted Total Assets").
(b) In addition to the limitation set forth in subsection
(a) of this Section 10.2, the Issuer will not, and will not permit any
Subsidiary to, incur any Indebtedness, other than Permitted Debt, if,
for the period consisting of the four consecutive fiscal quarters most
recently ended prior to the date on which such additional Indebtedness
is to be incurred, the ratio of Consolidated Income Available for Debt
Service to the Annual Service Charge shall have been less than 1.5 to
1, on a pro forma basis after giving effect to the incurrence of such
Indebtedness and to the application of the proceeds therefrom, and
calculated on the assumption that (i) such Indebtedness and any other
Indebtedness incurred by the Issuer or its Subsidiaries since the
first day of such four-quarter period and the application of the
proceeds therefrom, including to refinance other Indebtedness, had
occurred at the beginning of such period, (ii) the repayment or
retirement of any other Indebtedness by the Issuer or its Subsidiaries
since the first day of such four-quarter period had been incurred,
repaid or retained at the beginning of such period (except that, in
making such computation, the amount of Indebtedness under any
revolving credit facility shall be computed based upon the average
daily balance of such debt during such period), (iii) any income
earned as a result of any increase in Adjusted Total Assets since the
end of such four-quarter period had been earned, on an annualized
basis, for such period, and (iv) in the case of an acquisition or
disposition by the Issuer or any of its Subsidiaries of any asset or
group of assets since the first day of such four-quarter period,
including, without limitation, by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related
repayment of Indebtedness has occurred as of the first day of such
period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma
calculation of Consolidated Income Available for Debt Service to the
Annual Service Charge.
(c) In addition to the limitations set forth in subsections
(a) and (b) of this Section 1004, the Issuer will no, and will not
permit any Subsidiary to, incur any Indebtedness secured by any Lien
of any kind upon any of the property of the Issuer or any of its
Subsidiaries (the "Secured Debt") if, immediately after giving effect
to the incurrence of such additional Secured Debt, the aggregate
principal amount of all outstanding Secured Debt of the Issuer, and of
its Subsidiaries determined at the applicable proportionate interest
of the Issuer in each such Subsidiary, is greater than 40% of the
Adjusted Total Assets.
Section 1005. Additional Amounts.
If any Securities of a series provide for the payment of
Additional Amounts, the Issuer and the Guarantor (if the Securities are
Guaranteed Securities) agree to pay to the Holder of any such Security or
any Coupon appertaining thereto Additional Amounts as provided in or
pursuant to this Indenture or such Securities. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any series or any
(Coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided by the terms of such series
established hereby or pursuant hereto to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms, and express mention of the payment of Additional
Amounts (if applicable) in any provision hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
Except as otherwise provided in or pursuant to this Indenture or
the Securities of the applicable series, if the Securities of a series
provide for the payment of Additional Amounts, at least 10 days prior to
the first Interest Payment Date with respect to such series of Securities
(or if the Securities of such series shall not bear interest prior to
Maturity, the first day on which a payment of principal is made), and at
least 10 days prior to each date of payment of principal or interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Issuer or the Guarantor, as the
case may be, shall furnish to the Trustee and the principal Paying Agent or
Paying Agents, if other than the Trustee, an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and premium, if any, or interest on the Securities
of such series shall be made to Holders of Securities of such series or the
Coupons appertaining thereto who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of such series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country
the amount, if any, required to be withheld on such payments to such
Holders of Securities or Coupons, and the Issuer and the Guarantor (if the
Securities are Guaranteed Securities) agree to pay to the Trustee or such
Paying Agent the Additional Amounts required by the terms of such
Securities. The Issuer and the Guarantor each covenant to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad
faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
Section 1006. Maintenance of Properties.
The Issuer will cause all of its material properties used or
useful in the conduct of its business or the business of any Subsidiary to
be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in
this Section shall prevent the Issuer or any Subsidiary from selling or
otherwise disposing for value any of its properties in the ordinary course
of its business.
Section 1007. Insurance.
The Issuer will, and will cause each of its Subsidiaries to, keep
all of its insurable properties insured against loss or damage at least
equal to their then full insurable value with financially sound and
reputable insurers of recognized responsibility.
Section 1008. Existence.
Subject to Article Eight, the Issuer shall do or cause to be done
all things necessary to preserve and keep in full force and effect its
partnership existence and that of each Subsidiary and their respective
rights (charter and statutory) and franchises; provided, however, that the
foregoing shall not obligate the Issuer to preserve any such right or
franchise if the Issuer or any Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of its business
or the business of such Subsidiary and that the loss thereof is not
disadvantageous in any material respect to any Holder.
Section 1009. Waiver of Certain Covenants.
The Issuer or the Guarantor, as the case may be, may omit in any
particular instance to comply with any term, provision or condition set
forth in Sections 1004, 1006, 1007, 1008, 1012, 1014 or 1015 with respect
to the Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding
Securities of such series, by Act of such Holders, either shall waive such
compliance in such instance or generally shall have waived compliance with
such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
the Issuer and the Guarantor and the duties of the Trustee in respect of
any such term, provision or condition shall remain in full force and
effect.
Section 1010. Issuer Statement as to Compliance; Notice of
Certain Defaults.
(1) The Issuer shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officers' Certificate) signed by the
principal executive officer, the principal financial officer or the
principal accounting officer of the General Partner acting in its capacity
as the sole general partner of the Issuer, stating that
(a) a review of the activities of the Issuer during such
year and of its performance under this Indenture has been made under
his or her supervision, and
(b) to the best of his or her knowledge, based on such
review, (a) the Issuer has complied with all the conditions and
covenants imposed on it under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such condition
or covenant, specifying each such default known to him or her and the
nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and
status thereof.
(c) The Issuer shall deliver to the Trustee, within He days
after the occurrence thereof, written notice of any Event of Default
or any event which after notice or lapse of time or both would become
an Event of Default pursuant to clause (4) of Section 50 1.
Section 1011. Guarantor Statement as to Compliance; Notice of
Certain Defaults.
(1) The Guarantor shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officers' Certificate) signed by the
principal executive officer, the principal financial officer or the
principal accounting officer of the Guarantor, stating that
(a) a review of the activities of the Guarantor during such
year and of performance under this Indenture has been made under his
or her supervision, and
(b) to the best of his or her knowledge, based on such
review, (a) the Guarantor has complied with conditions and covenants
imposed on it under this Indenture throughout such year, or, if there
has been a default in the fulfillment of any such condition or
covenant, specifying each such default known to him or her and the
nature and status thereof, and (b) no event has occurred and is
continuing which constitutes, or which after notice or lapse of time
or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him
and the nature and status thereof
(2) The Guarantor shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after
notice or lapse of time or both would become an Event of Default pursuant
to clause (4) of Section 501.
Section 1012. Maintenance of Total Unencumbered Assets.
The Issuer will maintain Total Unencumbered Assets of not less
than 150% of the aggregate principal amount of all outstanding Unsecured
Debt.
Section 1013. [Intentionally Omitted]
Section 1014. Payment of Taxes and Other Claims.
The Issuer will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon them or any
Subsidiary or upon the income, profits or property of the Issuer or any
Subsidiary, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a Lien upon the property of the
Issuer or any Subsidiary; provided, however, that the Issuer shall not be
required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
Section 1015. Provision of Financial Information.
Whether or not the Issuer is subject to Section 13 or 15(d) of
the Exchange Act and for so long as any Securities are outstanding, the
Issuer will, to the extent permitted under the Exchange Act, file with the
Commission the annual reports, quarterly reports and other documents which
the Issuer would have been required to file with the Commission pursuant to
such Section 13 or 15(d) (the "Financial Statements") if the Issuer were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Issuer would
have been required so to file such documents if the Issuer were so subject.
In addition, if the Issuer is no longer required to file with the
Commission pursuant to Section 13 or 150) of Me Exchange Act, the Issuer
will also in any event (x) within 15 days after each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in
the Security Register, without cost to such Holders copies of the annual
reports and quarterly reports which the Issuer would have been required to
file with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act if the Issuer were subject to such Sections, and (ii) file with the
Trustee copies of the annual reports, quarterly reports and other documents
which the Issuer would have been required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act if the Issuer were
subject to such Sections and (y) if filing such documents by the Issuer
with the Commission is not permitted under the Exchange Act, promptly upon
written request and payment of the reasonable cost of duplication and
delivery, supply copies of such documents to any prospective Holder.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the
Issuer as permitted or required by the terms of such Securities shall be
made in accordance with the terms of such Securities and (except as
otherwise provided herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption
at the election of the Issuer of (a) less than all of the Securities of any
series or (b) all of the Securities of any series, with the same issue
date, interest role or formula, Stated Maturity and other terms, the Issuer
shall, at least 60 days prior to the Redemption Date fixed by the Issuer
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities
of such series to be redeemed.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same
issue date, interest rate or formula, Stated Maturity and other terms are
to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee from the
Outstanding Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal
amount of Registered Securities of such series; provided, however, that no
such partial redemption shall reduce the portion of the principal amount of
a Registered Security of such series not redeemed to less than the minimum
denomination for a Security of such series established herein or pursuant
hereto.
The Trustee shall promptly notify the Issuer and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal of such Securities which has been or
is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or
the Securities of any series, if any Security selected for partial
redemption is converted or exchanged for Common Stock or other securities
in part before termination of the conversion or exchange right with respect
to the portion of the Security so selected, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted or exchanged during a
selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be
redeemed, to the Holders of Securities to be redeemed. Failure to give
notice by mailing in the manner herein provided to the Holder of any
Registered Securities designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other Securities or portion
thereof.
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to be
redeemed, and, if applicable, that interest thereon shall cease to accrue
on and after said date,
(6) the place or places where such Securities, together (in the
case of Bearer Securities) with all Coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price and any accrued interest and Additional Amounts
pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Issuer, the Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series axe not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on the Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Issuer, on which such
exchanges may be made,
(10) in the case of Securities of any series that are convertible
or exchangeable into Common Stock or other securities, the conversion or
exchange price or rate, the date or dates on which the right to convert or
exchange the principal of the Securities of such series to be redeemed will
commence or terminate and the place or places where such Securities may be
surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference
numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
A notice of redemption published as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Issuer shall be given by the Issuer or, at the Issuer's request, by
the Trustee in the name and at the expense of the Issuer.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Issuer shall deposit,
with respect to the Securities of any series called for redemption pursuant
to Section 1104, with the Trustee or with a Paying Agent (or, if the Issuer
is acting as its own Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money in the applicable Currency sufficient
to pay the Redemption Price of, and (except if the Redemption Date shall be
an Interest Payment Date, unless otherwise specified pursuant to Section
301 or in the Securities of such series) any accrued interest on and
Additional Amounts with respect thereto, all such Securities or portions
thereof which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Issuer shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest
and the Coupons for such interest appertaining to any Bearer Securities so
to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said
notice, together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Issuer at the
Redemption Price, together with any accrued interest and Additional Amounts
to the Redemption Date; provided, however, that, except as otherwise
provided in or pursuant to this Indenture or the Bearer Securities of such
series, installments of interest on Bearer Securities whose Stated Maturity
is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or
Agency located outside the United States except as otherwise provided in
Section 1002), and provided, further, that, except as otherwise specified
in or pursuant to this Indenture or the Registered Securities of such
series, installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record Dates
therefor according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date,
such Security may be paid after deducting horn the Redemption Price an
amount equal to the face amount of all such missing Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Issuer and
the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing Coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that any
interest or Additional Amounts represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an Office or Agency for
such Security located outside of the United States except as otherwise
provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until
paid, shall bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at any Office or Agency for such Security (with, if
the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Issuer shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Registered Security or Securities of the same series, containing identical
terms and provisions, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Security in global form is so surrendered, the Issuer shall execute, and
the Trustee shall authenticate :and deliver to the U.S. Depository or other
Depository for such Security in global form as shall be specified in the
Issuer Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for
the unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
permitted or required in or pursuant to this Indenture or any Security of
such series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of such series is herein referred
to as an "optional sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 1202. Each sinking End
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series and this Indenture.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Issuer may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any series to be made
pursuant to the terms of such Securities (1) deliver Outstanding Securities
of such series (other than any of such Securities previously called for
redemption or any of such Securities in respect of which cash shall have
been released to the Issuer), together in the case of any Bearer Securities
of such series with all unmatured Coupons appertaining thereto, and (2)
apply as a credit Securities of such series which have been redeemed either
at the election of the Issuer pursuant to the terms of such series of
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, provided that such
series of Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly. If as a result of the delivery or credit of
Securities of any series in lieu of cash payments pursuant to this Section
1202, the principal amount of Securities of such series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000,
the Trustee need not call Securities of such series for redemption, except
upon Issuer Request, and such cash payment shall be held by the Trustee or
a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall at the
request of the Issuer from time to time pay over and deliver to the Issuer
any cash payment so being held by the Trustee or such Paying Agent upon
delivery by the Issuer to the Trustee of Securities of that series
purchased by the Issuer having an unpaid principal amount equal to the cash
payment requested to be released to the Issuer.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for
any series of Securities, the Issuer shall deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting of Securities of that series pursuant to Section 1202, and the
optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities
to be so credited and not theretofore delivered. If such Officers'
Certificate shall specify an optional amount to be added in cash to the
next ensuing mandatory sinking fund payment, the Issuer shall thereupon be
obligated to pay the amount therein specified. Not less than 60 days before
each such sinking fund payment date the Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the manner specified
in Section 1103 and cause notice of the redemption thereof to be given in
the name of and at the expense of the Issuer in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series. The repayment of any
principal amount of Securities pursuant to such option of the Holder to
require repayment of Securities before their Stated Maturity, for purposes
of Section 309, shall not operate as a payment, redemption or satisfaction
of the Indebtedness represented by such Securities unless and until the
Issuer, at its option, shall deliver or surrender the same to the Trustee
with a directive that such Securities be cancelled. Notwithstanding
anything to the contrary contained in this Section 1301, in connection with
any repayment of Securities, the Issuer may arrange for the purchase of any
Securities by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the Holders of such
Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Issuer on repayment
of such Securities, and the obligation of the Issuer to pay the repayment
price of such Securities shall be satisfied and discharged to the extent
such payment is so paid by such purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series
in which not all of such Securities are denominated in the same Currency,
or (ii) any distribution to Holders of Securities, in the absence of any
provision to the contrary in the form of Security of any particular series
or pursuant to this Indenture or the Securities, any amount in respect of
any Security denominated in a Currency other than Dollars shall be treated
for any such action or distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as of the
record date with respect to Registered Securities of such series (if any)
for such action, determination of rights or distribution (or, if there
shall be no applicable record date, such other date reasonably proximate to
the date of such action, determination of rights or distribution) as the
Issuer or the Guarantor may specify in a written notice to the Trustee or,
in the absence of such written notice, as the Trustee may determine.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at
any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
Section 1502. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 150L to be
held at such time and at such place in the City of , , or,
if Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the
Trustee shall determine. Notice of every meeting of Holders of Securities
of any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Issuer (by or pursuant to a Board
Resolution), the Guarantor (if the Securities are Guaranteed Securities),
by or pursuant to a Guarantor's Board Resolution or the Holders of at least
10% in principal amount of the Outstanding Securities of any series shall
have requested the Trustee to call a meeting of the Holders of Securities
of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have mailed notice of or made the
first publication of the notice of such meeting within 21 days after
receipt of such request (whichever shall be required pursuant to Section
106) or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Issuer, the Guarantor, if applicable, or the
Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the City of
, , or, if Securities of such series are to be issued as
Bearer Securities, in London for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in clause (1) of this
Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its
counsel, any representatives of the Guarantor and its counsel and any
representatives of the Issuer and its counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes after the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 1502(l), except that such notice need be given only
once not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative vote
of the Holders of a majority in principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by
the proviso to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of
such series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or
represented at the meeting.
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other
proof.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Issuer or by Holders of Securities as provided in Section
1502(2), in which case the Issuer, the Guarantor or the Holders of
Securities of the series calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or
proxy shall be entitled to one vote for each $ 1,000 principal amount of
Securities of such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further
notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders
of Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 1502 and, if applicable, Section 1504. Each
copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered
to the Issuer and the Guarantor, and another to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at
the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SIXTEEN
GUARANTEE
Section 1601. Guarantee.
The Guarantee set forth in this Article Sixteen shall only be in
effect with respect to Securities of a series to the extent such Guarantee
is made applicable to such series in accordance with Section 301. The
Guarantor hereby unconditionally guarantees to each Holder of a Guaranteed
Security authenticated and delivered by the Trustee the due and punctual
payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to such Guaranteed Security, whether at
maturity, by acceleration, redemption, repayment or otherwise, in
accordance with the terms of such Security and of this Indenture. In case
of the failure of the Issuer punctually to pay any such principal, premium,
interest or Additional Amounts, the Guarantor hereby agrees to cause any
such payment to be made punctually when and as the same shall become due
and payable, whether at maturity, upon acceleration, redemption, repayment
or otherwise, and as if such payment were made by the Issuer.
The Guarantor hereby agrees that its obligations hereunder shall
be as principal and not merely as surety, and shall be absolute,
irrevocable and unconditional, irrespective of, and shall be unaffected by,
any invalidity, irregularity or unenforceability of any Guaranteed Security
or this Indenture, any failure to enforce the provisions of any Guaranteed
Security or this Indenture, or any waiver, modification, consent or
indulgence granted with respect thereto by the Holder of such Guaranteed
Security or the Trustee, the recovery of any judgment against the Issuer or
any action to enforce the same, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger, insolvency
or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest or notice with respect to any such Guaranteed
Security or the Indebtedness evidenced thereby and all demands whatsoever,
and covenants that this Guarantee will not be discharged except by payment
in full of the principal of, any premium and interest on, and any
Additional Amounts required with respect to, the Guaranteed Securities and
the complete performance of all other obligations contained in the
Guaranteed Securities.
This Guarantee shall continue to be effective or be reinstated,
as the case may be, if at any time payment on any Guaranteed Security, in
whole or in part, is rescinded or must otherwise be restored to the Issuer
or the Guarantor upon the bankruptcy, liquidation or reorganization of the
Issuer or otherwise.
The Guarantor shall be subrogated to all rights of the Holder of
any Guaranteed Security against the Issuer in respect of any amounts paid
to such Holder by the Guarantor pursuant to the provisions of this
Guarantee; provided, however, that the Guarantor shall not be entitled to
enforce, or to receive any payments arising out of or based upon, such
right of subrogation until the principal of, any premium and interest on,
and any Additional Amounts required with respect to, all Guaranteed
Securities shall have been paid in full.
* * * * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed, all as of the day and year first above written.
Reckson Operating Partnership, L.P.
By: Reckson Associates Realty Corp.
By ________________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
Reckson Associates Realty Corp.,
as Guarantor
By _______________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
[SEAL]
________________________________,
as Trustee
By _____________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
[SEAL]
STATE OF ______)
: ss.:
COUNTY OF _____)
On the _____ day of __________, 199__, before me personally came
Donald Rechler, to me known, who, being by me duly sworn, did depose and
say that he is the Chief Executive Officer of Reckson Associates Realty
Corp., acting in its capacity as the managing general partner of Reckson
Operating Partnership, L.P., a Delaware limited partnership, one of the
persons described in and who executed the foregoing instrument; and that he
signed his name thereto by authority of the managing general partner of
said Partnership.
___________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF ______)
: ss.:
COUNTY OF _____)
On the _____ day of __________, 199__, before me personally came
Donald Rechler, to me known, who, being by me duly sworn, did depose and
say that he is the Chief Executive Officer of Reckson Associates Realty
Corp., a Maryland corporation, one of the persons described in and who
executed the foregoing instrument; that he knows the seal of said
Corporation; that the seal affixed to said instrument is such Corporation's
seal; that it was so affixed by authority of the Board of Directors of said
Corporation; and that he signed his name thereto by like authority.
___________________________
Notary Public
[NOTARIAL SEAL]
STATE OF ______)
:ss.:
COUNTY OF _____)
On the day _____ day of __________, 199__, before me personally
came __________, to me known, who, being by me duly sworn, did depose and
say that he is a _____________ of _____________, a _____________ trust
company organized and existing under the laws of the ________ of
____________, one of the persons described in and who executed the
foregoing instrument; that he knows the seal of said Corporation; that the
seal affixed to said instrument is such trust company's seal; that it was
so affixed by authority of the Board of Directors of said trust company;
and that he signed his name thereto by like authority.
___________________________
Notary Public
[NOTARIAL SEAL]
[FACE OF NOTE]
REGISTERED REGISTERED
NO. ______________ PRINCIPAL AMOUNT
CUSIP NO. ________ $
RECKSON OPERATING PARTNERSHIP, L.P.
7% Note due 2009
Reckson Operating Partnership, L.P., a limited partnership duly
organized and existing under the laws of Delaware (the "Issuer," which term
includes any successor thereto under the Indenture (as defined on the
reverse hereof)), for value received, hereby promises to pay to , or
its registered assigns, the principal amount of $_______ on _______ __,
2009 (the "Maturity Date"), and to pay interest on the outstanding
principal amount hereof semiannually in arrears on April 1 and October 1 of
each year, commencing on [the first Interest Payment Date in respect of
which the Regular Record Date falls after the date of original issuance]
(each, an "Interest Payment Date"), at the rate of 7% per annum, until
payment of said principal has been made or duly provided for. Interest on
this Note on an Interest Payment Date will accrue from and including the
immediately preceding Interest Payment Date to which interest has been paid
or duly provided for, or from and including [the date of original issuance]
if no interest has been paid or duly provided for, to but excluding the
applicable Interest Payment Date or the Maturity Date, as the case may be.
Interest on this Note will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
The interest so payable and punctually paid or duly provided for on
any Interest Payment Date will be paid to the Holder in which name this
Note (or one or more predecessor Notes) is registered in the Security
Register at the close of business on the "Regular Record Date" for such
payment, which shall be the March 15 or September 15, as the case may be,
immediately preceding such Interest Payment Date (regardless of whether
such day is a Business Day (as defined below)). Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date, and shall be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at
the close of business on a subsequent Special Record Date for the payment
of such defaulted interest (which shall be not more than 15 days and not
less than 10 Business Days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of
the Issuer to the Holders of the Notes not less than 10 days preceding such
subsequent Special Record Date, or may be paid at any time in any other
lawful manner, all as more fully provided in the Indenture.
The principal of [and accrued interest, if any, on](1) this Note
payable on the Maturity Date will be paid against presentation and
surrender of this Now at be office or agency of the Issuer maintained for
that purpose in The City of New York. The Issuer hereby initially
designates the Corporate Trust Office of the Trustee at _________________,
New York, New York _____ as the office to be maintained by it where Notes
may be presented for payment, registration of transfer where notices or
demands to or upon the Issuer in respect of be Notes or be Indenture may
be served.
---------------
1 This text will be included if the Maturity Date does not fall on an
Interest Payment Date.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the payment required to be made on such doe will,
instead, be made on the next Business Day with the same force and effect as
if it were made on the date such payment was due, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be, to the next Business
Day. "Business Day" means any day, other than a Saturday, a Sunday or other
day on which banking institutions in The City of New York are authorized or
required by law, regulation or executive order to be closed.
Payments of principal, premium, if any, and interest in respect of
this Note will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts (i) in the case of payments on the Maturity Date, in
immediately available funds and (ii) in the case of payments on an Interest
Payment Date, at the option of the Issuer, by check mailed to the Holder
entitled thereto at the applicable address appearing in the Security
Register or by transfer of immediately available funds to an account
maintained by the payee with a bank located in the United States of
America.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be entitled to the benefits of the Indenture or be
valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been executed by manual signature by the
Trustee.
The obligations of the Issuer under the Indenture and this Note are
guaranteed by Reckson Associates Realty Corp., a corporation duly organized
and existing under the laws of Maryland (the "Guarantor," which term
includes any successor thereto under the Indenture).
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by an authorized signatory.
Dated: ______, 1999
Attest: RECKSON OPERATING PARTNERSHIP, L.P.,
as Issuer
___________________________ By: RECKSON ASSOCIATES REALTY CORP.,
Name: as General Partner
Title:
By: _______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
________________________________,
as Trustee
By: ___________________________
Authorized Officer
GUARANTEE
This Note is guaranteed by Reckson Associates Realty Corp. in
accordance with the within-mentioned Indenture.
RECKSON ASSOCIATES REALTY CORP.,
as Guarantor
By: ___________________________
Name:
Title:
[REVERSE OF NOTE]
RECKSON OPERATING PARTNERSHIP, L.P.
7% Note due 2009
This Note is one of a duly authorized issue of debentures, notes,
bonds, or other evidences of indebtedness of the Issuer (hereinafter called
the "Securities") of the series hereinafter specified, all issued or to be
issued under and pursuant to an Indenture, dated as of __________, 1999
(the "Indenture"), duly executed and delivered by the Issuer and the
Guarantor to , as Trustee (the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
series of Securities of which this Note is a part), and reference is hereby
made to the Indenture, and all modifications and amendments and indentures
supplemental thereto relating to the Notes, made for a description of the
rights, limitations of rights, obligations, duties, and immunities
thereunder of the Trustee, the Issuer, the Guarantor and the Holders of the
Notes and the terms upon which the Notes are authenticated and delivered.
The Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at
different times, may accrue interest (if any) at different rates or
formulas and may otherwise vary as provided in the Indenture. This Note A
one of a series of Securities designated as the "7% Notes due 2009" of the
Issuer, limited (except as permitted under the Indenture) in aggregate
principal amount to $__________.
This Note is not subject to redemption by the Company prior to the
Maturity Date. In addition, this Note is not subject to repayment at the
option of the Holder thereof. Furthermore, this Note is not entitled to the
benefit of, and is not subject to, any sinking fund.
In case an Event of Default with respect to this Note shall have
occurred and be continuing, the principal hereof may be declared, and upon
such declaration shall become, due and payable, in the manner, with the
effect, and subject to the conditions, provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and, if applicable, the Guarantor, and the rights of the Holders
of the Securities under the Indenture at any time by the Issuer and, if
applicable, the Guarantor, and the Trustee with the consent of the Holders
of a majority in the aggregate principal amount of all Securities issued
under the Indenture at the time Outstanding and affected thereby.
Furthermore, provisions in the Indenture permit the Holders of a majority
in the aggregate principal amount of the Outstanding Securities of any
series, in certain instances, to make, on behalf of all of the Holders of
Securities of such series, certain past defaults under the Indenture and
their consequences. Any such waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and other Notes issued upon the registration of transfer hereof or in
exchange hereof, or in lieu hereof, whether or not such consent or waiver
is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and premium, if any,
and interest on this Note in the manner, at the respective times, at the
rate and in the coin or currency herein prescribed.
This Note is issuable only in fully registered form, without coupons,
in denominations of $1,000 and integral multiples thereof. This Note may be
exchanged for a like aggregate principal amount of
Notes of other authorized denominations at the office or agency of the
Issuer in The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any
charge except for any tax or other governmental charge imposed in
connection therewith.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in The City of New York, one or more new
Notes of authorized denominations in an equal aggregate principal amount
will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, but without payment of any charge
except for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Guarantor or the Trustee and any authorized agent of
the Issuer, the Guarantor or the Trustee may deem and treat the Person in
whose name this Note is registered as the Holder and absolute owner of this
Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of
receiving payment of, or on account of, the principal hereof or premium, if
any, hereon, and subject to the provisions on the face hereof, interest
hereon and for all other purposes, and none of the Issuer, the Guarantor,
the Trustee or any authorized agent of the Issuer, the Guarantor or the
Trustee shall be affected by any notice to the contrary.
The Indenture and this Note shall be deemed to be a contract under the
laws of the State of New York, and for all purposes shall be governed by
and construed in accordance with the laws of such State, without giving
effect to any conflict of law principles.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Indenture.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto __________________________________________________________
__________________________________________________________________________.
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_________________________
| |
|_________________________|
___________________________________________________________________________
__________________________________________________________________________.
(Please print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________________________________________
__________________________________________________________________________
to transfer said Note on the books of the Issuer, with full power of
substitution in the premises.
Dated: __________________
Signature Guaranteed
____________________________________ ________________________________
NOTICE: Signature must be guaranteed NOTICE: The signature to this
by an eligible Guarantor Institution Assignment must correspond with
(banks, stockbrokers, savings and the name as written upon the
loan associations and credit unions) face of the within Note in every
with membership in an approved particular, without alteration
signature guarantee medallion program or enlargement or any change
pursuant to Securities and Exchange
Commission Rule 17Ad- 15.
EXHIBIT 10.2
RELEASE FROM RECKSON ASSOCIATES REALTY CORP.
TO TOWER REALTY TRUST, INC.
KNOW THAT RECKSON ASSOCIATES REALTY CORP. ("Reckson"), a
corporation organized under the laws of the State of Maryland, for good and
sufficient consideration the receipt of which is hereby acknowledged, for
itself and its subsidiaries, assigns, attorneys, affiliates, agents,
predecessors, successors, directors, officers, employees or other legal
representatives (collectively, Releasor"), releases and discharges Tower
Realty Trust, Inc. ("Tower"), a corporation organized under the laws of the
State of Maryland, and its subsidiaries, assigns, attorneys, affiliates,
agents, predecessors, successors, directors, officers, employees or other
legal representatives (collectively, "Releasee"), from all actions, causes
of action, suits, controversies, claims and demands whatsoever in law,
admiralty or equity which against Releasee Releasor ever had, now has or
hereafter may have relating to or arising out of the Agreement and Plan of
Merger entered into by Reckson and Tower, among others, on July 9, 1998 and
amended and restated on August 11, 1998, including but not limited to all
claims relating to such merger agreement that could have been asserted by
Reckson against Releasee in the action entitled Tower Realty Trust, Inc. v.
Reckson Associates Realty Corp., et al., Index No. 6053181/98, Supreme
Court of the State of New York in the County of New York from the beginning
of the world to the day of the date of this Release. Nothing contained
herein is intended, or shall operate, to release or affect any of the
parties' obligations pursuant to the Agreement and Plan of Merger by and
among Reckson, Tower and certain subsidiaries of Reckson dated as of
December 8, 1998.
This Release may not be changed orally.
This Release shall be governed by and construed in accordance
with the laws of the State of New York (regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof)
as to all matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies. Releasee and Releasor
hereby irrevocably and unconditionally consent to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United
States of America located in the State of New York (the "New York Courts")
for any litigation arising out of or relating to this Release (and agree
not to commence litigation relating thereto except in such courts), waive
any objection to the laying of venue of any such litigation in the New York
Courts and agree not to plead or claim in any New York Court that such
litigation brought therein has been brought in an inconvenient forum.
This Release may be signed in counterpart, each of which shall
be deemed an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Release shall become
effective when each party hereto shall have received counterparts hereof
signed by all of the other parties hereto.
IN WITNESS WHEREOF, the authorized representative of Reckson has
set his hand this 8th day of December, 1998.
RECKSON ASSOCIATES REALTY CORP.
/s/ Scott H. Rechler
----------------------------------
By: Scott H. Rechler
Title: President and Chief
Operating Officer
Agreed to as of this 8th day
of December, 1998
TOWER REALTY TRUST, INC.
/s/ Lester S. Garfinkel
------------------------------
By: Lester S. Garfinkel
Title: Chief Financial Officer
EXHIBIT 10.3
RELEASE FROM TOWER REALTY TRUST, INC.
TO RECKSON ASSOCIATES REALTY CORP.
KNOW THAT TOWER REALTY TRUST, INC. ("Tower"), a corporation
organized under the laws of the State of Maryland, for good and sufficient
consideration the receipt of which is hereby acknowledged, for itself and
its subsidiaries, assigns, attorneys, affiliates, agents, predecessors,
successors, directors, officers, employees or other legal representatives
(collectively, "Releasor"), releases and discharges Reckson Associates
Realty Corp. ("Reckson"), a corporation organized under the laws of the
State of Maryland, and its subsidiaries, assigns, attorneys, affiliates,
agents, predecessors, successors, directors, officers, employees or other
legal representatives (collectively, "Releasee"), from all actions, causes
of action, suits, controversies, claims and demands whatsoever in law,
admiralty or equity which against Releasee Releasor ever had, now has or
hereafter may have relating to or arising out of the Agreement and Plan of
Merger entered into by Tower and Reckson, among others, on July 9, 1998 and
amended and restated on August 11, 1998, including but not limited to all
claims that were asserted by Tower (or other claims relating to such merger
agreement that could have been asserted by Tower) against Releasee in the
action entitled Tower Realty Trust, Inc. v. Reckson Associates Realty
Corp., et al., Index No. 6053181/98, Supreme Court of the State of New York
in the County of New York (hereinafter the "Lawsuit") from the beginning of
the world to the day of the date of this Release. Nothing contained herein
is intended, or shall operate, to release or affect any of the parties'
obligations pursuant to the Agreement and Plan of Merger by and among
Reckson, Tower and certain subsidiaries of Reckson dated as of December 8,
1998.
This Release may not be changed orally.
This Release shall be governed by and construed in accordance
with the laws of the State of New York (regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof)
as to all matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies. Releasee and Releasor
hereby irrevocably and unconditionally consent to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United
States of America located in the State of New York (the "New York Courts")
for any litigation arising out of or relating to this Release (and agree
not to commence litigation relating thereto except in such courts), waive
any objection to the laying of venue of any such litigation in the New York
Courts and agree not to plead or claim in any New York Court that such
litigation brought therein has been brought in an inconvenient forum.
Tower agrees to dismiss the Lawsuit with prejudice.
This Release may be signed in counterpart, each of which shall
be deemed an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Release shall become
effective when each party hereto shall have received counterparts hereof
signed by all of the other parties hereto.
IN WITNESS WHEREOF, the authorized representative of Tower has
set his hand this 8th day of December, 1998.
TOWER REALTY TRUST, INC.
/s/ Lester S. Garfinkel
---------------------------------
By: Lester S. Garfinkel
Title: Chief Financial Officer
Agreed to as of this 8th day
of December, 1998
RECKSON ASSOCIATES REALTY CORP.
/s/ Scott H. Rechler
-------------------------------
By: Scott H. Rechler
Title: President
EXHIBIT 10.4
RELEASE FROM CRESCENT REAL ESTATE EQUITIES COMPANY
TO TOWER REALTY TRUST, INC.
KNOW THAT CRESCENT REAL ESTATE EQUITIES COMPANY ("Crescent"), a
real estate investment trust organized under the laws of the State of
Texas, for good and sufficient consideration the receipt of which is hereby
acknowledged, for itself and its subsidiaries, assigns, attorneys,
affiliates, agents, predecessors, successors, directors, officers,
employees or other legal representatives (collectively, "Releasor"),
releases and discharges Tower Realty Trust, Inc. ("Tower"), a corporation
organized under the laws of the State of Maryland, and its subsidiaries,
assigns, attorneys, affiliates, agents, predecessors, successors,
directors, officers, employees or other legal representatives
(collectively, "Releasee"), from all actions, causes of action, suits,
controversies, claims and demands whatsoever in law, admiralty or equity
which against Releasee Releasor ever had, now has or hereafter may have
relating to or arising out of the Agreement and Plan of Merger entered into
by Crescent and Tower, among others, on July 9, 1998 and amended and
restated on August 11, 1998, including but not limited to all claims
relating to such merger agreement that could have been asserted by Crescent
against Releasee in the action entitled Tower Realty Trust, Inc. v. Reckson
Associates Realty Corp., et al., Index No. 6053181/98, Supreme Court of the
State of New York in the County of New York from the beginning of the world
to the day of the date of this Release (hereinafter referred to
collectively, as the "Released Claims"). Nothing contained herein is
intended, or shall operate, to release or affect any of the parties'
obligations pursuant to the Agreement and Plan of Merger by and among
Reckson Associates Realty Corp., Reckson Operating Partnership, L.P. and
Tower dated as of December 8, 1998.
This Release may not be changed orally.
This Release shall be governed by and construed in accordance
with the laws of the State of New York (regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof)
as to all matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies. Releasee and Releasor
hereby irrevocably and unconditionally consent to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United
States of America located in the State of New York (the "New York Courts")
for any litigation arising out of or relating to this Release or, in
circumstances where such could be asserted, the Released Claims (and agree
not to commence litigation relating thereto except in such courts), waive
any objection to the laying of venue of any such litigation in the New York
Courts and agree not to plead or claim in any New York Court that such
litigation brought therein has been brought in an inconvenient forum.
Notwithstanding the foregoing, this Release shall become void and
unenforceable if, but only if, the Release from Tower Realty Trust, Inc. to
Crescent Real Estate Equities Company, dated the date hereof, becomes void
and unenforceable.
This Release may be signed in counterpart, each of which shall
be deemed an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Release shall become
effective when each party hereto shall have received counterparts hereof
signed by all of the other parties hereto.
IN WITNESS WHEREOF, the authorized representative of Crescent has
set his hand this 8th day of December, 1998.
CRESCENT REAL ESTATE EQUITIES COMPANY
/s/ David M. Dean
-------------------------------------
By: David M. Dean
Title: Senior Vice President, Law &
Secretary
Agreed to as of this 8th day
of December, 1998
TOWER REALTY TRUST, INC.
/s/ Lester S. Garfinkel
------------------------------
By: Lester S. Garfinkel
Title: Chief Financial Officer
EXHIBIT 10.5
RELEASE FROM TOWER REALTY TRUST, INC.
TO CRESCENT REAL ESTATE EQUITIES COMPANY.
KNOW THAT TOWER REALTY TRUST, INC. ("Tower"), a corporation
organized under the laws of the State of Maryland, for good and sufficient
consideration the receipt of which is hereby acknowledged, for itself and
its subsidiaries, assigns, attorneys, affiliates, agents, predecessors,
successors, directors, officers, employees or other legal representatives
(collectively, "Releasor"), releases and discharges Crescent Real Estate
Equities Company ("Crescent"), and its subsidiaries, assigns, attorneys,
affiliates, agents, predecessors, successors, directors, officers,
employees or other legal representatives (collectively, "Releasee"), from
all actions, causes of action, suits, controversies, claims and demands
whatsoever in law, admiralty or equity which against Releasee Releasor ever
had, now has or hereinafter may have relating to or arising out of the
Agreement and Plan of Merger entered into between Tower and Crescent, among
others, on July 9, 1998 and amended and restated on August 11, 1998,
including but not limited to all claims that were asserted by Tower (or
other claims relating to such merger agreement that could have been
asserted by Tower) against Releasee in the action entitled Tower Realty
Trust, Inc. v. Reckson Associates Realty Corp., et al., Index No.
6053181/98, Supreme Court of the State of New York in the County of New
York (hereinafter the "Lawsuit"), from the beginning of the world to the
day of the date of this Release (hereinafter referred to collectively, as
the "Released Claims"). Nothing contained herein is intended, or shall
operate, to release or affect any of the parties' obligations pursuant to
the Agreement and Plan of Merger between Tower, Reckson Associates Realty
Corp., Reckson Operating Partnership, L.P. and Metropolitan Partners LLC
dated as of December 8, 1998.
This Release may not be changed orally.
This Release shall be governed by and construed in accordance
with the laws of the State of New York (regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof)
as to all matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies. Releasee and Releasor
hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United
States of America located in the State of New York (the "New York Courts")
for any litigation arising out of or relating to this Release or, in
circumstances where such could be asserted, the Released Claims (and agree
not to commence litigation relating thereto except in such courts), waive
any objection to the laying of venue of any such litigation in the New York
Courts and agree not to plead or claim in any New York Court that such
litigation brought therein has been brought in an inconvenient forum.
Tower hereby agrees to dismiss the Lawsuit without prejudice.
Notwithstanding the foregoing, this Release shall become void and
unenforceable if, but only if, all of the conditions set forth in Section
3.1 of the Amended and Restated Operating Agreement of Metropolitan
Partners LLC for funding of the $75,000,000 capital contribution of
Crescent Real Estate Equities Limited Partnership ("Crescent OP") have been
met, but Crescent OP fails to fully fund the $75,000,000 capital
contribution to Metropolitan Partners LLC.
This Release may be signed in counterpart, each of which shall
be deemed an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Release shall become
effective when each party hereto shall have received counterparts hereof
signed by all of the other parties hereto.
IN WITNESS WHEREOF, the authorized representative of Tower has
set his hand this 8th day of December, 1998.
TOWER REALTY TRUST, INC.
/s/ Lester S. Garfinkel
---------------------------------
By: Lester S. Garfinkel
Title: Chief Financial Officer
Agreed to as of this 8th day
of December, 1998
CRESCENT REAL ESTATE
EQUITIES COMPANY
/s/ David M. Dean
-----------------------------------
By: David M. Dean
Title: Senior Vice President, Law &
Secretary
EXHIBIT 10.6
RELEASE FROM METROPOLITAN PARTNERS LLC
TO TOWER REALTY TRUST, INC.
KNOW THAT METROPOLITAN PARTNERS LLC ("Buyer"), a limited
liability company organized under the laws of the State of Delaware, for
good and sufficient consideration the receipt of which is hereby
acknowledged, for itself and its subsidiaries, assigns, attorneys,
affiliates, agents, predecessors, successors, directors, officers,
employees or other legal representatives (collectively, "Releasor"),
releases and discharges Tower Realty Trust, Inc. ("Tower"), a corporation
organized under the laws of the State of Maryland, and its subsidiaries,
assigns, attorneys, affiliates, agents, predecessors, successors,
directors, officers, employees or other legal representatives
(collectively, "Releasee"), from all actions, causes of action, suits,
controversies, claims and demands whatsoever in law, admiralty or equity
which against Releasee Releasor ever had, now has or hereafter may have
relating to or arising out of the Agreement and Plan of Merger entered into
by Buyer and Tower, among others, on July 9, 1998 and amended and restated
on August 11, 1998, including but not limited to all claims relating to
such merger agreement that could have been asserted by Buyer against
Releasee in the action entitled Tower Realty Trust, Inc. v. Reckson
Associates Realty Corp., et al. Index No. 6053181/98, Supreme Court of the
State of New York in the County of New York from the beginning of the world
to the day of the date of this Release. Nothing contained herein is
intended, or shall operate, to release or affect any of the parties'
obligations pursuant to the Agreement and Plan of Merger by and among
Reckson Associates Realty Corp. ("Reckson"), Tower, Buyer and certain
subsidiaries of Reckson dated as of December 8, 1998.
This Release may not be changed orally.
This Release shall be governed by and construed in accordance
with the laws of the State of New York (regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof)
as to all matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies. Releasee and Releasor
hereby irrevocably and unconditionally consent to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United
States of America located in the State of New York (the "New York Courts")
for any litigation arising out of or relating to this Release (and agree
not to commence litigation relating thereto except in such courts), waive
any objection to the laying of venue of any such litigation in the New York
Courts and agree not to plead or claim in any New York Court that such
litigation brought therein has been brought in an inconvenient forum.
This Release may be signed in counterpart, each of which shall
be deemed an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Release shall become
effective when each party hereto shall have received counterparts hereof
signed by all of the other parties hereto.
IN WITNESS WHEREOF, the authorized representative of Buyer has
set his hand this 8th day of December, 1998.
METROPOLITAN PARTNERS LLC
/s/ Scott H. Rechler
----------------------------------
By: Scott H. Rechler
Title: President
Agreed to as of this 8th day
of December, 1998
TOWER REALTY TRUST, INC.
/s/ Lester S. Garfinkel
-------------------------------
By: Lester S. Garfinkel
Title: Chief Financial Officer
EXHIBIT 10.7
RELEASE FROM TOWER REALTY TRUST, INC.
TO METROPOLITAN PARTNERS LLC
KNOW THAT TOWER REALTY TRUST, INC. ("Tower"), a corporation
organized under the laws of the State of Maryland, for good and sufficient
consideration the receipt of which is hereby acknowledged, for itself and
its subsidiaries, assigns, attorneys, affiliates, agents, predecessors,
successors, directors, officers, employees or other legal representatives
(collectively, "Releasor"), releases and discharges Metropolitan Partners
LLC ("Buyer"), a limited liability company organized under the laws of the
State of Delaware, and its subsidiaries, assigns, attorneys, affiliates,
agents, predecessors, successors, directors, officers, employees or other
legal representatives (collectively, "Releasee"), from all actions, causes
of action, suits, controversies, claims and demands whatsoever in law,
admiralty or equity which against Releasee Releasor ever had, now has or
hereafter may have relating to or arising out of the Agreement and Plan of
Merger entered into by Tower and Buyer, among others, on July 9, 1998 and
amended and restated on August 11, 1998, including but not limited to all
claims that were asserted by Tower (or other claims relating to such merger
agreement that could have been asserted by Tower) against Releasee in the
action entitled Tower Realty Trust, Inc. v. Reckson Associates Realty
Corp., et al., Index No. 6053181/98, Supreme Court of the State of New York
in the County of New York (hereinafter the "Lawsuit") from the beginning of
the world to the day of the date of this Release. Nothing contained herein
is intended, or shall operate, to release or affect any of the parties'
obligations pursuant to the Agreement and Plan of Merger by and among
Tower, Reckson Associates Realty Corp. ("Reckson") and certain subsidiaries
of Reckson dated as of December 8, 1998.
This Release may not be changed orally.
This Release shall be governed by and construed in accordance
with the laws of the State of New York (regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof)
as to all matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies. Releasee and Releasor
hereby irrevocably and unconditionally consent to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United
States of America located in the State of New York (the "New York Courts")
for any litigation arising out of or relating to this Release (and agree
not to commence litigation relating thereto except in such courts), waive
any objection to the laying of venue of any such litigation in the New York
Courts and agree not to plead or claim in any New York Court that such
litigation brought therein has been brought in an inconvenient forum.
Tower agrees to dismiss the Lawsuit with prejudice.
This Release may be signed in counterpart, each of which shall
be deemed an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Release shall become
effective when each party hereto shall have received counterparts hereof
signed by all of the other parties hereto.
IN WITNESS WHEREOF, the authorized representative of Tower has
set his hand this 8th day of December, 1998.
TOWER REALTY TRUST, INC.
/s/ Lester S. Garfinkel
---------------------------------
By: Lester S. Garfinkel
Title: Chief Financial Officer
Agreed to as of this 8th day
of December, 1998
METROPOLITAN PARTNERS LLC
/s/ Scott H. Rechler
-------------------------------
By: Scott H. Rechler
Title: President
EXHIBIT 10.8
STOCK PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement") is dated as of December 8, 1998 and
is by and between TOWER REALTY TRUST, INC., a Maryland corporation
("Tower"), and METROPOLITAN PARTNERS LLC, a Delaware limited liability
company ("Buyer").
RECITALS
A. In connection with the Merger (as defined herein), Tower wishes
to sell to Buyer and Buyer wishes to purchase from Tower 2,169,197 shares
of Series A Preferred Stock (as defined herein) at the price of $18.44 per
share, on the terms and subject to the conditions set forth herein.
B. In consideration of the mutual promises set forth herein, the
parties hereby agree as follows:
ARTICLE DEFINITIONS
When used herein, the following terms shall have the following
meanings:
1.1 "Buyer Disclosure Schedule" shall have the meaning assigned
to such term in Section 4.2(c) hereof.
1.2 "Closing" shall have the meaning assigned to such term in
Section 2.2 hereof.
1.3 "Common Stock" shall mean the common stock of Tower, par
value $.01 per share.
1.4 "Conversion Shares" shall mean (i) the shares of Common
Stock issuable upon the conversion of the Shares and (ii) any Common Stock
issued or issuable with respect to the securities referred to in clause (i)
above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
1.5 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
1.6 "Governmental Entity" shall mean any government or any
agency, court, tribunal, commission, board, bureau, department, political
subdivision or other instrumentality of any government (including any
regulatory or administrative agency), whether federal, state, multinational
(including, but not limited to, the European Community), provincial,
municipal, domestic or foreign.
1.7 "Liens" shall mean with respect to any asset, any mortgage,
deed of trust, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset.
1.8 "Material Adverse Effect" shall mean a material adverse
effect on the condition (financial or otherwise), business, assets or
results of operations of Tower and its Subsidiaries, or Buyer and its
Subsidiaries, as the case may be, in each case taken as a whole, that is
not a result of a decline or deterioration in the economy in general or the
real estate markets in which such entities operate.
1.9 "Merger" shall mean the merger of Tower with and into Buyer
(with Buyer being the surviving entity) pursuant to the Merger Agreement.
1.10 "Merger Agreement" shall mean the merger agreement of even
date herewith between Tower, Buyer and Reckson.
1.11 "MGCL" shall mean the Maryland General Corporation Law.
1.12 "New York Courts" shall have the meaning assigned to such
term in Section 6.7 hereof.
1.13 "Person" shall mean any natural person, firm, individual,
corporation, limited liability company, partnership, association, joint
venture, company, business trust, trust or any other entity or
organization, whether incorporated or unincorporated, including a
government or political subdivision or any agency or instrumentality
thereof.
1.14 "Reckson" shall mean Reckson Associates Realty Corp., a
Maryland corporation.
1.15 "Registration Rights Agreement" shall mean the Registration
Rights Agreement of even date herewith between Tower and Buyer.
1.16 "Releases" shall mean the releases executed on the date
hereof by Tower, Reckson and Crescent Real Estate Equities Company, a Texas
real estate investment trust.
1.17 "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
1.18 "Series A Preferred Stock" shall mean the Series A Preferred
Stock of Tower having the preferences, limitations and relative rights as
set forth in the Supplementary Articles of Incorporation.
1.19 "Shares" shall mean the shares of Series A Preferred Stock
to be issued by Tower to Buyer pursuant to this Agreement.
1.20 "Subsidiary" shall mean, with respect to any Person, any
corporation or other entity of which such Person owns, directly or
indirectly, more than 50% of the outstanding voting stock or other equity
interests.
1.21 "Supplementary Articles of Incorporation" shall mean the
Supplementary Articles of Incorporation of Tower in the form attached
hereto as Exhibit A, as amended from time to time.
1.22 "Tower Disclosure Schedule" shall have the meaning assigned
to such term in Section 4.1(b)(i) hereof.
1.23 "Tower Permitted Liens" shall mean (i) mechanics',
carriers', workers', repairers', materialmen's, warehousemen's and other
similar Liens arising or incurred in the ordinary course of business for
sums not yet due and payable and such Liens as are being contested by Tower
in good faith, (ii) Liens arising or resulting from any action taken by
Buyer or any of its affiliates, (iii) matters that would be disclosed by an
accurate survey or inspection of the Company Real Property (as such term is
defined in the Merger Agreement), (iv) Liens for current taxes not yet due
or payable, (v) any covenants, conditions, restrictions, reservations,
rights, Liens, easements, encumbrances, encroachments and other matters
affecting title which are shown as exceptions on Tower's title insurance
polices and/or title commitments or reports which have been made available
to Buyer or any of its affiliates, (vi) any other covenants, conditions,
restrictions, reservations, rights, non-monetary Liens, easements,
encumbrances, encroachments and other matters affecting title which do not
individually or in the aggregate materially adversely affect the value or
use of any of the Company Real Property as it is presently used,
(vii) Company Space Leases (as defined in the Merger Agreement) and
(viii) matters set forth in Schedule 3.3(c) of the Company Disclosure
Schedule (as defined in the Merger Agreement) and/or permitted pursuant to
Sections 5.1(n), 5.1(r), 5.1(s) or 5.4 of the Merger Agreement.
1.24 "Transaction Agreements" shall mean this Agreement, the
Merger Agreement, the Registration Rights Agreement and the Releases.
ARTICLE STOCK PURCHASE
2.1 PURCHASE AND SALE. Subject to the terms and conditions
hereof and on the basis of the representations and warranties hereinafter
set forth, at the Closing, Tower shall issue and sell to Buyer, and Buyer
shall purchase from Tower, 2,169,197 shares of Series A Preferred Stock at
the price of $18.44 per share, equal to an aggregate purchase price of
$40,000,000.
2.2 CLOSING.
(a) The closing of the purchase and sale transactions
contemplated hereby (the "Closing") shall take place at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New
York 10022, simultaneously with the execution and delivery of this
Agreement or as soon thereafter as all of the conditions set forth in
Section 2.3 hereof are waived by Buyer or completed.
(b) At the Closing, Tower shall deliver to Buyer a duly executed
stock certificate in the name of Buyer evidencing the Shares to be
purchased and Buyer shall deliver the purchase price therefor, which shall
be paid by wire transfer to an account designated by Tower prior to the
Closing.
(c) At the Closing, Buyer shall deliver to Tower the
Representation Letter (as defined in Section 4.1(f) hereof).
2.3 ACTIONS AT THE CLOSING. At the Closing, the following
actions shall occur:
(a) Each of the other Transaction Agreements shall be duly
executed and delivered by the parties thereto and shall be in full force
and effect.
(b) The Supplementary Articles of Incorporation shall be duly
and validly filed with the Secretary of State of the Department of
Assessments and Taxation of the State of Maryland and shall be in full
force and effect.
ARTICLE COVENANTS
3.1 USE OF PROCEEDS. Tower shall use the proceeds of the sale
of the Shares pursuant to this Agreement to make a principal payment of
$20,000,000 in respect of the Loan Agreement dated as of December 31, 1997
between Credit Suisse First Boston Mortgage Capital LLC and 810 7th Avenue,
L.P. promptly after the Closing; Tower shall use the balance of the
proceeds only for general corporate purposes and in compliance with Section
5.1 of the Merger Agreement until the earlier of the consummation of the
Merger and the termination of the Merger Agreement.
3.2 PUBLICITY. None of Tower, Buyer nor any of their respective
affiliates shall issue or cause the publication of any press release or
other public announcement with respect to the Merger, this Agreement or the
other transactions contemplated hereby without prior consultation with the
other party, except as may be required by law or by any listing agreement
with, or the policies of, a national securities exchange.
3.3 TRANSFER.
(a) Prior to Termination of Merger Agreement. Buyer agrees that
prior to the termination of the Merger Agreement for any reason, neither
Buyer nor any of its affiliates may transfer the Shares to any Person that
is not Buyer or any affiliate of Reckson who agrees to be bound by the
terms and provisions of this Agreement.
(b) After Termination of Merger Agreement. Buyer agrees that
during the period commencing upon the termination of the Merger Agreement
and ending on the fifth anniversary of the date hereof (the "restricted
period") none of Buyer or any of its affiliates shall transfer the Shares
or the Conversion Shares to any Person that is not Buyer or wholly owned
subsidiary of Buyer. Notwithstanding the foregoing, during the restricted
period Buyer and its wholly owned subsidiaries shall have the right to
transfer (i) any or all Shares and Conversion Shares in privately
negotiated transactions or, in registered offerings pursuant to the
Registration Rights Agreement, to any Person specified in Rule
13d-1(b)(1)(ii) promulgated under the Exchange Act (as such rule was in
effect immediately prior to its February 17, 1998 amendment) who would be
eligible based on such Person's status and passive intent with respect to
the ownership, holding and voting of such Shares or Conversion Shares to
report such Person's ownership of such Shares or Conversion Shares
(assuming such Person owned a sufficient number of such Shares or
Conversion Shares to require such filing) on Schedule 13G, (ii) Shares and
Conversion Shares that (treating all such Shares as converted into
Conversion Shares) represent 5% or less of the issued and outstanding
Common Stock, in privately negotiated transactions or, in registered
offerings pursuant to the Registration Rights Agreement, to any Person who
would not, after such transfer, beneficially own in excess of 9.9% of the
issued and outstanding Common Stock (treating all Shares as converted into
Conversion Shares), (iii) any or all Shares or Conversion Shares in
transactions effected on the New York Stock Exchange (the "NYSE") and
(iv) any or all Shares or Conversion Shares in Rule 144 transactions
subject to the volume limitations of Rule 144(e).
3.4 PROXY/ACQUISITION RESTRICTIONS.
(a) During the restricted period, neither Buyer nor any of its
affiliates (as such term is defined under the Exchange Act) will in any
manner, directly or indirectly, (i) effect or seek, offer or propose
(whether publicly or otherwise) to effect, or cause or participate in or in
any way assist any other Person to effect or seek, offer or propose
(whether publicly or otherwise) to effect or participate in, (A) any tender
or exchange offer, merger or other business combination involving the
Company or any of its Subsidiaries; (B) any recapitalization,
restructuring, liquidation, dissolution or other extraordinary transaction
with respect to the Company or any of its Subsidiaries; or (C) any
"solicitation" of "proxies" or become a "participant" in an "election
contest" (as such terms are used in the proxy rules of the Securities and
Exchange Commission) or consents to vote any voting securities of the
Company; (ii) form, join or in any way participate in a "group" (as defined
under the Exchange Act) or call or seek to call a shareholders' meeting or
propose or solicit shareholders for the approval of any shareholder
proposal so long as such meeting or proposal relates to election of
directors, control of the Company or an extraordinary transaction; or
(iii) otherwise act, alone or in concert with others, to seek to control or
influence the management, Board of Directors or policies of the Company.
(b) Until the earlier to occur of (i) the fifth anniversary of
the date hereof and (ii) the date the aggregate ownership of Buyer and its
affiliates of Conversion Shares (treating all Shares as the number of
Conversion Shares into which they may be converted) is less than 2% of the
outstanding Common Stock (treating all Shares as the number of Conversion
Shares into which they may be converted), neither the Buyer nor any of its
affiliates will in any manner, directly or indirectly effect or seek, offer
or propose to effect, or cause or participate in any acquisition of any
securities (or beneficial ownership interest) of the Company or any of its
Subsidiaries.
(c) Notwithstanding anything to the contrary in Sections 3.3 and
3.4, nothing herein shall prevent or restrict Buyer or its affiliates from
voting any capital stock of the Company, or tendering or surrendering
shares of capital stock into or in connection with a tender or exchange
offer, or recapitalization, restructuring, liquidation or dissolution so
long as such action would not otherwise violate Section 3.4(a).
3.5 LISTING APPLICATION. Tower agrees to promptly, and in no
event later than five business days from the date hereof, submit a listing
application to the NYSE with respect to the Shares and the Conversion
Shares and Buyer shall be entitled to review and comment on such listing
application and the submission of any other materials to the NYSE in
connection with the listing of the Shares and the Conversion Shares. Tower
shall use best efforts to cause the Shares and the Conversion Shares to be
approved for listing on the NYSE and shall provide to Buyer evidence of
such listing when approved and shall maintain the listing of the Common
Stock on the NYSE.
ARTICLE REPRESENTATIONS
4.1 REPRESENTATIONS OF TOWER. Tower represents and warrants to
Buyer on the date hereof and upon the Closing as follows:
(a) Authorization. Tower has the requisite corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution and delivery of this Agreement and the
performance of its obligations hereunder have been duly and validly
authorized by the Board of Directors of Tower and no other corporate
proceedings on the part of Tower are necessary to authorize the execution,
delivery and performance of this Agreement. This Agreement has been duly
executed and delivered by Tower and constitutes, assuming due
authorization, execution and delivery of this Agreement by Buyer, a valid
and binding obligation of Tower, enforceable against Tower in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity.
(b) No Violations; Consents and Approvals.
(i) Except as set forth in Schedule 4.1(b)(i) of the
disclosure schedule of Tower attached hereto (the "Tower
Disclosure Schedule"), neither the execution and delivery of this
Agreement nor the performance by Tower of its obligations
hereunder will (A) conflict with or result in any breach of any
provision of the Amended and Restated Articles of Incorporation
or the by-laws of Tower; (B) result in a breach or violation of,
a default under, or the triggering of any payment or other
material obligations pursuant to, or accelerate vesting under,
any of Tower's stock option or other benefit plans, or any grant
or award made under any of the foregoing; (C) result in a
violation or breach of, or constitute (with or without due notice
or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration or obligation to
repurchase, repay, redeem or acquire or any similar right or
obligation) or result in the creation of any Lien upon any
properties of Tower or any of its Subsidiaries (other than Tower
Permitted Liens) under any of the terms, conditions or provisions
of, any note, mortgage, indenture, letter of credit, other
evidence of indebtedness, franchise, permit, guarantee, license,
lease or agreement or similar instrument or obligation to which
Tower or any of its Subsidiaries is a party or by which any of
them or any of their assets may be bound or (D) assuming that the
filings, registrations, notifications, authorizations, consents
and approvals referred to in subsection (ii) below have been
obtained or made, as the case may be, violate any order,
injunction, decree, statute, rule or regulation of any
Governmental Entity to which Tower or any of its Subsidiaries is
subject, excluding from the foregoing clauses (B), (C) and (D)
such requirements, defaults, breaches, rights, violations or
creations of such liens, security interests, charges or
encumbrances (x) that would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and would not
reasonably be expected to have a material adverse effect on the
ability of Tower to perform its obligations hereunder or (y) that
become applicable as a result of the business or activities in
which Buyer or any of its affiliates is or proposes to be engaged
or any acts or omissions by, or facts pertaining to, Buyer or any
of its affiliates.
(ii) Except as set forth in Schedule 4.1(b)(ii) of the Tower
Disclosure Schedule, no filing or registration with, notification
to, or authorization, consent or approval of, any Governmental
Entity is required in connection with the execution and delivery
of this Agreement or the other Transaction Agreements by Tower or
the performance by Tower of its obligations hereunder or under
the Releases, except (A) the filing of the Supplementary Articles
of Incorporation in accordance with the MGCL and (B) such
consents, approvals, orders, authorizations, notifications,
registrations, declarations and filings (x) the failure of which
to be obtained or made would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and would not have a
material adverse effect on the ability of Tower to perform its
obligations hereunder or thereunder or (y) that became applicable
as a result of the business or activities in which Buyer or any
of its affiliates is or proposes to be engaged or any acts or
omissions by, or facts pertaining to, Buyer or any of its
affiliates.
(c) The representations and warranties set forth in Article III
of the Merger Agreement (except for Sections 3.2, 3.3, 3.20, 3.21 and
3.25), the related disclosure schedule of Tower attached thereto and all
definitions used in such Article III are incorporated by reference as if
set forth in full in this Agreement; provided that the term "Agreement"
when used in such provisions shall be deemed to refer to the Merger
Agreement.
(d) Authorization and Issuance of Capital Stock. The
authorization, issuance, sale and delivery of the Shares pursuant to this
Agreement and the authorization, reservation, issuance, sale and delivery
of the Conversion Shares have been duly authorized by all requisite
corporate action on the part of Tower, and when issued, sold and delivered
in accordance with this Agreement, the Shares and the Conversion Shares
will be validly issued and outstanding, fully paid and nonassessable with
no personal liability attaching to the ownership thereof, will have been
issued in compliance with the Securities Act and applicable state
securities and "blue sky" laws, and will be free of any Liens and not
subject to preemptive or similar rights of the stockholders of Tower or
others.
(e) Reservation of Shares. Tower has reserved a sufficient
number of shares of Series A Preferred Stock for issuance to Buyer pursuant
to this Agreement and a sufficient number of shares of Common Stock for
issuance upon the conversion of the Series A Preferred Stock.
(f) State Takeover Statutes/REIT Ownership Restrictions. Tower
has taken all action necessary to (i) exempt the transactions contemplated
by this Agreement (including the acquisition of the Conversion Shares) from
the operation or triggering of any applicable "fair price," "moratorium,"
"control share acquisition" or any other applicable anti-takeover statute
enacted under the state or federal laws of the United States or similar
statute or regulation and (ii) provide that none of the Shares or
Conversion Shares owned by Buyer or its affiliates shall be, while owned by
Buyer and its affiliates, subject to any restrictions on the transfer or
ownership of capital stock of Tower set forth in its charter (including,
without limitation, article VII thereof, except to the extent that Buyer
has represented, as to itself and its affiliates, otherwise in that certain
representation letter delivered by Reckson to Tower dated the date hereof
(the "Representation Letter")).
4.2 REPRESENTATIONS OF BUYER. Buyer represents and warrants to
Tower that:
(a) Authority and Power. Buyer is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all power and authority to carry on its business
as now conducted. Buyer has heretofore delivered or made available to Tower
true and complete copies of its governing documents or other organizational
documents of like import, as currently in effect.
(b) Authorization. Buyer has the requisite power and authority
to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement and the performance
of its obligations hereunder have been duly and validly authorized by all
requisite action by Buyer and no other proceedings on the part of Buyer are
necessary to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly executed and delivered by Buyer,
and constitutes, assuming due authorization, execution and delivery of this
Agreement by Tower, a valid and binding obligation of Buyer enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
and general principles of equity.
(c) No Violation; Consents and Approvals.
(i) Except as set forth in Schedule 4.2(c)(i) of the
disclosure schedule of Buyer attached hereto (the "Buyer
Disclosure Schedule"), neither the execution and delivery of this
Agreement nor the performance by Buyer of its obligations
hereunder will (A) conflict with or result in any breach of any
provision of the certificate of formation or operating agreement
(or other governing or organizational documents) of Buyer or (B)
result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give
rise to any right of termination, cancellation or acceleration or
obligation to repurchase, repay, redeem or acquire or any similar
right or obligation) under any of the terms, conditions or
provisions of, any note, mortgage, letter of credit, other
evidence of indebtedness, guarantee, license, lease or agreement
or similar instrument or obligation to which Buyer or any of its
Subsidiaries is a party or by which any of them or any of their
assets may be bound or (C) assuming that the filings,
registrations, notifications, authorizations, consents and
approvals referred to in subsection (ii) below have been obtained
or made, as the case may be, violate any order, injunction,
decree, statute, rule or regulation of any Governmental Entity to
which Buyer or any of its Subsidiaries is subject, excluding from
the foregoing clauses (B) and (C) such requirements, defaults,
breaches, rights or violations (x) that would not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect and would not reasonably be expected to have a material
adverse effect on the ability of Buyer to perform its obligations
hereunder or (y) that became applicable as a result of the
business or activities in which Tower or any of its affiliates is
or proposes to be engaged or any acts or omissions by, or facts
pertaining, to Tower or any of its affiliates.
(ii) Except as set forth in Schedule 4.2(c)(ii) of the Buyer
Disclosure Schedule, no filing or registration with, notification
to, or authorization, consent or approval of, any Governmental
Entity is required in connection with the execution and delivery
of this Agreement or the other Transaction Agreements by Buyer or
the performance by Buyer of its obligations hereunder, except
such consents, approvals, orders, authorizations, notifications,
registrations, declarations and filings (x) the failure of which
to be obtained or made would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and would not have a
material adverse effect on the ability of Buyer to perform its
obligations hereunder or (y) that became applicable as a result
of the business or activities in which Tower or any of its
affiliates is or proposes to be engaged or any acts or omissions
by, or facts pertaining to, Tower or any of its affiliates.
(d) Investment. Buyer is acquiring the Shares for its own
account, for investment and not with a view to the distribution thereof
within the meaning of the Securities Act.
(e) Shares Not Registered. Buyer understands that (i) the
Shares have not been, and the Conversion Shares, when and if issued will
not be, registered under the Securities Act by reason of their issuance by
Tower in a transaction exempt from the registration requirements of the
Securities Act and (ii) the Shares and the Conversion Shares may not be
sold unless such disposition is registered under the Securities Act or is
exempt from registration thereunder.
(f) Rule 144. Buyer further understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to
Buyer) promulgated under the Securities Act depends on the satisfaction of
various conditions and that, if applicable, Rule 144 may afford the basis
for sales only in limited amounts.
(g) Accredited Investor. Buyer is an "Accredited Investor" (as
defined in Rule 501(a) under the Securities Act).
(h) Legend. Buyer agrees to the placement on the certificates
representing Shares or Conversion Shares of the following legend:
"THE SECURITY REPRESENTED HEREBY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
REQUIREMENTS OF OR EXEMPTIONS UNDER SUCH ACT AND LAWS
AND IN COMPLIANCE WITH TRANSFER RESTRICTIONS CONTAINED
IN THE MERGER AGREEMENT, DATED AS OF DECEMBER 8 1998, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE COMPANY."
Buyer will be entitled to exchange legended certificates for new
certificates representing Shares or Conversion Shares, as the case may be,
which certificates shall not contain the legend set forth above if (a) such
Shares or Conversion Shares are sold or otherwise disposed of pursuant to a
registration statement that is declared effective by the SEC or pursuant to
Rule 144 under the Securities Act or (b) Buyer delivers a written opinion
of counsel reasonably acceptable to the Company to the effect that such
legend is not required by the applicable provisions of the Securities Act.
ARTICLE MERGER TERMINATION ARRANGEMENTS
5.1 PAYMENT BY BUYER. In the event that any court of competent
jurisdiction issues a final, non-appealable judgment determining that Buyer
and Reckson (i) are, under the terms of the Merger Agreement, obligated to
consummate the Merger but have failed to do so, or (ii) failed to use their
reasonable best efforts to take, or cause to be taken, all actions and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate the Transactions (as defined
in the Merger Agreement), which actions or things are necessary for the
satisfaction of the conditions set forth in Sections 6.1(d) or 6.1(e) of
the Merger Agreement, or which actions or things are necessary for the
Share Issuance Approval (excluding from the foregoing any actions which are
not in violation of the Merger Agreement), then Buyer shall immediately
return to Tower 75% of the Shares purchased (equivalent to $30,000,000 of
purchase price) and retain the balance. The payment made pursuant to this
Section 5.1 shall reduce by $30,000,000 the amount of damages otherwise
payable by Buyer to Tower under any such judgment.
5.2 PAYMENT BY TOWER. In the event that any court of competent
jurisdiction issues a final, non-appealable judgment determining that Tower
(i) is, under the terms of the Merger Agreement, obligated to consummate
the Merger but has failed to do so, or (ii) failed to use its reasonable
best efforts to take, or cause to be taken, all actions and to do, or cause
to be done, all things necessary, proper or advisable under applicable laws
and regulations to consummate the Transactions, which actions or things are
necessary for the satisfaction of the conditions set forth in Sections
6.1(a) or 6.1(d) of the Merger Agreement (excluding from the foregoing any
actions which are not in violation of the Merger Agreement), then Tower
shall immediately pay to Buyer $30,000,000 in cash. The payment made
pursuant to this Section 5.2 shall reduce by $30,000,000 the amount of
damages otherwise payable by Tower to Buyer under any such judgment.
ARTICLE MISCELLANEOUS
6.1 NOTICES. Except as otherwise provided in this Agreement,
all notices, requests, consents and other communications hereunder to any
party shall be deemed to be sufficient if contained in a written instrument
delivered in person or by telecopy, nationally recognized overnight courier
or first class registered or certified mail, return receipt requested,
postage prepaid, addressed to such party at the address set forth below or
such other address as may hereafter be designated in writing by such party
to the other parties:
(i) if to Tower, to:
Tower Realty Trust, Inc.
292 Madison Avenue
New York, New York 10017
Telecopy: (212) 448-1865
Attention: Chief Financial Officer
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022-9931
Telecopy: (212) 735-2000
Attention: Lou R. Kling, Esq.
Howard L. Ellin, Esq.
(ii) if to Buyer, to:
METROPOLITAN PARTNERS LLC
c/o Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Telecopy: (516) 622-6788
Attention: Jason M. Barnett, General Counsel
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004-1980
Telecopy: (212) 859-4000
Attention: Stephen Fraidin, P.C.
All such notices, requests, consents and other communications
shall be deemed to have been given when received.
6.2 EXPENSES. Each of Tower and Buyer shall pay all costs and
expenses incurred by it or on its behalf in connection with this Agreement
and the consummation of the transactions contemplated hereby.
6.3 TRANSFER TAXES. Tower agrees that it will pay, and will
hold Buyer harmless from any and all liability with respect to any stock
transfer, documentary, stamp or other similar taxes which may be determined
to be payable in connection with the execution and delivery and performance
of this Agreement or any modification, amendment or alteration of the terms
or provisions of this Agreement, and that it will similarly pay and hold
Buyer harmless from all such taxes in respect of the issuance of the Shares
and the Conversion Shares to Buyer.
6.4 SURVIVAL. All representations and warranties made by Tower
herein and in any certificates delivered pursuant hereto, whether or not in
connection with the Closing, shall not survive the Closing and the delivery
of this Agreement and the delivery of the Shares.
6.5 NO THIRD PARTY BENEFICIARIES. This Agreement (including the
documents and instruments referred to herein) is not intended to confer
upon any Person other than the parties hereto any rights, duties,
obligations or remedies hereunder.
6.6 EXCHANGES; LOST, STOLEN OR MUTILATED CERTIFICATES. Upon
surrender by Buyer to Tower of any certificate representing Shares or
Conversion Shares purchased or acquired hereunder, Tower at its expense
will, within five business days, issue in exchange therefor, and deliver to
Buyer, a new certificate or certificates representing such Shares or
Conversion Shares, in such denominations as may be requested by Buyer.
Upon receipt of evidence reasonably satisfactory to Tower of the loss,
theft, destruction or mutilation of any certificate representing any Shares
or Conversion Shares purchased or acquired by Buyer hereunder, and in case
of any such loss, theft or destruction, upon delivery of an indemnity
agreement reasonably satisfactory to Tower, or in case of any such
mutilation, upon surrender and cancellation of such certificate, Tower at
its expense will, within five business days, issue and deliver to Buyer a
new certificate for such Shares or Conversion Shares of like tenor, in lieu
of such lost, stolen or mutilated certificate.
6.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (regardless
of the laws that might otherwise govern under applicable principles of
conflicts of laws thereof) as to all matters, including, but not limited
to, matters of validity, construction, effect, performance and remedies.
Each of Tower and Buyer hereby irrevocably and unconditionally consents to
submit to the exclusive jurisdiction of the courts of the State of New York
and of the United States of America located in the State of New York (the
"New York Courts") for any litigation arising out of or relating to this
Agreement or the Transactions (and agrees not to commence litigation
relating thereto except in such courts), waives any objection to the laying
of venue of any such litigation in the New York Courts and agrees not to
plead or claim in any New York Court that such litigation brought therein
has been brought in any inconvenient forum.
6.8 CAPTIONS. The descriptive headings of the various sections
or parts of this Agreement are for convenience only and shall not affect
the meaning or construction of any of the provisions hereof.
6.9 NO FINDERS OR BROKERS. Except for Merrill Lynch, Pierce,
Fenner & Smith Incorporated, whose fee will be paid by Tower, and except
for Salomon Smith Barney, Inc., whose fee will be paid by Reckson, there is
no investment banker, broker, finder or other intermediary that has been
retained by, or is authorized to act on behalf of, either of the parties
hereto or their respective affiliates that would be entitled to any fee or
commission from either of the parties hereto or their respective affiliates
upon consummation of the transactions contemplated hereby.
6.10 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power
or remedy preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to
the parties hereto at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement,
and any consent to any departure by any party from the terms of any
provision of this Agreement, shall be effective (i) only if it is made or
given in writing and signed by all the parties hereto, and (ii) only in the
specific instance and for the specific purpose for which it is made or
given.
6.11 FURTHER ASSURANCES. At any time or from time to time after
the Closing, Buyer, on one hand, and Tower, on the other hand, agree to
cooperate with each other, and at the request of the other party, to
execute and deliver any further instruments or documents and to take all
such further action as the other party may reasonably request in order to
evidence or effectuate the consummation of the transactions contemplated
hereby and to otherwise carry out the intent of the parties hereunder.
6.12 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure
to the benefit of Tower and Buyer and their respective successors and
assigns. Except as otherwise expressly provided herein, this Agreement may
not be assigned by either party. Any purported assignment in violation of
this Agreement shall be null and void. Notwithstanding the foregoing,
Buyer may assign this Agreement to a Subsidiary, and upon any such
assignment, such assignee shall have and be able to exercise all the rights
of Buyer hereunder.
6.13 SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired, unless the provisions held invalid, illegal or unenforceable
shall substantially impair the benefits of the remaining provisions hereof.
6.14 REPRESENTATION LETTER. Tower's representations are
predicated on the accuracy and completeness of the Representation Letter.
6.15 ENTIRE AGREEMENT. This Agreement, the Representation Letter
and the other Transaction Agreements, together with the exhibits and
schedules hereto and thereto, are intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein or therein or in the Transaction Agreements.
This Agreement and the other Transaction Agreements, together with the
exhibits and schedules hereto and thereto, supersede all prior agreements
and understandings between the parties with respect to such subject matter.
6.16 VARIATIONS IN PRONOUNS. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as
the context may require.
6.17 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, each of the undersigned has executed, or has
caused to be executed, this Agreement as of the date first written above.
TOWER REALTY TRUST, INC.
By: /s/ Lester S. Garfinkel
-------------------------------------
Name: Lester S. Garfinkel
Title: Executive Vice President,
Finance and Administration
and Chief
Financial Off
METROPOLITAN PARTNERS LLC
By: Reckson Operating Partnership, L.P.,
a member
By: Reckson Associates Realty Corp., its
sole general partner
By: /s/ Scott H. Rechler
-------------------------------------
Name: Scott H. Rechler
Title: President
EXHIBIT 10.9
TOWER REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
$40 MILLION SERIES A CONVERTIBLE PREFERRED SHARES
(LIQUIDATION PREFERENCE $18.44 PER SHARE)
Tower Realty Trust, Inc., a Maryland corporation (the
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: Under a power contained in Article VI of the charter of
the Corporation (together with these Articles Supplementary herein called
the "Charter"), the board of directors of the Corporation (the "Board of
Directors"), at a meeting duly convened and held on December 7, 1998, in
accordance with the Agreement and Plan of Merger, dated as of December 8,
1998, by and among the Corporation, Reckson Associates Realty Corp., a
Maryland corporation, and Metropolitan Partners LLC, a Delaware limited
liability company (the "Merger Agreement"), adopted resolutions classifying
and designating 2,169,197 shares (the "Shares") of its Preferred Stock, par
value $.01 per share (as defined in the Charter), into a class designated
Series A Convertible Preferred Stock, par value $.01 per share, liquidation
preference $18.44 per share, and has provided for the issuance of such
class.
SECOND: The preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends and other distributions,
qualifications and terms and conditions of redemption of the shares of such
class of Preferred Stock, which upon any restatement of the Charter shall
be deemed to be part of Article VI of the Charter, are as follows:
SERIES A PREFERRED STOCK
Section 1. Number of Shares and Designation. A series of
Preferred Stock of the Corporation, designated as Series A Convertible
Preferred Stock, par value $.01 per share, liquidation preference $18.44
per share (the "Series A Preferred Shares"), is hereby established. The
number of shares of Preferred Stock constituting such series shall be
2,169,197.
Section 2. Definitions. For purposes of the Series A Preferred
Shares, the following terms shall have the meanings indicated below:
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series A
Preferred Shares.
"Business Day" shall mean any day other than a Saturday, Sunday
or a day on which state or federally chartered banking institutions in
New York, New York are authorized or required by law, regulation or
executive order to close.
"Common Shares" shall mean the common stock of the Corporation,
par value $.01 per share.
"Constituent Person" shall have the meaning set forth in
paragraph (e) of Section 7 hereof.
"Conversion Price" shall mean the conversion price per Common
Share for which the Series A Preferred Shares are convertible, as such
Conversion Price may be adjusted pursuant to Section 7 hereof. The
initial conversion price shall be $18.44 per share (equivalent to an
initial conversion rate of 1 Common Share for each Series A Preferred
Share).
"Current Market Price" of publicly traded Common Shares or any
other class of shares or other security of the Corporation or any
other issuer for any day shall mean the last reported sales price,
regular way, on such day, or, if no sale takes place on such day, the
average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the New York Stock Exchange
("NYSE") or, if such security is not listed or admitted for trading on
the NYSE, on the principal national securities exchange on which such
security is listed or admitted for trading or, if not listed or
admitted for trading on any national securities exchange, on the
NASDAQ National Market System ("NASDAQ") or, if such security is not
quoted on NASDAQ, the average of the closing bid and asked prices on
such day in the over-the-counter market as reported by NASDAQ or, if
bid and asked prices for such security on such day shall not have been
reported through NASDAQ, the average of the bid and asked prices on
such day as furnished by any NYSE member firm regularly making a
market in such security selected for such purpose by the Chief
Executive Officer of the Corporation or the Board of Directors.
"Dividend Payment Date" shall mean the first calendar day of
January, April, July and October, in each year, commencing on January
1, 1999; provided, however that if any Dividend Payment Date falls on
any day other than a Business Day, the dividend payment due on such
Dividend Payment Date shall be paid on the first Business Day
immediately following such Dividend Payment Date.
"Dividend Periods" shall mean quarterly dividend periods
commencing on January 1, April 1, July 1 and October 1 of each year
and ending on and including the day preceding the first day of the
next succeeding Dividend Period other than (a) the initial Dividend
Period, which shall commence on the Issue Date and end on and include
December 31, 1998 and (b) if the Triggering Date occurs on a date
other than January 1, April 1, July 1 or October 1 (the "quarter
dates"), the period from the immediately prior quarter date to the
Trigger Date and the period from and including the Trigger Date to the
immediately succeeding quarter date.
"Fair Market Value" shall mean the average of the daily Current
Market Prices per Common Share during the ten (10) consecutive Trading
Days commencing on the 12th Trading Day prior to the date of any
determination of Fair Market Value.
"Issue Date" shall mean the first date on which any Series A
Preferred Shares are issued and sold.
"Junior Shares" shall mean the Common Shares and any other class
or series of shares of the Corporation constituting junior stock
within the meaning set forth in paragraph (c) of Section 9 hereof.
"Liquidation Preference" shall have the meaning set forth in
paragraph (a) of Section 4 hereof.
"Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of December 7, 1998, by and among the Corporation, Reckson
Associates Realty Corp., a Maryland corporation, Reckson Operating
Limited Partnership, a Delaware limited partnership ("Reckson OP"),
and Metropolitan Partners LLC, a Delaware limited liability company.
"Non-Electing Share" shall have the meaning set forth in
paragraph (e) of Section 7 hereof.
"Parity Shares" shall have the meaning set forth in paragraph (b)
(i) of Section 9 hereof.
"Person" shall mean any individual, corporation, partnership,
estate, trust (including a trust qualified under Section 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set aside
for or to be used exclusively for the purposes described in Section
642(c) of the Code, association, private foundation within the meaning
of Section 509(a) of the Code, joint stock company or other entity,
and also includes a group as that term is used for purposes of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended.
"Press Release" shall have the meaning set forth in paragraph (b)
of Section 5 hereof.
"Redemption Date" shall have the meaning set forth in paragraph
(b)
of Section 5 hereof.
"Securities" shall have the meaning set forth in paragraph
(d)(iii) of Section 7 hereof.
"Series A Preferred Shares" shall have the meaning set forth in
Section 1 hereof.
"Set apart for payment" shall be deemed to include, without any
further action, the following: the recording by the Corporation in
its accounting ledgers of any accounting or bookkeeping entry which
indicates, pursuant to an authorization of a dividend or other
distribution by the Board of Directors, the allocation of funds to be
so paid on any series or class of shares of the Corporation; provided,
however, that if any funds for any class or series of Junior Shares or
any class or series of shares ranking on a parity with the Series A
Preferred Shares as to the payment of dividends are placed in a
separate account of the Corporation or delivered to a disbursing,
paying or other similar agent, then "set apart for payment" with
respect to the Series A Preferred Shares shall mean placing such funds
in a separate account or delivering such funds to a disbursing, paying
or other similar agent.
"Trading Day" shall mean any day on which the securities in
question are traded on the NYSE, or if such securities are not listed
or admitted for trading on the NYSE, on the principal national
securities exchange on which such securities are listed or admitted,
or if not listed or admitted for trading on any national securities
exchange, on NASDAQ, or if such securities are not quoted on NASDAQ,
in the applicable securities market in which the securities are
traded.
"Transaction" shall have the meaning set forth in paragraph (e)
of Section 7 hereof.
"Transfer Agent" shall mean such agent or agents of the
Corporation as may be designated by the Board of Directors or its
designee as the transfer agent for the Series A Preferred Shares.
"Trigger Date" shall mean the date of termination of the Merger
Agreement.
Section 3. Dividends. (a) The holders of Series A Preferred
Shares shall be entitled to receive, when, as and if authorized and
declared by the Board of Directors out of assets legally available for that
purpose, dividends payable in cash (i) after the Trigger Date, at a rate
per annum equal to 10% of the Liquidation Preference per Series A Preferred
Share held and (ii) prior to the Trigger Date, in a per share amount equal
to the annual per share amount of dividends payable in respect of the
Common Shares into which such holder's Series A Preferred Shares would
convert at such time had the Trigger Date already occurred ("Annual
Dividend Rate"). Such dividends shall be cumulative only after the Trigger
Date, whether or not there shall be assets of the Corporation legally
available for the payment of such dividends, and shall be payable
quarterly, when, as and if authorized by the Board of Directors and
declared by the Corporation, in arrears on Dividend Payment Dates,
commencing on the first Dividend Payment Date of any such Dividend Period.
Each such dividend shall be payable in arrears to the holders of record of
the Series A Preferred Shares, as they appear in the stock records of the
Corporation at the close of business on the applicable record dates, which
shall be such date designated by the Board of Directors for the payment of
dividends that is not more than 30 days nor less than 10 days preceding the
applicable Dividend Payment Date (the "Dividend Payment Record Date"), as
shall be fixed by the Board of Directors. For the initial Dividend Period,
the Dividend Payment Record Date shall be December 8, 1998. Accrued and
unpaid dividends for any past Dividend Periods may be authorized and
declared and paid at any time, without reference to any regular Dividend
Payment Date, to holders of record on such date, not exceeding 45 days
preceding the payment date thereof, as may be fixed by the Board of
Directors.
(b) (i) The amount of dividends payable for each full Dividend
Period for the Series A Preferred Shares shall be computed by dividing the
Annual Dividend Rate by four. The amount of dividends payable for the
initial Dividend Period, the Dividend Periods immediately before and after
the Trigger Date or any other period shorter or longer than a full Dividend
Period, on the Series A Preferred Shares shall be computed on the basis of
twelve 30-day months and a 360-day year. If the Trigger Date occurs on
other than a quarter date, then holders of Series A Preferred Shares shall
be entitled to pro rata dividends, at the applicable Annual Dividend Rate,
in respect of the Dividend Period immediately preceding and immediately
following the Trigger Date. Such dividends shall be payable to holders of
record of Series A Preferred Shares on the next Dividend Payment Date.
After the Trigger Date, Holders of Series A Preferred Shares shall not be
entitled to any dividends, whether payable in cash, property or stock, in
excess of cumulative dividends, as herein provided, on the Series A
Preferred Shares. No interest, or sum of money in lieu of interest, shall
be payable in respect of any dividend payment or payments on the Series A
Preferred Shares that may be in arrears.
(ii) Between the Issue Date and the Trigger Date, dividends
for the Series A Preferred Shares for each Dividend Period shall be paid
simultaneously with and in the same amount per share as the dividends that
would be payable on the shares of Common Stock into which each share of
Series A Preferred Shares would convert at such time, had the Trigger Date
already occurred.
Section 4. Liquidation Preference. (a) In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, before any payment or distribution of the assets
of the Corporation (whether capital or surplus) shall be made to or set
apart for the holders of Junior Shares, the holders of Series A Preferred
Shares shall be entitled to receive Eighteen and Forty-Four One-Hundredths
Dollars ($18.44) per Series A Preferred Share (the "Liquidation
Preference") plus an amount equal to all dividends (whether or not earned
or declared) accrued and unpaid thereon commencing on the Trigger Date to
the date of final distribution to such holder, but such holders of Series A
Preferred Shares shall not be entitled to any further payment. If, upon any
such liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of
Series A Preferred Shares shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other Parity
Shares, then such assets, or the proceeds thereof, shall be distributed
among the holders of such Series A Preferred Shares and any such other
Parity Shares ratably in accordance with the respective amounts that would
be payable on such Series A Preferred Shares and any such other Parity
Shares if all amounts payable thereon were paid in full. For the purposes
of this Section 4, (i) a consolidation or merger of the Corporation with
one or more entities, (ii) a statutory share exchange and (iii) a sale or
transfer of all or substantially all of the Corporation's assets, shall not
be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series
or class or classes of shares of the Corporation ranking on a parity with
or prior to the Series A Preferred Shares upon liquidation, dissolution or
winding up, upon any liquidation, dissolution or winding up of the
Corporation, after payment shall have been made in full to the holders of
the Series A Preferred Shares, as provided in this Section 4, any series or
class or classes of Junior Shares shall, subject to any respective terms
and provisions applying thereto, be entitled to receive any and all assets
remaining to be paid or distributed, and the holders of the Series A
Preferred Shares shall not be entitled to share therein.
Section 5. Redemption at the Option of the Corporation. (a)
The Corporation, at its option, may redeem the Series A Preferred Shares,
in whole or in part at any time, or from time to time, subject to Section
5(b), (i) within 120 days after the Trigger Date; and (ii) at any time
after the fourth anniversary of the Issue Date, in such case, at a
redemption price equal to the aggregate Liquidation Preference of the
Series A Preferred Shares being redeemed, plus the amounts indicated in
Section 5(b) hereof.
(b) (i) Upon any redemption of the Series A Preferred Shares
pursuant to this Section 5, the Corporation shall pay all accrued and
unpaid dividends, if any, from the Trigger Date to the date fixed for
redemption (the "Redemption Date"), without interest. If the Redemption
Date falls after a dividend payment record date and prior to the
corresponding Dividend Payment Date, then each holder of Series A Preferred
Shares at the close of business on such dividend payment record date shall
be entitled to the dividend payable on such shares on the corresponding
Dividend Payment Date notwithstanding the redemption of such shares before
such Dividend Payment Date. Except as provided above, the Corporation
shall make no payment or allowance for unpaid dividends, whether or not in
arrears, on Series A Preferred Shares called for redemption. In order to
exercise its redemption option, the Corporation shall mail a notice of
redemption to the holders of Series A Preferred Shares in accordance with
Section 5(d) hereof, and, if required by law, issue a press release
announcing the redemption (the "Press Release"). The Redemption Date shall
be selected by the Corporation, shall be specified in the notice of
redemption and shall be not less than 30 days or more than 60 days after
the date on which the Corporation mails the notice of redemption provided,
however, that in the case of a redemption pursuant to clause (i) of
subsection (a), the Corporation shall give notice of its intention to
redeem the Series A Preferred Shares on or before the 60th day following
the Trigger Date (and in no event less than 10 days prior to the Redemption
Date) and shall, subject to clause (b)(ii) below, consummate such
redemption on or before the 60th day following the date on which the
Corporation mails the notice of redemption. The Corporation may not
withdraw or revoke any notice of redemption.
(ii) In the case of notice of redemption delivered pursuant
to clause (i) of subsection (a), the holders of the Series A Preferred
Shares shall have the right to postpone the proposed Redemption Date by up
to 45 days by delivery to the Corporation, within five business days after
the Company provides a notice of redemption, a notice (the "Tolling
Notice") requesting such postponement. The delivery of a Tolling Notice
will postpone the Redemption Date by the requested number of days and, if
the new Redemption Date is more than 90 days after the Trigger Date, will
extend the date by which the redemption must be consummated to the later of
(I) the 60th day following the date on which the Corporation mails the
notice of redemption and (II) the 30th day following the new Redemption
Date. The holders of Series A Preferred shall have the right to deliver
only one Tolling Notice.
(c) If full cumulative dividends on the Series A Preferred
Shares, commencing as of the date provided in Section 3(a), and any other
class or series of Parity Shares of the Corporation have not been
authorized and paid or authorized and set apart for payment, the Series A
Preferred Shares or Parity Shares may not be redeemed under this Section 5
in part and the Corporation may not purchase or acquire the Series A
Preferred Shares or any Parity Shares, other than pursuant to a purchase or
exchange offer made on the same terms to all holders of Series A Preferred
Shares or Parity Shares, as the case may be.
(d) If the Corporation shall redeem shares of Series A Preferred
Shares pursuant to paragraph (a) of this Section 5, notice of such
redemption shall be given to each holder of record of the Series A
Preferred Shares to be redeemed; provided that in the event the Corporation
issues the Press Release, such notice shall be given not more than four
Business Days after the date on which the Corporation issues the Press
Release. Such notice shall be provided by first class mail, postage
prepaid, at such holder's address as the same appears on the stock records
of the Corporation, or, if required by law, by publication in The Wall
Street Journal or The New York Times, or if neither such newspaper is then
being published, any other daily newspaper of national circulation. If the
Corporation elects to provide such notice by publication, it shall also
promptly mail notice of such redemption to the holders of the Series A
Preferred Shares to be redeemed. Neither the failure to mail any notice
required by this paragraph (d), nor any defect therein or in the mailing
thereof, to any particular holder, shall affect the sufficiency of the
notice or the validity of the proceedings for redemption with respect to
the other holders. Any notice that was mailed in the manner herein
provided shall be conclusively presumed to have been duly given on the date
mailed whether or not the holder receives the notice. Each such mailed or
published notice shall state, as appropriate: (1) the Redemption Date; (2)
the number of Series A Preferred Shares to be redeemed and, if fewer than
all the Series A Preferred Shares held by such holder are to be redeemed,
the number of such Series A Preferred Shares to be redeemed from such
holder; (3) the place or places at which certificates for such Series A
Preferred Shares are to be surrendered for certificates representing Common
Shares; (4) the Conversion Price and (5) that dividends on the shares to be
redeemed shall cease to accrue on such Redemption Date except as otherwise
provided herein. Notice having been published or mailed as aforesaid, from
and after the Redemption Date (unless the Corporation shall fail to make
available an amount of cash necessary to effect such redemption), (i)
except as otherwise provided herein, dividends on the Series A Preferred
Shares so called for redemption shall cease to accrue, (ii) said shares
shall no longer be deemed to be outstanding, and (iii) all rights of the
holders thereof as holders of Series A Preferred Shares of the Corporation,
including, without limitation, the conversion rights, shall cease (except
the right to receive the amount payable upon surrender and endorsement of
certificates representing Series A Preferred Shares for redemption). The
Corporation's obligation to provide cash in accordance with the preceding
sentence shall be deemed fulfilled if, on or before the Redemption Date,
the Corporation shall deposit with a bank or trust company (which may be an
affiliate of the Corporation) that has an office in the Borough of
Manhattan, City of New York, and that has, or is an affiliate of a bank or
trust company that has, a capital and surplus of at least $50,000,000, any
cash necessary for such redemption, in trust, with irrevocable instructions
that such cash be applied to the redemption of the Series A Preferred
Shares so called for redemption. At the close of business on the Redemption
Date, each holder of Series A Preferred Shares to be redeemed (unless the
Corporation defaults in the delivery of the cash payable on such Redemption
Date) shall cease to have any rights with respect to such Series A
Preferred Shares, regardless of whether such holder has surrendered the
certificates representing the Series A Preferred Shares. No interest shall
accrue for the benefit of each holder of Series A Preferred Shares to be
redeemed on any cash so set aside by the Corporation. Subject to applicable
escheat laws, any such cash unclaimed at the end of two years from the
Redemption Date shall revert to the general funds of the Corporation, after
which reversion the holders of such shares so called for redemption shall
look only to the general funds of the Corporation for the payment of such
cash.
As promptly as practicable after the surrender in accordance
with said notice of the certificates for any such Series A Preferred Shares
so redeemed (properly endorsed or assigned for transfer, if the Corporation
shall so require and if the notice shall so state), such Series A Preferred
Shares shall be exchanged for any cash (without interest thereon) for which
such Series A Preferred Shares have been redeemed. If fewer than all of
the outstanding Series A Preferred Shares are to be redeemed, the Series A
Preferred Shares to be redeemed shall be selected by the Corporation from
the outstanding Series A Preferred Shares not previously called for
redemption by lot or pro rata (as nearly as may be) or by any other method
determined by the Corporation in its sole discretion to be equitable. If
fewer than all the Series A Preferred Shares represented by any certificate
are redeemed, then new certificates representing the unredeemed Series A
Preferred Shares shall be issued without cost to the holder thereof.
Section 6. Reacquired Shares to Be Retired.
All Series A Preferred Shares which shall have been issued and
reacquired in any manner by the Corporation shall be restored to the status
of authorized but unissued shares of Preferred Stock, without designation
as to series.
Section 7. Conversion.
Holders of Series A Preferred Shares shall have the right to
convert all or a portion of such shares into Common Shares, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 7, a holder of Series A Preferred Shares shall have the right, at
his or her option, at any time following the Trigger Date, to convert, in
whole or in part, such shares into the number of fully paid and
non-assessable Common Shares obtained by dividing the aggregate Liquidation
Preference of such Series A Preferred Shares to be converted by the
Conversion Price (as in effect at the time and on the date provided for in
the last paragraph of paragraph (b) of this Section 7) by surrendering such
Series A Preferred Shares to be converted, such surrender to be made in the
manner provided in paragraph (b) of this Section 7; provided, however, that
the right to convert Series A Preferred Shares called for redemption
pursuant to Section 5 hereof shall terminate at the close of business three
(3) Business Days prior to the Redemption Date fixed for such redemption,
unless the Corporation shall default in making payment of any cash payable
upon such redemption under Section 5 hereof.
(b) In order to exercise the conversion right, the holder of
each Series A Preferred Share to be converted shall surrender the
certificate representing such Series A Preferred Share, duly endorsed or
assigned to the Corporation or in blank, at the principal office of the
Transfer Agent, accompanied by written notice to the Corporation that the
holder thereof elects to convert such Series A Preferred Shares. Unless
the Common Shares issuable on conversion are to be issued in the same name
as the name in which such Series A Preferred Shares are registered, in
which case the Corporation shall bear the related taxes, each share
surrendered for conversion shall be accompanied by instruments of transfer,
in form satisfactory to the Corporation, duly executed by the holder or
such holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
Holders of Series A Preferred Shares at the close of business on
a Dividend Payment Record Date shall be entitled to receive the dividend
payable on such Series A Preferred Shares on the corresponding Dividend
Payment Date notwithstanding the conversion thereof following such Dividend
Payment Record Date and prior to such Dividend Payment Date. A holder of
Series A Preferred Shares on a Dividend Payment Record Date who (or whose
transferees) tenders any such Series A Preferred Shares for conversion into
Common Shares on such Dividend Payment Date will receive the dividend
payable by the Corporation on such Series A Preferred Shares on such date.
Except as provided above, the Corporation shall make no payment or
allowance for unpaid dividends, whether or not in arrears, on converted
Series A Preferred Shares or for dividends on the Common Shares issued upon
such conversion.
As promptly as practicable after the surrender of certificates
for Series A Preferred Shares as aforesaid, the Corporation shall issue and
shall deliver at such office to such holder, or on his or her written
order, a certificate or certificates for the number of full Common Shares
issuable upon the conversion of such shares in accordance with the
provisions of this Section 7, and any fractional interest in respect of a
Common Share arising upon such conversion shall be settled as provided in
paragraph (c) of this Section 7.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates
representing Series A Preferred Shares shall have been surrendered and such
notice received by the Corporation as aforesaid, and the person or persons
in whose name or names any certificate or certificates representing Common
Shares shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of the Common Shares represented
thereby at such time on such date, and such conversion shall be at the
Conversion Price in effect at such time and on such date unless the stock
transfer books of the Corporation shall be closed on that date, in which
event such person or persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on
which such stock transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date on which such Series A Preferred
Shares shall have been surrendered and such notice received by the
Corporation.
(c) No fractional shares or scrip representing fractions of
Common Shares shall be issued upon conversion of the Series A Preferred
Shares. Instead of any fractional interest in a Common Share that would
otherwise be deliverable upon the conversion of a Series A Preferred Share,
the Corporation shall pay to the holder of such Series A Preferred Share an
amount in cash based upon the Current Market Price of Common Shares on the
Trading Day immediately preceding the date of conversion. If more than one
Series A Preferred Share shall be surrendered for conversion at one time by
the same holder, the number of full Common Shares issuable upon conversion
thereof shall be computed on the basis of the aggregate number of Series A
Preferred Shares so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its Common Shares in the form of
Common Shares, (B) subdivide its outstanding Common Shares into a
greater number of shares, (C) combine its outstanding Common Shares
into a smaller number of shares or (D) issue any equity securities by
reclassification of its Common Shares (other than any reclassification
by way of merger or binding share exchange that is subject to Section
7(e)), then the Conversion Price in effect at the opening of business
on the day following the date fixed for the determination of
shareholders entitled to receive such dividend or distribution or at
the opening of business on the day following the day on which such
subdivision, combination or reclassification becomes effective, as the
case may be, shall be adjusted so that the holder of any Series A
Preferred Share thereafter surrendered for conversion shall be
entitled to receive the number of Common Shares that such holder would
have owned or have been entitled to receive after the happening of any
of the events described above had such Series A Preferred Shares been
converted immediately prior to the record date in the case of a
dividend or distribution or the effective date in the case of a
subdivision, combination or reclassification. An adjustment made
pursuant to this subparagraph (i) shall become effective immediately
after the opening of business on the day next following such record
date (subject to paragraph (h) below) in the case of a dividend or
distribution and shall become effective immediately after the opening
of business on the day next following the effective date in the case
of a subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date
rights, options or warrants to all holders of Common Shares entitling
them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase Common Shares (or
securities convertible into or exchangeable for Common Shares) at a
price per share less than the Fair Market Value per Common Share on
the record date for the determination of shareholders entitled to
receive such rights, options or warrants, then the Conversion Price in
effect at the opening of business on the day next following such
record date shall be adjusted to equal the price determined by
multiplying (I) the Conversion Price in effect immediately prior to
the opening of business on the day following the record date fixed for
such determination by (II) a fraction, the numerator of which shall be
the sum of (A) the number of Common Shares outstanding on the close of
business on the record date fixed for such determination and (B) the
number of shares that the aggregate proceeds to the Corporation from
the exercise of such rights, options or warrants for Common Shares
would purchase at such Fair Market Value, and the denominator of which
shall be the sum of (A) the number of Common Shares outstanding on the
close of business on the record date fixed for such determination and
(B) the number of additional Common Shares offered for subscription or
purchase pursuant to such rights, options or warrants. Such
adjustment shall became effective immediately after the opening of
business on the day next following such record date (subject to
paragraph (h) below). In determining whether any rights, options or
warrants entitle the holders of Common Shares to subscribe for or
purchase Common Shares at less than such Fair Market Value, there
shall be taken into account any consideration received by the
Corporation upon issuance and upon exercise of such rights, options or
warrants, the value of such consideration, if other than cash, to be
determined by the Corporation's Board of Directors, whose
determination shall be conclusive.
(iii) If the Corporation shall distribute to all holders
of its Common Shares any equity securities of the Corporation (other
than Common Shares) or evidences of its indebtedness or assets
(excluding cash dividends or distributions) or rights or warrants to
subscribe for or purchase any of its securities (excluding those
rights and warrants issued to all holders of Common Shares entitling
them for a period expiring within 45 days after the record date
referred to in subparagraph (ii) above to subscribe for or purchase
Common Shares, which rights and warrants are referred to in and
treated under subparagraph (ii) above) (any of the foregoing being
hereinafter in this subparagraph (iii) called the "Securities"), then
in each case the Conversion Price shall be adjusted so that it shall
equal the price determined by multiplying (I) the Conversion Price in
effect immediately prior to the close of business on the date fixed
for the determination of shareholders entitled to receive such
distribution by (II) a fraction, the numerator of which shall be the
Fair Market Value per Common Share on the record date mentioned below
less the then fair market value (as determined by the Corporation's
Board of Directors, whose determination shall be conclusive) of the
portion of the shares or assets or evidences of indebtedness so
distributed or of such rights or warrants applicable to one Common
Share, and the denominator of which shall be the Fair Market Value per
share of the Common Shares on the record date mentioned below. Such
adjustment shall become effective immediately upon the opening of
business on the day next following (subject to paragraph (h) below)
the record date for the determination of shareholders entitled to
receive such distribution. For the purposes of this subparagraph
(iii), the distribution of a Security, which is distributed not only
to the holders of the Common Shares on the date fixed for the
determination of shareholders entitled to such distribution of such
Security, but also is required to be distributed with each Common
Share delivered to a Person converting a Series A Preferred Share
after such determination date, shall not require an adjustment of the
Conversion Price pursuant to this subparagraph (iii); provided that on
the date, if any, on which a Person converting a Series A Preferred
Share would no longer be entitled to receive such Security with a
Common Share (other than as a result of the termination of all such
Securities), a distribution of such Securities shall be deemed to have
occurred, and the Conversion Price shall be adjusted as provided in
this subparagraph (iii) (and such day shall be deemed to be "the date
fixed for the determination of the shareholders entitled to receive
such distribution" and "the record date" within the meaning of the two
preceding sentences).
The occurrence of a distribution or the occurrence of any other
event as a result of which holders of Series A Preferred Shares shall
not be entitled to receive rights, including exchange rights (the
"Rights") pursuant to any shareholders' protective rights agreement
(the "Agreement") that may be adopted by the Corporation such that the
holders thereunder shall be deemed to have converted such shares into
Common Shares immediately prior to the occurrence of such distribution
or event, shall not be deemed a distribution of Securities for the
purposes of any Conversion Price adjustment pursuant to this
subparagraph (iii) or otherwise give rise to any Conversion Price
adjustment pursuant to this Section 7; provided, however, that in lieu
of any adjustment to the Conversion Price as a result of any such a
distribution or occurrence, the Corporation shall make provision so
that Rights, to the extent issuable at the time of conversion of any
Series A Preferred Shares into Common Shares, shall issue and attach
to such Common Shares then issued upon conversion in the amount and
manner and to the extent and as provided in the Agreement in respect
of issuances at the time of Common Shares other than upon conversion.
(iv) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease
of at least 1% in the Conversion Price; provided, however, that any
adjustments that by reason of this subparagraph (iv) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment until made; and provided, further, that any
adjustment shall be required and made in accordance with the
provisions of this Section 7 (other than this subparagraph (iv)) not
later than such time as may be required in order to preserve the
tax-free nature of a distribution to the holders of Common Shares.
Notwithstanding any other provisions of this Section 7, the
Corporation shall not be required to make any adjustment of the
Conversion Price for the issuance of any Common Shares pursuant to any
plan providing for the reinvestment of dividends or interest payable
on securities of the Corporation and the investment of additional
optional amounts in Common Shares under such plan. All calculations
under this Section 7 shall be made to the nearest cent (with $.005
being rounded upward) or to the nearest one-tenth of a share (with .05
of a share being rounded upward), as the case may be. Anything in
this paragraph (d) to the contrary notwithstanding, the Corporation
shall be entitled, to the extent permitted by law, to make such
reductions in the Conversion Price, in addition to those required by
this paragraph (d), as it in its sole discretion shall determine to be
advisable in order that any stock dividends, subdivision of shares,
reclassification or combination of shares, distribution of rights,
options or warrants to purchase stock or securities, or a distribution
of other assets (other than cash dividends) hereafter made by the
Corporation to its shareholders shall not be taxable.
(e) If the Corporation shall be a party to any transaction
(including, without limitation, a merger, consolidation, statutory share
exchange, self tender offer for all or substantially all Common Shares,
sale of all or substantially all of the Corporation's assets or
recapitalization of the Common Shares and excluding any transaction as to
which subparagraph (d)(i) of this Section 7 applies) (each of the foregoing
being referred to herein as a "Transaction"), in each case as a result of
which Common Shares shall be converted into the right to receive stock,
securities or other property (including cash or any combination thereof),
each Series A Preferred Share that is not converted into the right to
receive stock, securities or other property in connection with such
Transaction shall thereafter be convertible into the kind and amount of
shares of stock, securities and other property (including cash or any
combination thereof) receivable upon the consummation of such Transaction
by a holder of that number of Common Shares into which one Series A
Preferred Share was convertible immediately prior to such Transaction,
assuming such holder of Common Shares (i) is not a Person with which the
Corporation consolidated or into which the Corporation merged or which
merged into the Corporation or to which such sale or transfer was made, as
the case may be (a "Constituent Person"), or an affiliate of a Constituent
Person and (ii) failed to exercise his or her rights of the election, if
any, as to the kind or amount of stock, securities and other property
(including cash or any combination thereof) receivable upon such
Transaction (provided that if the kind or amount of stock, securities and
other property (including cash or any combination thereof) receivable upon
consummation of such Transaction is not the same for each Common Share held
immediately prior to such Transaction by other than a Constituent Person or
an affiliate thereof and in respect of which such rights of election shall
not have been exercised ("Non-Electing Share"), then for the purpose of
this paragraph (e) the kind and amount of stock, securities and other
property (including cash or any combination thereof) receivable upon such
Transaction by each Non-Electing Share shall be deemed to be the kind and
amount so receivable per share by a plurality of the Non-Electing Shares).
The Corporation shall not be a party to any Transaction unless the terms of
such Transaction are consistent with the provisions of this paragraph (e),
and it shall not consent or agree to the occurrence of any Transaction
until the Corporation has entered into an agreement with the successor or
purchasing entity, as the case may be, for the benefit of the holders of
the Series A Preferred Shares that will contain provisions enabling the
holders of the Series A Preferred Shares that remain outstanding after such
Transaction to convert their Series A Preferred Shares into the
consideration received by holders of Common Shares at the Conversion Price
in effect immediately prior to such Transaction. The provisions of this
paragraph (e) shall similarly apply to successive Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on the Common Shares (other than in cash); or
(ii) the Corporation shall authorize the granting to the
holders of the Common Shares of rights, options or warrants to subscribe
for or purchase any shares of any class of equity securities of the
Corporation or any other rights or warrants (other than Rights to which the
second paragraph of subparagraph (d)(iii) of this Section 7 applies); or
(iii) there shall be any reclassification of the Common
Shares (other than an event to which subparagraph (d) (i) of this Section 7
applies) or any consolidation or merger to which the Corporation is a party
and for which approval of any shareholders of the Corporation is required,
or a statutory share exchange involving the conversion or exchange of
Common Shares into securities or other property, or a self tender offer by
the Corporation for all or substantially all of its outstanding Common
Shares, or the sale or transfer of all or substantially all of the assets
of the Corporation as an entirety and for which approval of any
shareholders of the Corporation is required; or
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation,
then the Corporation shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of the Series A Preferred Shares at
their addresses as shown on the stock records of the Corporation, as
promptly as possible, but at least 15 days prior to the applicable date
hereinafter specified, a notice stating (A) the date on which a record is
to be taken for the purpose of such dividend, distribution or rights,
options or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Shares of record to be entitled to such
dividend, distribution or rights, options or warrants are to be determined
or (B) the date on which such reclassification, consolidation, merger,
statutory share exchange, sale, transfer, liquidation, dissolution or
winding up is expected to become effective, and the date as of which it is
expected that holders of Common Shares of record shall be entitled to
exchange their Common Shares for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, statutory
share exchange, sale, transfer, liquidation, dissolution or winding up.
Failure to give or receive such notice or any defect therein shall not
affect the legality or validity of the proceedings described in this
Section 7.
(g) Whenever the Conversion Price is adjusted as herein
provided, the Corporation shall promptly file with the Transfer Agent an
officer's certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment absent manifest error. Promptly after
delivery of such certificate, the Corporation shall prepare a notice of
such adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the effective date such adjustment becomes effective
and shall mail such notice of such adjustment of the Conversion Price to
the holder of each Series A Preferred Share at such holder's last address
as shown on the stock records of the Corporation.
(h) In any case in which paragraph (d) of this Section 7
provides that an adjustment shall become effective on the day next
following the record date for an event, the Corporation may defer until the
occurrence of such event (A) issuing to the holder of any Series A
Preferred Share converted after such record date and before the occurrence
of such event the additional Common Shares issuable upon such conversion by
reason of the adjustment required by such event over and above the Common
Shares issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount of cash in lieu of any
fraction pursuant to paragraph (c) of this Section 7.
(i) There shall be no adjustment of the Conversion Price in case
of the issuance of any equity securities of the Corporation in a
reorganization, acquisition or other similar transaction except as
specifically set forth in this Section 7. If any action or transaction
would require adjustment of the Conversion Price pursuant to more than one
paragraph of this Section 7, only one adjustment shall be made, and such
adjustment shall be the amount of adjustment that has the highest absolute
value.
(j) If the Corporation shall take any action affecting the
Common Shares, other than action described in this Section 7, that in the
opinion of the Board of Directors would materially adversely affect the
conversion rights of the holders of the Series A Preferred Shares, the
Conversion Price for the Series A Preferred Shares shall be adjusted, to
the extent permitted by law, in such manner, if any, and at such time, as
the Board of Directors, in its sole discretion, determines to be equitable
in the circumstances.
(k) The Corporation covenants that it will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Shares, for the purpose of effecting
conversion of the Series A Preferred Shares, the full number of Common
Shares deliverable upon the conversion of all outstanding Series A
Preferred Shares not theretofore converted. For purposes of this paragraph
(k), the number of Common Shares that shall be deliverable upon the
conversion of all outstanding shares of Series A Preferred Shares shall be
computed as if at the time of computation all such outstanding shares were
held by a single holder.
The Corporation further covenants that any Common Shares issued
upon conversion of the Series A Preferred Shares shall be validly issued,
fully paid and non-assessable. Before taking any action that would cause
an adjustment reducing the Conversion Price below the then-par value of the
Common Shares deliverable upon conversion of the Series A Preferred Shares,
the Corporation shall take any corporate action that, in the opinion of its
counsel, may be necessary in order that the Corporation may validly and
legally issue fully paid and non-assessable Common Shares at such adjusted
Conversion Price.
The Corporation shall list the Common Shares required to be
delivered upon conversion of the Series A Preferred Shares, prior to such
delivery, upon each national securities exchange, if any, upon which the
outstanding Common Shares are listed at the time of such delivery.
Prior to the delivery of any securities that the Corporation
shall be obligated to deliver upon conversion of the Series A Preferred
Shares, the Corporation shall comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with,
or any approval of or consent to the delivery thereof, by any governmental
authority.
(l) The Corporation shall pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery
of Common Shares or other securities or property on conversion of the
Series A Preferred Shares pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issue or delivery of any Common
Shares or other securities or property in a name other than that of the
record holder of the Series A Preferred Shares to be converted, and no such
issue or delivery shall be made unless and until the Person requesting such
issue or delivery has paid to the Corporation the amount of any such tax or
established, to the reasonable satisfaction of the Corporation, that such
tax has been paid.
Section 8. Permissible Distributions. In determining whether a
distribution (other than upon liquidation, dissolution or winding up),
whether by dividend, or upon redemption or other acquisition of shares or
otherwise, is permitted under Maryland law, amounts that would be needed,
if the Corporation were to be dissolved at the time of the distribution, to
satisfy the preferential rights upon dissolution of holders of shares of
any class or series whose preferential rights upon dissolution are superior
or prior to those receiving the distribution shall not be added to the
Corporation's total liabilities.
Section 9. Ranking.
(a) No class or series of shares of the Corporation shall be
deemed to rank in preference or priority to the Series A Preferred Shares,
as to the payment of dividends or as to distribution of assets upon
liquidation, dissolution or winding up;
(b) Any class or series of shares of the Corporation shall be
deemed to rank:
(i) on a parity with the Series A Preferred Shares, as to
the payment of dividends and as to the distribution of assets upon
liquidation, dissolution or winding up, whether or not the dividend rates,
dividend payment dates or redemption or liquidation prices per share
thereof be different from those of the Series A Preferred Shares, if the
holders of such class of stock or series and the Series A Preferred Shares
shall be entitled to the receipt of dividends and of amounts distributable
upon liquidation, dissolution or winding up in proportion to their
respective amounts of accrued and unpaid dividends per share or liquidation
preferences, without preference or priority one over the other ("Parity
Shares"); and
(ii) junior to the Series A Preferred Shares, as to the
payment of dividends or as to the distribution of assets upon liquidation,
dissolution or winding up, if such stock or series shall be Common Shares
or if the holders of Series A Preferred Shares shall be entitled to receipt
of dividends or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the holders of
shares of such stock or series, and such stock or series shall not in
either case rank prior to the Series A Preferred Shares.
Section 10. Voting.
(a) Other than as required by law (except to the extent that
applicable law permits the charter to provide otherwise) or paragraph (b)
of this Section 10, the Series A Preferred Shares shall not have any voting
rights or powers, and the consent of the holders thereof shall not be
required for the taking of any corporate action.
(b) In addition, but only following the Trigger Date, whenever,
at any time or times, dividends payable on the shares of Series A Preferred
Stock at the time outstanding shall be cumulatively in arrears for six
consecutive Dividend Periods, the holders of all shares of Series A
Preferred Stock and any shares of Parity Shares upon which like voting
rights have been conferred and are exercisable (the Series A Preferred
Stock and any such Parity Shares, collectively for purposes of this Section
10, the "Defaulted Preferred Stock") shall be entitled to elect two
directors of the Corporation at the Corporation's next annual meeting of
stockholders, and at each subsequent annual meeting of stockholders;
provided, however, the holders of shares of Defaulted Preferred Stock shall
be entitled to exercise their voting rights at a special meeting of the
holders of shares of Defaulted Preferred Stock as set forth in paragraphs
(c) and (d) of this Section 10. At elections for such directors, each
holder of Series A Preferred Stock shall be entitled to one vote for each
share held (the holders of shares of any other series of Defaulted
Preferred Stock ranking on such a parity being entitled to such number of
votes, if any, for each share of stock held as may be granted to them).
Upon the vesting of such right of the holders of Defaulted Preferred Stock,
the maximum authorized number of members of the Board of Directors shall
automatically be increased by two, and the vacancies so created shall be
filled by vote of the holders of outstanding Defaulted Preferred Stock as
hereinafter set forth. The right of holders of Defaulted Preferred Stock,
voting separately as a class without regard to series, to elect members of
the Board of Directors as aforesaid shall continue until such time as all
dividends accumulated and unpaid on the Series A Preferred Stock shall have
been paid or declared and funds set aside in full, at which time such right
shall terminate, except as herein expressly provided, subject to revesting
in the event of each and every subsequent default of the character above
mentioned.
(c) Whenever such voting right shall have vested, such right may
be exercised initially either at a special meeting of the holders of shares
of Defaulted Preferred Stock called as hereinafter provided, or at any
annual meeting of stockholders held for the purpose of electing directors,
and thereafter at such meeting or by the written consent of such holders
pursuant to Section 2-505 of the Maryland General Corporation Law.
(d) At any time when such voting right shall have vested in the
holders of shares of Defaulted Preferred Stock entitled to vote thereon,
and if such right shall not already have been initially exercised, an
officer of the Corporation shall, upon the written request of the holders
of record of 25% of shares of such Defaulted Preferred Stock then
outstanding, addressed to the Secretary of the Corporation, call a special
meeting of holders of shares of such Defaulted Preferred Stock. Such
meeting shall be held at the earliest practicable date upon the notice
required for special meetings of stockholders at the principal executive
office of the Corporation or at such other place as may be designated by
the Secretary of the Corporation. If such meeting shall not be called by
the proper officers of the Corporation within 30 days after the personal
service of such written request upon the Secretary of the Corporation, or
within 30 days after mailing the same within the United States, by
registered mail, addressed to the Secretary of the Corporation at its
principal office (such mailing to be evidenced by the registry receipt
issued by the postal authorities), then holders of record of 25% of the
shares of Defaulted Preferred Stock then outstanding may designate in
writing any person to call such meeting at the expense of the Corporation,
and such meeting may be called by such person so designated upon the notice
required for special meetings of stockholders and shall be held at the same
place as is elsewhere provided in this paragraph. Any holder of shares of
Defaulted Preferred Stock then outstanding that would be entitled to vote
at such meeting shall have access to the stock books of the Corporation's
Transfer Agent for the purpose of causing a meeting of stockholders to be
called pursuant to the provisions of this paragraph. Notwithstanding the
provisions of this paragraph, however, no such special meeting shall be
called or held during a period within 45 days immediately preceding the
date fixed for the next annual meeting of stockholders.
(e) Subject to the provisions hereof, the directors elected
pursuant to this section shall serve until the next annual meeting of
stockholders and until their respective successors shall be elected and
qualified. Subject to applicable law, any director elected by the holders
of Defaulted Preferred Stock may be removed by, and shall not be removed
otherwise than by, the vote of the holders of a majority of the outstanding
shares of the Defaulted Preferred Stock entitled to vote in such election
of directors, voting as a separate class, without regard to series, at a
meeting called for such purpose or by written consent pursuant to Section
2-505 of the MGCL and the Charter and By-laws of the Corporation. If the
position of any director elected by the holders of Defaulted Preferred
Stock, voting as a class, without regard to series, becomes vacant by
reason of death, resignation, retirement, disqualification or removal or
otherwise, the remaining director elected by the holders of Defaulted
Preferred Stock, voting as a class, without regard to series, may choose a
successor who shall serve for the unexpired term in respect of which such
vacancy occurred. Upon any termination of the right of the holders of
Defaulted Preferred Stock to vote for directors as herein provided, the
term of office of all directors then in office elected by the holders of
Defaulted Preferred Stock, voting as a class, without regard to series,
shall terminate immediately. Whenever the terms of the directors elected
by the holders of Defaulted Preferred Stock, voting as a class, without
respect to series, shall so terminate and the special voting powers vested
in the holders of Defaulted Preferred Stock shall have expired, the number
of directors shall be such number as provided for in the Corporation's By-
laws irrespective of any increase made pursuant to the provisions of this
Section 10.
Section 11. Record Holders. The Corporation and the Transfer
Agent may deem and treat the record holder of any Series A Preferred Shares
as the true and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any notice to the
contrary.
Section 12. Restrictions on Ownership and Transfer. The Series A
Preferred Shares constitute Preferred Stock, and Preferred Stock
constitutes Equity Stock of the Corporation. Therefore, the Series A
Preferred Shares, being Equity Stock, are governed by and issued subject to
all the limitations, terms and conditions of the Charter applicable to
Equity Stock generally, including but not limited to the terms and
conditions (including exceptions and exemptions) of Articles VI and VII of
the Charter applicable to Equity Stock. The foregoing sentence shall not
be construed to limit the applicability to the Series A Preferred Shares of
any other term or provision of the Charter.
Section 13. Legend. Each certificate shall bear substantially
the following legend:
"The Corporation will furnish to any stockholder, on request
and without charge, a full statement of the information
required by Section 2-211(b) of the Corporations and
Associations Article of the Annotated Code of Maryland with
respect to the designations and any preferences, conversion
and other rights, voting powers, restrictions, limitations
as to dividends and other distributions, qualifications, and
terms and conditions of redemption of the shares of each
class of stock which the Corporation has authority to issue
and, if the Corporation is authorized to issue any preferred
or special class in series, (i) the differences in the
relative rights and preferences between the shares of each
series to the extent they have been set, and (ii) the
authority of the Board of Directors to set such rights and
preferences of subsequent series. The following summary
does not purport to be complete and is subject to and
qualified in its entirety by reference to the charter of the
Corporation (the "Charter"), a copy of which will be sent
without charge to each shareholder who so requests. Such
request must be made to the Secretary of the Corporation at
its principal office or to the Transfer Agent. All
capitalized terms in this legend have the meanings ascribed
to them in the Charter.
"The shares represented by this certificate are subject to
restrictions on transfer for the purpose of the
Corporation's maintenance of its status as a real estate
investment trust under the Internal Revenue Code of 1986, as
amended (the "Code"). No Person may (i) Beneficially Own or
Constructively Own shares of Equity Stock in excess of 9.8%
of the number or value of outstanding shares of any class of
Equity Stock (or, in the case of a Look-Through Entity, in
excess of 15% of the number or value of outstanding shares
of any class of Equity Stock), (ii) beneficially own shares
of Equity Stock that would result in the shares of Equity
Stock being beneficially owned by fewer than 100 Persons
(determined without reference to any rules of attribution),
(iii) Beneficially Own shares of Equity Stock that would
result in the Corporation being "closely held" under Section
856 (h) of the Code, or (iv) Constructively Own shares of
Equity Stock that would cause the Corporation to
Constructively Own 9.9% or more of the ownership interests
in a tenant of the Corporation's, the Operating
Partnership's or a Subsidiary's real property, within the
meaning of Section 856 (d) (2) (B) of the Code. Any Person
who attempts to Beneficially Own or Constructively Own
shares of Equity Stock in excess of the above limitations
must immediately notify the Corporation in writing. If the
restrictions above are violated, the shares of Equity Stock
represented hereby will be transferred automatically and by
operation of law to a Trust and shall be designated Shares-
in-Trust."
THIRD: The Shares have been classified and designated by the
Board of Directors under the authority contained in the Charter.
FOURTH: These Articles Supplementary have been approved by the
Board of Directors in the manner and by the vote required by law.
FIFTH: Each of the undersigned acknowledges these Articles
Supplementary to be the act of the Corporation and, as to all matters or
facts required to be verified under oath, each of the undersigned
acknowledges that to the best of his knowledge, information and belief,
these matters and facts are true in all material respects and that this
statement is made under the penalties for perjury.
SIXTH: In accordance with Section 1-301(a)(2) of the Maryland
General Corporation Law, the Board of Directors of the Corporation has
authorized, by resolution duly adopted at a meeting of the Board of
Directors on December 7, 1998, Lester S. Garfinkel, Chief Financial Officer
of the Corporation, to witness and attest Articles Supplementary.
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be executed under seal in its name and on its behalf by
its President and (in accordance with paragraph FIFTH herein) Lester S.
Garfinkel, Chief Financial Officer of the Corporation, to attest these
Articles Supplementary on this 8th day of December, 1998.
Tower Realty Trust, Inc.
BY: /s/ Robert L. Cox (SEAL)
-------------------------------
Robert L. Cox
President
ATTEST:
/s/ Lester S. Garfinkel
---------------------------
Lester S. Garfinkel
Chief Financial Officer
Number *0* Shares *0*
THIS CERTIFICATE IS TRANSFERABLE SEE PAGE 3 FOR
IN THE CITY OF NEW YORK, N.Y. IMPORTANT INFORMATION
TOWER REALTY TRUST, INC.
a Corporation
Formed under the Laws of the State of Maryland
THIS CERTIFIES THAT **Specimen**
is the owner of **Zero (0)**
fully paid and non-assessable Series A Convertible Preferred Stock,
liquidation preference $18.44 per share, $.01 par value per share, of
TOWER REALTY TRUST, INC.
(the "Corporation"), transferable on the books of the Corporation by the
holder hereof in person or by duly authorized attorney, upon surrender of
this Certificate properly endorsed. This Certificate and the shares
represented hereby are issued and shall be held subject to all of the
provisions of the charter of the Corporation (the "Charter") and any
amendments thereto. This Certificate is not valid until countersigned and
registered by the Transfer Agent and Registrar.
THE SECURITY REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REQUIREMENTS
OF OR EXEMPTIONS UNDER SUCH ACT AND LAWS AND IN COMPLIANCE WITH
TRANSFER RESTRICTIONS CONTAINED IN THE MERGER AGREEMENT, DATED AS
OF DECEMBER 8, 1998, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE COMPANY.
IN WITNESS WHEREOF, the Corporation has caused this certificate
to be executed on its behalf by its duly authorized officers.
DATED: ________________
Countersigned and Registered
American Stock Transfer & Trust Company
40 Wall Street
New York, NY 10005
Transfer Agent By: ________________________________
and Registrar Chief Executive Officer
By: _______________________ By: ________________________________
Authorized Signature Chief Financial Officer
IMPORTANT NOTICE
The Corporation will furnish to any stockholder, on request and
without charge, a full statement of the information required by Section 2-
211(b) of the Corporations and Associations Article of the Annotated Code
of Maryland with respect to the designations and any preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications, and terms and conditions
of redemption of the shares of each class of stock which the Corporation
has authority to issue and, if the Corporation is authorized to issue any
preferred or special class in series, (i) the differences in the relative
rights and preferences between the shares of each series to the extent they
have been set, and (ii) the authority of the Board of Directors to set such
rights and preferences of subsequent series. The following summary does
not purport to be complete and is subject to and qualified in its entirety
by reference to the charter of the Corporation (the "Charter"), a copy of
which will be sent without charge to each shareholder who so requests.
Such request must be made to the Secretary of the Corporation at its
principal office or to the Transfer Agent. All capitalized terms in this
legend have the meanings ascribed to them in the Charter.
The shares represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's maintenance
of its status as a real estate investment trust under the Internal Revenue
Code of 1986, as amended (the "Code"). No Person may (i) Beneficially Own
or Constructively Own shares of Equity Stock in excess of 9.8% of the
number or value of outstanding shares of any class of Equity Stock (or, in
the case of a Look-Through Entity, in excess of 15% of the number or value
of outstanding shares of any class of Equity Stock), (ii) beneficially own
shares of Equity Stock that would result in the shares of Equity Stock
being beneficially owned by fewer than 100 Persons (determined without
reference to any rules of attribution), (iii) Beneficially Own shares of
Equity Stock that would result in the Corporation being "closely held"
under Section 856 (h) of the Code, or (iv) Constructively Own shares of
Equity Stock that would cause the Corporation to Constructively Own 9.9% or
more of the ownership interests in a tenant of the Corporation's, the
Operating Partnership's or a Subsidiary's real property, within the meaning
of Section 856 (d) (2) (B) of the Code. Any Person who attempts to
Beneficially Own or Constructively Own shares of Equity Stock in excess of
the above limitations must immediately notify the Corporation in writing.
If the restrictions above are violated, the shares of Equity Stock
represented hereby will be transferred automatically and by operation of
law to a Trust and shall be designated Shares-in-Trust.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR
DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE
OF A REPLACEMENT CERTIFICATE.
The following abbreviations, when used in the inscription on the
face of this Certificate, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT _______ Custodian _______
(Cust) (Minor)
Under Uniform Gifts to Minors Act of
____________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, _______________________ HEREBY SELLS, ASSIGNS AND
TRANSFERS UNTO
__________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE)
__________________________________________________________________________
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE)
______________________ (__________________) of the shares of Series A
Convertible Preferred Stock represented by the within Certificate, and do
hereby irrevocably constitute and appoint __________________ Attorney to
transfer the said shares on the books of the within named Corporation with
full power of substitution in the premises.
Dated: ___________ By: ______________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THIS CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
EXHIBIT 10.10
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
December 8, 1998, by and among TOWER REALTY TRUST, INC., a Maryland
corporation (the "Company"), METROPOLITAN PARTNERS LLC, a Delaware limited
liability company ("MET") and, only as to Section 2.9(b), RECKSON
ASSOCIATES REALTY CORP., a Maryland corporation ("Reckson").
WHEREAS, on the date hereof, the Company and MET will enter into
a Stock Purchase Agreement (the "Purchase Agreement").
WHEREAS, it is a condition precedent to the entering into of the
Purchase Agreement that the Company and MET enter into this Agreement.
NOW THEREFORE, the parties hereto desire to provide certain
registration rights with respect to the shares of Series A Preferred Stock
(as such term is defined herein) and the shares of Common Stock (as such
term is defined herein) issuable upon conversion of the Series A Preferred
Stock.
Accordingly, the parties hereto agree as follows:
1 Certain Definitions.
As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
1.1 "Affiliate": shall mean (i) with respect to any Person, any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person or (ii) with respect to any individual, shall also mean
the spouse, parent, grandparent, uncle, aunt, father-in-law,
mother-in-law, sibling, child, step-child, grandchild, niece, or
nephew of such Person, or the spouse thereof, or any trust,
charitable foundation or similar entity of which there are no
principal beneficiaries other than such Person and/or one or more
of such relatives or any undesignated charity.
1.2 "Business Day": shall mean any day on which commercial banks in
the City of New York and the State of New York and the New York
Stock Exchange, Inc. are generally open for business.
1.3 "Commission": shall mean the Securities and Exchange Commission.
1.4 "Common Stock": shall mean the common stock, par value $.01 per
share, of the Company.
1.5 "Continuously Effective": with respect to either Demand
Registrations (as hereafter defined) or piggyback registrations,
shall mean that such Registrations shall not cease to be
effective and available for transfers of securities registered
thereunder for longer than three (3) Business Days during the
period specified in the relevant provisions of this Agreement.
1.6 "Conversion Shares": shall mean the shares of Common Stock
issuable upon the conversion of the Series A Preferred Stock.
1.7 "Exchange Act": shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder.
1.8 "Holder" or "Holders": shall mean MET and any party who shall
hereafter acquire and hold Registrable Securities and who, unless
it is Reckson or an affiliate of Reckson, is an assignee of the
rights of MET under this Agreement in accordance with Section
4.5.
1.9 "Merger": shall mean the merger of the Company with and into MET
(with MET being the surviving entity) pursuant to the Merger
Agreement.
1.10 "Merger Agreement": shall mean the merger agreement, of even
date herewith, by and among the Company, MET and Reckson.
1.11 "Person": shall mean any natural person, corporation,
partnership, firm, association, trust, government, governmental
agency or other entity, whether acting in an individual,
fiduciary or other capacity.
1.12 "Registrable Securities": shall mean any (i) shares of Series A
Preferred Stock issued to MET pursuant to the Purchase Agreement
and (ii) any Conversion Shares issued upon conversion of any such
shares of Series A Preferred Stock (and any shares issued upon
any subdivision, combination or reclassification of such shares
or any stock dividend in respect of any of the foregoing shares)
held by MET or by any transferee of such shares who agrees to be
bound by the terms of this Agreement in accordance with Section
4.6(a), except for any such transferee that acquires Series A
Preferred Stock in a transfer that results in a breach of Section
3.3 of the Purchase Agreement. As to any particular Registrable
Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the
sale of such securities shall have been declared effective under
the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, or (ii) such
securities shall have been sold (other than in a privately
negotiated sale) pursuant to Rule 144 (or any successor
provision) under the Securities Act.
1.13 "Securities Act": shall mean the Securities Act of 1933, as
amended, and the rules and regulations thereunder.
1.14 "Series A Preferred Stock": shall mean the Series A Preferred
Stock of the Company, par value $.01 per share, having the
preferences, limitations and relative rights as set forth in the
Supplementary Articles of Incorporation.
1.15 "Supplementary Articles of Incorporation": shall mean the
Supplementary Articles of Incorporation of the Company in the
form attached hereto as Exhibit A, as amended from time to time.
2 Registration Rights.
2.1 Demand Registrations.
(a) (i) Subject to Sections 2.1(b), 2.1(e) and 2.3 below, at
any time and from time to time after the termination of the Merger
Agreement, each Holder shall have the right to require the Company to use
its reasonable best efforts to file a registration statement under the
Securities Act covering all or any part of their respective Registrable
Securities, by delivering a written request therefor to the Company
specifying the number of Registrable Securities to be included in such
registration by such Holder and the intended method of distribution
thereof. All requests pursuant to this Section 2.1(a)(i) are referred to
herein as "Demand Registration Requests," and the registrations requested
are referred to herein as "Demand Registrations." As promptly as
practicable, but no later than ten days after receipt of a Demand
Registration Request, the Company shall give written notice of such Demand
Registration Request to all Holders of record of Registrable Securities.
(ii) Company, subject to Sections 2.3 and 2.6, shall include
in a Demand Registration (x) the Registrable Securities of the Holder(s)
which requested such registration and (y) the Registrable Securities of any
Holder which shall have made a written request to the Company for
registration thereof (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Holder(s)) within
30 days after the receipt by such Holder of written notice (or, 15 days if,
at the request of the Holder(s) which requested such registration, the
Company states in such written notice or gives telephonic notice to all
Holders, with written confirmation to follow promptly thereafter, that such
registration will be on Form S-3) from the Company of a Demand Registration
Request.
(iii) The Company shall, as promptly as reasonably
practicable following a Demand Registration Request, use its reasonable
best efforts to (x) effect such registration under the Securities Act
(including, without limitation, by means of a shelf registration pursuant
to Rule 415 under the Securities Act if so requested and if the Company is
then eligible to use such a registration) of the Registrable Securities
which the Company has been so requested to register, for distribution in
accordance with such intended method of distribution, and (y) if requested
by the Holder(s) making such demand for registration, obtain acceleration
of the effective date of the registration statement relating to such
registration.
(b) The Demand Registration rights granted to Holders in
Section 2.1(a) are subject to the following limitation: (i) each
registration in respect of a Demand Registration Request must include at
least 10% of the Registrable Securities outstanding as of the date hereof
(provided that the limitation set forth in this clause (i) shall not be in
effect at any time the Holders' Registrable Securities would otherwise be
able to be sold under Rule 144 under the Securities Act but for the
Company's failure to comply with the information requirements thereunder,
unless at such time, the Company's outside counsel (which shall be
reasonably acceptable to the Holders requesting such registration) delivers
a written opinion of counsel to such Holders to the effect that such
Registrable Securities may be publicly offered and sold without
registration under the Securities Act); (ii) the Company shall not be
required to cause more than one additional registration pursuant to
Section 2.1(a)(i) to be declared effective within a period of 180 days
after the effective date of any registration statement of the Company
effected in connection with a Demand Registration Request; and (iii) if the
Board of Directors of the Company, in its good faith judgment, determines
that any registration of Registrable Securities should not be made or
continued because in the good faith judgment of the Board of Directors it
presents a reasonable risk that it would materially interfere with, or
require disclosure of, any material financing, acquisition, corporate
reorganization or merger or other transaction involving the Company or any
of its subsidiaries (a "Valid Business Reason"), the Company may postpone
filing a registration statement relating to a Demand Registration Request
(and may postpone filing any amendment to, or supplement of, or seeking
acceleration of, any registration statement previously filed) until such
Valid Business Reason no longer exists, but in no event for more than 120
days, and, in case a registration statement has been filed relating to a
Demand Registration Request if the Valid Business Reason has not resulted
from actions taken by the Company, the Company may cause such registration
statement to be withdrawn and its effectiveness terminated or may postpone
amending or supplementing such registration statement; and the Company
shall give written notice of its determination to postpone or withdraw a
registration statement and of the fact that the Valid Business Reason for
such postponement or withdrawal no longer exists, in each case, promptly
after the occurrence thereof. Notwithstanding anything to the contrary
herein, during any 365-day period, the Company may not suspend the
availability of registration rights hereunder (whether through postponement
of filing a registration statement, withdrawal of a filed registration
statement or the suspension of an effective registration statement)
relating to a Demand Registration Request because of a Valid Business
Reason more than four times or for more than an aggregate of 180 days,
subject to reduction as provided in Section 2.7(a).
Each Holder of Registrable Securities agrees that, upon receipt
of any notice from the Company that the Company has determined to withdraw
any registration statement pursuant to clause (iii) above, such Holder will
discontinue its disposition of Registrable Securities pursuant to such
registration statement and, if so directed by the Company, will deliver to
the Company (at the Company's expense) all copies, other than permanent
file copies, then in such Holder's possession of the prospectus covering
such Registrable Securities that was in effect at the time of receipt of
such notice. If the Company shall have withdrawn or prematurely terminated
a registration statement filed under Section 2.1(a)(i) (whether pursuant to
clause (iii) above or as a result of any stop order, injunction or other
order or requirement of the Commission or any other governmental agency or
court), the Company shall not be considered to have effected an effective
registration for the purposes of this Agreement until the Company shall
have filed a new registration statement covering the Registrable Securities
covered by the withdrawn registration statement and such registration
statement shall have been declared effective and shall not have been
withdrawn. If the Company shall give any notice of withdrawal or
postponement of a registration statement, the Company shall, at such time
as the Valid Business Reason that caused such withdrawal or postponement no
longer exists (but in no event later than 120 days after the date of the
postponement), use its reasonable best efforts to effect the registration
under the Securities Act of the Registrable Securities covered by the
withdrawn or postponed registration statement in accordance with this
Section 2.1 (unless the Holder(s) making the Demand Registration Request
shall have withdrawn such request, in which case the Company shall not be
considered to have effected an effective registration for the purposes of
this Agreement).
(c) The Company, subject to Sections 2.3 and 2.6, may elect to
include in any registration statement and offering made pursuant to
Section 2.1(a)(i), (i) authorized but unissued shares of Common Stock or
shares of Common Stock held by the Company as treasury shares and (ii) any
other shares of Common Stock which are requested to be included in such
registration pursuant to the exercise of piggyback registration rights
granted by the Company ("Additional Piggyback Rights"); provided, however,
that such inclusion shall be permitted only to the extent that it is
pursuant to and subject to the terms of the underwriting agreement or
arrangements, if any, entered into by the Holder(s) making such Demand
Registration Request. With respect to any Demand Registration, except as
set forth in the preceding sentence no securities other than the
Registrable Securities of the Holder(s) permitted to be included in such
registration pursuant to Section 2.1(a)(ii) shall be included among the
securities covered by such registration.
(d) The managing underwriter for any Demand Registration shall
be either Merrill Lynch & Co. or Salomon Smith Barney or any successor to
either (such choice to be at the option of the Holder) or such other
underwriter(s) as the Holders and the Company mutually agree in good faith.
(e) The Company shall be obligated to effect not more than
three (3) Demand Registrations, subject to the provisions of Section 2.1
hereof. For purposes of the preceding sentence, a Demand Registration
shall not be deemed to have been effected (i) unless a registration
statement with respect thereto has become effective, (ii) if after such
registration statement has become effective, such registration statement or
the related offer, sale or distribution of Registrable Securities
thereunder is interfered with by any stop order, injunction or other order
or requirement of the Commission or other governmental entity for any
reason not attributable to MET or any other Holder and such interference is
not thereafter eliminated, or (iii) if the conditions to closing specified
in the underwriting agreement entered into in connection with such Demand
Registration are not satisfied or waived, other than by reason of a failure
on the part of MET or any Holder. If the Company shall have complied with
its obligations under this Agreement, a right to a Demand Registration
pursuant to this Section 2.1 shall be deemed to have been satisfied upon
the earlier of (x) the date as of which all of the Registrable Securities
included therein shall have been distributed pursuant to the registration
statement related thereto, and (y) the date as of which such Demand
Registration shall have been Continuously Effective for the applicable
period specified in Section 2.4(b) hereof following the effectiveness of
such registration statement, provided no stop order or similar order, or
proceedings for such an order, is thereafter entered or initiated.
Furthermore, once the Company has filed and caused to be effective a shelf
registration statement in connection with its obligations under section 2.1
hereof, each separate underwritten offering effected pursuant to such shelf
registration statement which satisfies the conditions of the second
sentence of this subsection 2.1(e) (other than the first such underwritten
offering) shall constitute an additional Demand Registration; provided that
such shelf registration statement shall constitute a Demand Registration.
(f) The Holders shall use reasonable best efforts to cause any
distribution of Registrable Securities pursuant to a Demand Registration to
be public and reasonably broad, so long as such breadth does not adversely
impact the price obtained for such Registrable Securities.
2.2 Piggyback Registrations.
(a) If, at any time and from time to time after the
termination of the Merger Agreement, the Company proposes or is required to
register any of its common equity securities under the Securities Act
(other than pursuant to (i) registrations on such form or similar form(s)
solely for registration of securities in connection with an employee
benefit or option plan or dividend reinvestment plan or a merger or
consolidation or (ii) a Demand Registration under Section 2.1) on a
registration statement on Form S-1, Form S-2 or Form S-3 (or an equivalent
general registration form then in effect), whether or not for its own
account, the Company shall give prompt written notice of its intention to
do so to each of the Holders of record of Registrable Securities. Upon the
written request of any Holder, made within 20 days following the receipt of
any such written notice (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof), the Company shall, subject to
Sections 2.2(b), 2.3 and 2.6 hereof, use its reasonable best efforts to
cause all such Registrable Securities, the Holders of which have so
requested the registration thereof, to be registered under the Securities
Act (with the securities which the Company at the time proposes to
register) to permit the sale or other disposition by the Holders (in
accordance with the intended method of distribution thereof) of the
Registrable Securities to be so registered. Notwithstanding anything to
the contrary herein, with respect to any shelf registration statement, the
only piggyback registrations that can occur pursuant to any shelf
registration statement(s) filed by the Company, whether with respect to the
sale of securities by the Company or by a holder or holders of Company
securities, are piggyback registrations on underwritten offerings occurring
pursuant to such shelf registration statement(s); provided that no Holder
shall be entitled to a piggyback registration on any shelf registration
statement filed with respect to any equity securities of the Company where
the proposed methods of distribution under such shelf registration
statement do not include underwritten offerings (including, to the extent
it does not provide for underwritten offerings, any registration statement
filed with respect to Common Stock issuable in exchange for limited
partnership interests in Tower Realty Operating Partnership, L.P. ("Company
OP Units")). No registration effected under this Section 2.2(a) shall
relieve the Company of its obligations to effect Demand Registrations.
There is no limitation on the number of such piggyback registrations under
this Section 2.2 which the Company is obligated to effect. Notwithstanding
the foregoing, no Holder (other than Reckson or a wholly owned subsidiary
of Reckson) shall be entitled to piggyback registration rights pursuant to
this Section 2.1 unless the number of Registrable Securities it proposes
and seeks to have included in a piggyback registration exceeds (assuming
conversion if such shares were Series A Preferred Stock) 1% of the number
of outstanding shares of Common Stock at such time.
(b) If, at any time after giving written notice of its
intention to register any equity securities and prior to the effective date
of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of such equity securities, the Company may, at its election,
give written notice of such determination to all Holders of record of
Registrable Securities and (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such abandoned registration, without
prejudice, however, to the rights of Holders under Section 2.1, and (ii) in
the case of a determination to delay such registration of its equity
securities, shall be permitted to delay the registration of such
Registrable Securities for the same period as the delay in registering such
other equity securities.
(c) Any Holder shall have the right to withdraw its request
for inclusion of its Registrable Securities in any registration statement
pursuant to this Section 2.2 by giving written notice to the Company of its
request to withdraw; provided, however, that (i) such request must be made
in writing prior to the earlier of the execution of the underwriting
agreement or the execution of the custody agreement with respect to such
registration and (ii) such withdrawal shall be irrevocable and, after
making such withdrawal, a Holder shall no longer have any right to include
Registrable Securities in the registration as to which such withdrawal was
made.
2.3 Allocation of Securities Included in Registration Statement.
(a) If any requested registration pursuant to Section 2.1
involves an underwritten offering and an underwriter of such offering shall
advise the Company that, in its view, the number of securities requested to
be included in such registration (including those securities requested by
the Company to be included in such registration) exceeds the largest number
(the "Section 2.1 Sale Number") that can be sold in an orderly manner in
such offering within a price range acceptable to the Holders of a majority
of the Registrable Securities proposed to be registered, the Company shall
include in such registration:
(i) all Registrable Securities requested to be included in
such registration by Holders of Registrable Securities; provided, however,
that, if the number of such Registrable Securities exceeds the Section 2.1
Sale Number, the number of such Registrable Securities (not to exceed the
Section 2.1 Sale Number) to be included in such registration shall be
allocated on a pro rata basis among all Holders requesting that Registrable
Securities be included in such registration, based on the number of
Registrable Securities then owned by each Holder requesting inclusion in
relation to the number of Registrable Securities owned by all Holders
requesting inclusion;
(ii) to the extent that the number of Registrable Securities
to be included by all Holders is less than the Section 2.1 Sale Number,
securities that the Company proposes to register; and
(iii) to the extent that the number of Registrable Securities
to be included by all Holders and the number of securities to be included
by the Company is less than the Section 2.1 Sale Number, any other
securities that the holders thereof propose to register pursuant to the
exercise of Additional Piggyback Rights.
If, as a result of the proration provisions of this Section
2.3(a), any Holder shall not be entitled to include all Registrable
Securities in a registration that such Holder has requested be included,
such Holder may elect to withdraw his request to include Registrable
Securities in such registration or may reduce the number requested to be
included; provided, however, that (x) such request must be made in writing
prior to the earlier of the execution of the underwriting agreement or the
execution of the custody agreement with respect to such registration and
(y) such withdrawal shall be irrevocable and, after making such withdrawal,
a Holder shall no longer have any right to include Registrable Securities
in the registration as to which such withdrawal was made.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering and an underwriter shall advise the Company that, in
its view, the number of securities requested to be included in such
registration exceeds the number (the "Section 2.2 Sale Number") that can be
sold in an orderly manner in such registration within a price range
acceptable to the Company, the Company shall include in such registration:
(i) all Common Stock or securities convertible into, or
exchangeable or exercisable for, Common Stock that the Company proposes to
register for its own account (the "Company Securities");
(ii) all Common Stock or securities convertible into, or
exchangeable or exercisable for, Common Stock held by any Persons having
piggyback rights which on the date hereof grant such persons a priority
over other Persons that have piggyback rights granted by the Company and
all Common Stock or securities held by any Persons that if not provided
with a priority over other Persons that have piggyback rights granted by
the Company would place the Company in breach of any contractual
obligations that it may have existing on the date hereof (the "Priority
Piggyback Securities"); and
(iii) (x) to the extent that the number of Company Securities
and Priority Piggyback Securities is less than the Section 2.2 Sale Number,
all Registrable Securities requested to be included by all Holders;
provided, however, that, if the number of such Registrable Securities
exceeds the Section 2.2 Sale Number less the number of Company Securities
and Priority Piggyback Securities, then the number of such Registrable
Securities included in such registration shall be allocated on a pro rata
basis among all Holders requesting that Registrable Securities be included
in such registration, based on the number of Registrable Securities owned
by each Holder requesting inclusion in relation to the number of
Registrable Securities then owned by all Holders requesting inclusion; and
(iv) to the extent the number of Company Securities plus the
number of Registrable Securities requested to be included pursuant to
clause (ii) or (iii) above by all Holders is less than the Section 2.2 Sale
Number, any other securities that the holders thereof propose to register
pursuant to the exercise of Additional Piggyback Rights.
2.4 Registration Procedures. If and whenever the Company is
required by the provisions of this Agreement to use its reasonable best
efforts to effect or cause the registration of any Registrable Securities
under the Securities Act as provided in this Agreement, the Company shall,
as promptly as reasonably practicable:
(a) prepare and file with the Commission a registration
statement on an appropriate registration form of the Commission for the
disposition of such Registrable Securities in accordance with the intended
method of disposition thereof, which form (i) shall be selected by the
Company and (ii) shall, in the case of a shelf registration, be available
for the sale of the Registrable Securities by the selling Holders thereof
and such registration statement shall comply as to form in all material
respects with the requirements of the applicable form and include all
financial statements required by the Commission to be filed therewith, and
the Company shall use its reasonable best efforts to cause such
registration statement to become and remain effective (provided, however,
that before filing a registration statement or prospectus or any amendments
or supplements thereto, or comparable statements under securities or blue
sky laws of any jurisdiction, the Company will furnish to one counsel for
the Holders participating in the planned offering (selected by the Holders
making the Demand Registration Request, in the case of a registration
pursuant to Section 2.1, and selected by the Holders of a majority of the
Registrable Securities included in such registration, in the case of a
registration pursuant to Section 2.2) and the underwriters, if any, copies
of all such documents proposed to be filed (including all exhibits
thereto), which documents, in the case of a registration pursuant to
Section 2.1 only, will be subject to the reasonable review and reasonable
comment of such counsel, and in the case of a registration pursuant to
Section 2.1 only, the Company shall not file any registration statement or
amendment thereto or any prospectus or supplement thereto to which the
Holders of a majority of the Registrable Securities covered by such
registration statement or the underwriters, if any, shall reasonably object
in writing);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement Continuously Effective for such period (which shall not be
required to exceed 90 days in the case of a registration pursuant to
Section 2.1 or 120 days in the case of a shelf registration pursuant to
Section 2.1 and which shall not have any minimum duration in the case of a
registration pursuant to Section 2.2) as any seller of Registrable
Securities pursuant to such registration statement shall request and to
comply with the provisions of the Securities Act with respect to the sale
or other disposition of all Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(c) furnish, without charge, to each seller of such
Registrable Securities and each underwriter, if any, of the securities
covered by such registration statement such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits), and the prospectus included in such registration
statement (including each preliminary prospectus) in conformity with the
requirements of the Securities Act, and other documents, as such seller and
underwriter may reasonably request in order to facilitate the public sale
or other disposition of the Registrable Securities owned by such seller
(the Company hereby consenting to the use in accordance with all applicable
law of each such registration statement (or amendment or post-effective
amendment thereto) and each such prospectus (or preliminary prospectus or
supplement thereto) by each such seller of Registrable Securities and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such registration statement or
prospectus);
(d) use its reasonable best efforts to register or qualify the
Registrable Securities covered by such registration statement under such
other securities or "blue sky" laws of such jurisdictions as any sellers of
Registrable Securities or any managing underwriter, if any, shall
reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such sellers or underwriter, if
any, to consummate the disposition of the Registrable Securities in such
jurisdictions, except that in no event shall the Company be required to
qualify to do business as a foreign corporation in any jurisdiction where
it would not, but for the requirements of this paragraph (d), be required
to be so qualified, to subject itself to taxation in any such jurisdiction
or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Holder selling Registrable Securities
covered by such registration statement, and each managing underwriter, if
any: (i) when the registration statement, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed and, with respect to
the registration statement or any post-effective amendment, when the same
has become effective; (ii) of any request by the Commission or state
securities authority for amendments or supplements to the registration
statement or the prospectus related thereto or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the registration statement or the initiation of any
proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of
any jurisdiction or the initiation of any proceeding for such purpose;
(v) of the existence of any fact of which the Company becomes aware which
results in the registration statement, the prospectus related thereto or
any document incorporated therein by reference containing an untrue
statement of a material fact or omitting to state a material fact required
to be stated therein or necessary to make any statement therein not
misleading; and (vi) if at any time the representations and warranties
contemplated by Section 3 below cease to be true and correct in all
material respects; and, if the notification relates to an event described
in clause (v), the Company shall promptly prepare and furnish to each such
seller and each underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading;
(f) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as soon
as reasonably practicable after the effective date of the registration
statement (and in any event within 16 months thereafter), an earnings
statement (which need not be audited) covering the period of at least
twelve consecutive months beginning with the first day of the Company's
first calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal securities exchange on
which similar securities issued by the Company are then listed (if any), if
the listing of such Registrable Securities is then permitted under the
rules of such exchange, or (ii) if no similar securities are then so
listed, to use reasonable efforts to either cause all such Registrable
Securities to be listed on a national securities exchange or to secure
designation of all such Registrable Securities as a National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") "national
market system security" within the meaning of Rule 11Aa2-1 of the
Commission or, failing that, secure NASDAQ authorization for such shares;
(h) provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if
applicable, an underwriting agreement) and take such other actions as the
Holders of a majority of the Registrable Securities participating in such
offering shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities, provided that the underwriting
agreement, if any, shall be reasonably satisfactory in form and substance
to the Company. The Holders of the Registrable Securities which are to be
distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, in the case of a registration effected
pursuant to Section 2.1 only, require that the Company make to and for the
benefit of such Holders the representations, warranties and covenants of
the Company which are being made to and for the benefit of such
underwriters and which are of the type customarily provided to
institutional investors in secondary offerings;
(j) use reasonable best efforts to obtain (i) an opinion from
the Company's counsel and a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such matters
as are customarily covered by such opinions and "cold comfort" letters
delivered to underwriters in underwritten public offerings, which opinion
and letter shall be reasonably satisfactory to the underwriter, if any, and
to the Holders of a majority of the Registrable Securities participating in
such offering, and furnish to each Holder participating in the offering and
to each underwriter, if any, a copy of such opinion and letter and (ii) in
the case of a registration pursuant to Section 2.1 only, an opinion and
cold comfort letter of the type described in the foregoing clause (i), such
opinion to be addressed to each participating Holder and each Underwriter
and such comfort letter to be addressed to each Underwriter;
(k) deliver promptly to each Holder participating in the
offering and each underwriter, if any, copies of all correspondence between
the Commission and the Company, its counsel or auditors and all memoranda
relating to discussions with the Commission or its staff with respect to
the registration statement, other than those portions of any such
correspondence and memoranda which contain information subject to attorney-
client privilege with respect to the Company, and, upon receipt of such
confidentiality agreements as the Company may reasonably request, make
reasonably available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter, if
any, participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause all of the Company's officers, directors and
employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement; notwithstanding anything to the contrary contained
in this Agreement, the Company shall not be required to prepare any
financial statements other than its normal quarterly and year-end financial
statements or have any audit performed other than its normal year-end
audit;
(l) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of the registration statement;
(m) use its reasonable best efforts to provide a CUSIP number
for all Registrable Securities, not later than the effective date of the
registration statement;
(n) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into
account the needs of the Company's businesses and the requirements of the
marketing process) in the marketing of Registrable Securities in any
underwritten offering;
(o) promptly prior to the filing of any document which is to
be incorporated by reference into the registration statement or the
prospectus (after the initial filing of such registration statement)
provide copies of such document to counsel for the selling holders of
Registrable Securities and to the managing underwriter, if any, and make
the Company's representatives reasonably available for discussion of such
document and make such changes in such document concerning the selling
holders prior to the filing thereof as counsel for such selling holders or
underwriters may reasonably request;
(p) furnish to each Holder participating in the offering and
the managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference) in
connection with the offering;
(q) cooperate with the selling holders of Registrable
Securities and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive
legends representing the Registrable Securities to be sold, and cause such
Registrable Securities to be issued in such denominations and registered in
such names in accordance with the underwriting agreement prior to any sale
of Registrable Securities to the underwriters or, if not an underwritten
offering, in accordance with the instructions of the selling holders of
Registrable Securities at least three business days prior to any sale of
Registrable Securities; and
(r) take all such other commercially reasonable actions as are
necessary or advisable in order to expedite or facilitate the disposition
of such Registrable Securities.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.4 that each seller of Registrable
Securities as to which any registration is being effected furnish the
Company such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request provided
that such information shall be used only in connection with such
registration.
Each Holder of Registrable Securities agrees that upon receipt of
any notice from the Company of the happening of any event of the kind
described in clause (v) of paragraph (e) of this Section 2.4, such Holder
will discontinue such Holder's disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by paragraph (e) of this Section 2.4 and, if so
directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such
Holder's possession of the prospectus covering such Registrable Securities
that was in effect at the time of receipt of such notice. In the event the
Company shall give any such notice, the applicable period mentioned in
paragraph (b) of this Section 2.4 shall be extended by the number of days
during such period from and including the date of the giving of such notice
to and including the date when each seller of any Registrable Securities
covered by such registration statement shall have received the copies of
the supplemented or amended prospectus contemplated by paragraph (e) of
this Section 2.4.
If any such registration statement or comparable statement under
"blue sky" laws refers to any Holder by name or otherwise as the Holder of
any securities of the Company, then such Holder shall have the right to
require (i) the insertion therein of language, in form and substance
satisfactory to such Holder and the Company, to the effect that the holding
by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such Holder by name or
otherwise is not in the judgment of the Company, as advised by counsel,
required by the Securities Act or any similar federal statute or any state
"blue sky" or securities law then in force, the deletion of the reference
to such Holder.
2.5 Registration Expenses.
(a) "Expenses" shall mean any and all fees and expenses
incident to the Company's performance of or compliance with this Article 2,
including, without limitation: (i) Commission, stock exchange or National
Association of Security Dealers, Inc. registration and filing fees and all
listing fees and fees with respect to the inclusion of securities in
NASDAQ, (ii) fees and expenses of compliance with state securities or "blue
sky" laws and in connection with the preparation of a "blue sky" survey,
including without limitation, reasonable fees and expenses of blue sky
counsel, (iii) printing expenses, (iv) messenger and delivery expenses,
(v) fees and disbursements of counsel for the Company, (vi) with respect to
each registration, the fees and disbursements of one counsel for the
selling Holder(s) (selected by the Holder(s) making the Demand Registration
Request, in the case of a registration pursuant to Section 2.1, and
selected by the Holders of a majority of the Registrable Securities
included in such registration, in the case of a registration pursuant to
Section 2.2) as well as of one local counsel, (vii) fees and disbursements
of all independent public accountants (including the expenses of any audit
and/or "cold comfort" letter) and fees and expenses of other persons,
including special experts, retained by the Company and (viii) any other
fees and disbursements of underwriters, if any, customarily paid by issuers
or sellers of securities (collectively, "Expenses").
(b) The Company shall pay all Expenses with respect to any
Demand Registration that shall not be deemed to have been effected as
contemplated by Section 2.1(b) and any registration effected under Section
2.2. With respect to any Demand Registration effected pursuant to Section
2.1, (i) the Company shall pay all Expenses related to any three Demand
Registrations which any Holder elects to have the Company pay the Expenses
related thereto and (ii) the Holders of Registrable Securities (together
with the Company, if the Company participates in any Demand Registration
pursuant to Section 2.1(c)) shall pay all Expenses related to any other
Demand Registration effected pursuant to Section 2.1 (such Expenses shall
be allocated among the Persons (including the Company, if applicable)
participating in a Demand Registration on a pro rata basis based on the
number of Registrable Securities included in such offering by a Person
relative to the number of Registrable Securities included in such offering
by all Persons, except to the extent Expenses are specifically attributable
to a Person or to securities included in an offering by a Person).
(c) Notwithstanding the foregoing, (x) the provisions of this
Section 2.5 shall be deemed amended to the extent necessary to cause these
expense provisions to comply with "blue sky" laws of each state in which
the offering is made and (y) in connection with any registration hereunder,
each Holder of Registrable Securities being registered shall pay all
underwriting discounts and commissions and any transfer taxes, if any,
attributable to the sale of such Registrable Securities, pro rata with
respect to payments of discounts and commissions in accordance with the
number of shares sold in the offering by such Holder, and (z) the Company
shall, in the case of all registrations under this Article 2, be
responsible for all its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties). Notwithstanding anything to the contrary contained in
this Agreement, the Company should not be liable for any underwriting
discounts or commissions or any portion of any underwriting spread in
respect of securities sold for the account of any Person (including the
Holders) other than the Company.
2.6 Certain Limitations on Registration Rights. In the case of
any registration under Section 2.1 pursuant to an underwritten offering, or
in the case of a registration under Section 2.2 if the Company has
determined to enter into an underwriting agreement in connection therewith,
all Registrable Securities to be included in such registration shall be
subject to an underwriting agreement and no person may participate in such
registration unless such person agrees to sell such person's securities on
the basis provided therein and completes and executes all reasonable
questionnaires, and other documents (other than powers of attorney) which
must be executed in connection therewith, and provides such other
information to the Company or the underwriter as may be necessary to
register such Holder's Registrable Securities.
2.7 Limitations on Sale or Distribution of Other Securities.
(a) If requested in writing by the Company or the managing
underwriter, if any, of any registration effected by the Company, each
Holder of Registrable Securities agrees not to effect any public sale or
distribution, including any sale pursuant to Rule 144 under the Securities
Act, of any Registrable Securities, or of any other equity security of the
Company or of any security convertible into or exchangeable or exercisable
for any equity security of the Company (other than as part of such
underwritten public offering) during the time period reasonably requested
by the managing underwriter, not to exceed 90 days after effectiveness of
such registration (and the Company hereby also so agrees with respect to
any registration effected pursuant to Section 2.1 (except that the Company
may effect any sale or distribution of any such securities pursuant to a
registration on Form S-4 or Form S-8, or any successor or similar form
which is then in effect, a registration in connection with any employee
benefit or option plan or a registration in connection with any acquisition
of a business or property or a registration with respect to Common Stock
issuable in exchange for Company OP Units) and agrees to use its reasonable
best efforts to cause each holder of any equity security or of any security
convertible into or exchangeable or exercisable for any equity security of
the Company purchased from the Company at any time other than in a public
offering so to agree). If the sum of (i) the number of days for which the
Holders' ability to effect sales are restricted pursuant to a request made
under this Section 2.7(a) (a "holdback period") and (ii) the number of days
for which registration rights were not available pursuant to Section
2.1(b)(iii) during the 365-day period immediately preceding the end of the
holdback period described in the foregoing clause (a) would exceed 180,
then the Company will have no right to suspend availability of registration
rights under Section 2.1(b)(iii) or restrict the Holders' ability to effect
sales under this Section 2.7(a), in each case, for a period of 90 days
following the end of the holdback period and the number of days that the
Company may suspend the availability of registration rights under Section
2.1(b)(iii) during the 365-day period following the end of the holdback
period will be reduced by the number of days in the holdback period.
(b) The Company hereby agrees that, if it shall previously
have received a request for registration pursuant to Section 2.1 or 2.2,
and if such previous registration shall not have been withdrawn or
abandoned, the Company shall not, without the prior written consent of the
Holders who made the Demand Registration Request, in the case of a
registration pursuant to Section 2.1, or the Holders of a majority of the
Registrable Securities included in such registration, in the case of a
registration pursuant to Section 2.2, effect any registration of any of its
securities under the Securities Act (other than a registration on Form S-4
or Form S-8 or any successor or similar form which is then in effect, a
registration in connection with any employee benefit or option plan, a
registration in connection with any acquisition of a business or property
or a registration with respect to Common Stock issuable in exchange for
Company OP Units), whether or not for sale for its own account, until a
period of 90 days shall have elapsed from the effective date of such
previous registration; and the Company shall so provide in any registration
rights agreements hereafter entered into with respect to any of its
securities.
2.8 No Required Sale. Nothing in this Agreement shall be deemed
to create an independent obligation on the part of any Holder to sell any
Registrable Securities pursuant to any effective registration statement.
2.9 Indemnification.
(a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to this Article 2, the Company
will, and hereby does, indemnify and hold harmless, to the fullest extent
permitted by law, the seller of any Registrable Securities covered by such
registration statement, its directors, officers, fiduciaries, employees and
stockholders or general and limited partners (and the directors, officers,
employees and stockholders thereof), each other individual, partnership,
joint venture, corporation, trust, unincorporated organization or
government or any department or agency thereof (each, a "Person") who
participates as an underwriter in the offering or sale of such securities,
each officer, director, employee, stockholder or partner of such
underwriter, and each other Person, if any, who controls such seller or any
such underwriter within the meaning of the Securities Act, against any and
all losses, claims, damages or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) in respect thereof ("Claims")
and expenses (including reasonable fees of counsel and any amounts paid in
any settlement effected with the Company's consent) to which each such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such Claims or expenses arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained
in any registration statement under which such securities were registered
under the Securities Act or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary, final or
summary prospectus or any amendment or supplement thereto, together with
the documents incorporated by reference therein, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (iii) any
violation by the Company of any federal, state or common law rule or
regulation applicable to the Company and relating to action required of or
inaction by the Company in connection with any such registration, and the
Company will reimburse any such indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim as such expenses are incurred;
provided, however, that the Company shall not be liable to any such
indemnified party in any such case to the extent such Claim or expense
arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact made in such registration statement or amendment thereof or supplement
thereto or in any such prospectus or any preliminary, final or summary
prospectus or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such
indemnified party (or to the extent provided in an underwriting agreement,
any underwriter) specifically for use therein. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless
of any investigation made by or on behalf of such indemnified party and
shall survive the transfer of such securities by such seller.
(b) Each Holder of Registrable Securities that are included in
the securities as to which any registration under Section 2.1 or 2.2 is
being effected (each, an "Included Holder") (and, if the Company requires
as a condition to including any Registrable Securities in any registration
statement filed in accordance with Section 2.1 or 2.2, any underwriter)
shall, severally and not jointly and if MET or any of its Affiliates are an
Included Holder, Reckson, MET, its subsidiaries and Included Holders that
are Affiliates of MET jointly and severally with each other, but severally
and not jointly with respect to other Holders, indemnify and hold harmless
(in the same manner and to the same extent as set forth in paragraph (a) of
this Section 2.9) to the extent permitted by law the Company, its officers
and directors, each Person controlling the Company within the meaning of
the Securities Act and all other prospective sellers and their directors,
officers, general and limited partners and respective controlling Persons
with respect to any untrue statement or alleged untrue statement of any
material fact in, or omission or alleged omission of any material fact
from, such registration statement, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, if
such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company or its representatives by or on behalf of such Holder or
underwriter specifically for use therein and reimburse such indemnified
party for any legal or other expenses reasonably incurred in connection
with investigating or defending any such Claim as such expenses are
incurred; provided, however, that the aggregate amount which any such
Holder shall be required to pay pursuant to this Section 2.9(b) and
Sections 2.9(c) and (e) shall in no case be greater than the amount of the
gross proceeds net of underwriting discounts and commissions received by
such person upon the sale of the Registrable Securities pursuant to the
registration statement giving rise to such claim. Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless
of any investigation made by or on behalf of such indemnified party and
shall survive the transfer of such securities by such Holder.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities
with respect to any required registration or other qualification of
securities under any state securities and "blue sky" laws.
(d) Any person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of the
commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 2.9, but the failure
of any indemnified party to provide such notice shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of
this Section 2.9, except to the extent the indemnifying party is materially
prejudiced thereby and shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
this Article 2. In case any action or proceeding is brought against an
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, to
assume the defense thereof jointly with any other indemnifying party
similarly notified, to the extent that it chooses, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party that it so chooses, the
indemnifying party shall not be liable to such indemnified party for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that (i) if the indemnifying party fails
to take reasonable steps necessary to defend diligently the action or
proceeding within 20 days after receiving notice from such indemnified
party that the indemnified party believes it has failed to do so; or
(ii) if such indemnified party who is a defendant in any action or
proceeding which is also brought against the indemnifying party reasonably
shall have concluded that there may be one or more legal defenses available
to such indemnified party which are not available to the indemnifying
party; or (iii) if representation of both parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct,
then, in any such case, the indemnified party shall have the right to
assume or continue its own defense as set forth above (but with no more
than one firm of counsel for all indemnified parties in each jurisdiction,
except to the extent any indemnified party or parties reasonably shall have
concluded that there may be legal defenses available to such party or
parties which are not available to the other indemnified parties or to the
extent representation of all indemnified parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct)
and the indemnifying party shall be liable for any expenses therefor. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (A)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is unavailable
or is insufficient to hold harmless an indemnified party under Sections
2.9(a), (b) or (c), except by reason of the proviso contained in Section
2.9(a), then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any Claim in such
proportion as is appropriate to reflect the relative fault and relative
benefit of the indemnifying party, on one hand, and the indemnified party,
on the other hand, with respect to such offering of securities as well as
any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties hereto agree that
it would not be just and equitable if contributions pursuant to this
Section 2.9(e) were to be determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in the preceding sentences of this Section
2.9(e). The amount paid or payable in respect of any Claim shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
Claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding anything in this Section 2.9(e) to the
contrary, no indemnifying party (other than the Company) shall be required
pursuant to this Section 2.9(e) to contribute any amount in excess of the
gross proceeds net of underwriting discounts and commissions received by
such indemnifying party from the sale of Registrable Securities in the
offering to which the losses, claims, damages or liabilities of the
indemnified parties relate, less the amount of any indemnification payment
made by such indemnifying party pursuant to Sections 2.9(b) and (c).
(f) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made
or omitted by or on behalf of any indemnified party and shall survive the
transfer of the Registrable Securities by any such party.
(g) The indemnification and contribution required by this
Section 2.9 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received
or expense, loss, damage or liability is incurred.
3 Underwritten Offerings. If requested by the underwriters for any
underwritten offering by the Holders pursuant to a registration requested
under Section 2.1, the Company shall enter into a customary underwriting
agreement with the underwriters. Such underwriting agreement shall be
satisfactory in form and substance to a majority of the Holders which
requested such registration and shall contain such representations and
warranties by, and such other agreements on the part of, the Company and
such other terms as are generally prevailing in agreements of that type,
including, without limitation, indemnities and contribution agreements.
Any Holder participating in the offering shall be a party to such
underwriting agreement and may, at its option, in the case of a
registration effected pursuant to Section 2.1 only, require that any or all
of the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also
be made to and for the benefit of such Holder and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
Holder; provided, however, that the Company shall not be required to make
any representations or warranties with respect to written information
specifically provided by a selling Holder for inclusion in the registration
statement. Such underwriting agreement shall also contain such
representations and warranties by the participating Holders as are
customary in agreements of that type.
4 General.
4.1 Rule 144. The Company covenants that (i) so long as it
remains subject to the reporting provisions of the Exchange Act, it will
timely file the reports required to be filed by it under the Securities Act
or the Exchange Act (including, but not limited to, the reports under
Sections 13 and 15(d) of the Exchange Act referred to in subparagraph
(c)(1) of Rule 144 under the Securities Act), and (ii) will take such
further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder
to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (A) Rule 144 under
the Securities Act, as such Rule may be amended from time to time, or
(B) any similar rule or regulation hereafter adopted by the Commission.
Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied
with such requirements.
4.2 Nominees for Beneficial Owners. If Registrable Securities
are held by a nominee for the beneficial owner thereof, the beneficial
owner thereof may, at its option, be treated as the Holder of such
Registrable Securities for purposes of any request or other action by any
Holder or Holders of Registrable Securities pursuant to this Agreement (or
any determination of any number or percentage of shares constituting
Registrable Securities held by any Holder or Holders of Registrable
Securities contemplated by this Agreement), provided that the Company shall
have received assurances reasonably satisfactory to it of such beneficial
ownership.
4.3 Amendments and Waivers. This Agreement may be amended,
modified, supplemented or waived only upon the written agreement of the
Company, MET (so long as it or any of its Affiliates holds Registrable
Securities) and a majority of the Holders.
4.4 Notices. Except as otherwise provided in this Agreement,
all notices, requests, consents and other communications hereunder to any
party shall be deemed to be sufficient if contained in a written instrument
delivered in person or by telecopy, nationally recognized overnight courier
or first class registered or certified mail, return receipt requested,
postage prepaid, addressed to such party at the address set forth below or
such other address as may hereafter be designated in writing by such party
to the other parties:
(i) if to the Company, to:
Tower Realty Trust, Inc.
292 Madison Avenue
New York, New York 10017
Telecopy: (212) 448-1865
Attention: Chief Financial Officer
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022-9931
Telecopy: (212) 735-2000
Attention: Lou R. Kling, Esq.
Howard L. Ellin, Esq.
(ii) if to MET, to:
Metropolitan Partners LLC
c/o Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Telecopy: (516) 622-6788
Attention: Jason M. Barnett, General Counsel
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Telecopy: (212) 859-4000
Attention: Stephen Fraidin, P.C.
(iii) if to any other Holder, to the address provided by
such Holder to the Company upon becoming a Holder.
All such notices, requests, consents and other communications
shall be deemed to have been given when received.
4.5 Miscellaneous.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and the respective
successors, personal representatives and assigns of the parties hereto,
whether so expressed or not. No Person other than a Holder and the Company
shall be entitled to any benefits under this Agreement, except as otherwise
expressly provided herein. No Person who obtains securities in violation
of Section 3.3 of the Purchase Agreement shall be entitled to any benefits
under this Agreement. This Agreement and the rights of MET hereunder may
be assigned by MET to up to five transferees of Registrable Securities
(excluding for this clause any transfer to an Affiliate of MET) provided
that upon the consummation of, and as a condition to, any such assignment
the transferee assumes the obligations of the assignor under, and agrees to
be bound by the terms of, this Agreement. Any transferee of MET or its
Affiliates may assign in whole, but not in part, its rights under this
Agreement to a transferee of Registrable Securities. Any Holder assigning
registration rights hereunder to a transferee of Registrable Securities
(excluding transfers by MET to its Affiliates) must notify the Company in
writing of such transfer (and the identity of such transferee) within five
business days of such transfer.
(b) This Agreement (with the documents referred to herein or
delivered pursuant hereto) embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof.
(c) This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of New York without
giving effect to the conflicts of law principles thereof.
(d) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
All section references are to this Agreement unless otherwise expressly
provided.
(e) This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
(f) Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of
this Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction.
(g) It is hereby agreed and acknowledged that it will be
impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them
and that in the event of any such failure, an aggrieved person will be
irreparably damaged and will not have an adequate remedy at law. Any such
person, therefore, shall be entitled to injunctive relief, including
specific performance, to enforce such obligations, without the posting of
any bond, and, if any action should be brought in equity to enforce any of
the provisions of this Agreement, none of the parties hereto shall raise
the defense that there is an adequate remedy at law.
(h) Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments, and documents
as any other party hereto reasonably may request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
4.6 No Inconsistent Agreements. Without the prior written
consent of a majority of the Holders, neither the Company nor any Holder
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities which is inconsistent with the rights granted in
this Agreement or otherwise conflicts with the provisions hereof, other
than any lock-up agreement with the underwriters in connection with any
registered offering effected hereunder, pursuant to which the Company shall
agree not to register for sale, and the Company shall agree not to sell or
otherwise dispose of, Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, for a specified period not to
exceed 90 days following the registered offering; provided that this
Section 4.6 shall in no way limit the obligations of the Company under
Sections 2.1 and 2.7 hereof.
4.7 Subsidiaries of Reckson. With respect to all Holders that
are wholly owned subsidiaries of Reckson (x) all rights shall be exercised
on their behalf by MET, (y) all notices given to MET shall be deemed to
have been given to such Holders and (z) all notifications required to be
given to such Holders shall be deemed given to them upon notification to
MET.
4.8 Termination. This Agreement may be terminated at any time
by a written instrument signed by all Holders and the Company. Unless
sooner terminated in accordance with the preceding sentence, this Agreement
shall terminate in its entirety on the earliest of (i) the tenth
anniversary of the date hereof, (ii) the later of (a) the fifth anniversary
of the date hereof and (b) such time as three (3) Demand Registrations
shall have been deemed satisfied pursuant to Section 2.1 hereof or
(iii) the date on which no Holder beneficially owns more than 1% of the
outstanding Common Stock; provided that so long as the Holders have
registration rights under Section 2.1 available, this Agreement will not
terminate pursuant to this clause (iii) unless MET and its Affiliates
beneficially own, collectively, less than 0.5% of the outstanding Common
Stock. Notwithstanding anything to the contrary herein, Sections 2.5 and
2.9 shall survive termination of this Agreement with respect to
registration statements filed prior to such termination.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
TOWER REALTY TRUST, INC.
By: /s/ Lester S. Garfinkel
--------------------------------------
Name: Lester S. Garfinkel
Title: Chief Financial Officer
METROPOLITAN PARTNERS LLC
By: Reckson Operating Partnership, L.P.,
a member
By: Reckson Associates Realty Corp.,
its sole general partner
By: /s/ Scott H. Rechler
--------------------------------------
Name: Scott H. Rechler
Title: President
Solely for purposes of agreeing to be bound by and subject to the
provisions of Section 2.9(b):
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Scott H. Rechler
-------------------------------------
Name: Scott H. Rechler
Title: President
EXHIBIT 99.1
Contact: Robert D. Siegfried
Kekst and Company
212-521-4800
TOWER CONFIRMS TALKS WITH RECKSON
FOR IMMEDIATE RELEASE
NEW YORK, NY (December 8, 1998) Tower Realty (NYSE: TOW) confirmed today
that it was engaged in discussions with Reckson Associates Realty Corp. as
to an acquisition of Tower by Reckson substantially on the terms reported
in today's Wall Street Journal. Tower cautioned, however, that
negotiations were ongoing and that no assurances could be given that the
parties would reach a definitive agreement or that such agreement, if
reached, would be consummated.
Tower also indicated that it did not intend to make any further
announcement concerning this matter until a definitive agreement was
reached or, in its judgement, negotiations had been permanently terminated.
Tower Realty Trust is a self-managed real estate investment trust engaged
in the development, acquisition, ownership, renovation, management and
leasing of office properties.
# # #
EXHIBIT 99.2
Contact For Reckson: Contact For Tower: Contact for Crescent:
George Sard/Paul Caminiti/ Robert Siegfried Gerald W. Haddock
Heather Reeves Kekst and Company President & CEO
Sard Verbinnen & Co 212/521-4832 817/321-1444
212/687-8080
RECKSON ASSOCIATES, CRESCENT REAL ESTATE AND TOWER
REALTY ANNOUNCE REVISED MERGER AGREEMENT
MELVILLE, N.Y., AND NEW YORK AND FORT WORTH, TEXAS--DEC. 8, 1998-- Reckson
Associates Realty Corp. (NYSE: RA), Crescent Real Estate Equities Company
(NYSE: CEI) and Tower Realty Trust, Inc. (NYSE: TOW) today said they have
replaced their previously announced merger agreement. The revised agreement
provides for Metropolitan Partners LLC ("Metropolitan"), an entity
controlled by Reckson in which Crescent holds an interest, to acquire Tower
for a combination of cash and a new Reckson equity security. Under the
original agreement announced on July 9, 1998, Metropolitan, which at that
time was a 50/50 joint venture with Crescent, would have acquired Tower for
$24 per share in cash.
Under the terms of the revised transaction, each Tower share will be
exchanged for $5.75 in cash and 0.6273 of a newly issued Reckson Class B
common share. Tower shareholders can elect to receive a higher proportion
of stock or cash, subject to proration. Each share of Reckson Class B
common stock will be convertible at any time into existing Reckson common
stock on a one-for-one basis. Reckson common stock closed at $23.31 today.
The Class B shares will pay an initial cash dividend of $2.24 per share,
resulting in an initial yield of 8.15%, based on a notional value of $27.50
per Class B share. The initial cash dividend on the Class B shares will be
adjusted annually beginning in year two by a percentage equal to 70% of the
cumulative percentage change in Reckson's funds from operations (FFO) per
share above the base year (FFO) per share. Each Class B share can be
redeemed by Reckson for one Reckson common share beginning at the end of 4
1/2 years. Under the agreement, Reckson will also assume approximately $300
million in Tower debt, some of which is expected to be refinanced. In
addition, Metropolitan has today purchased $40 million of convertible
preferred stock of Tower for $18.44 per share. The preferred stock will
initially have a dividend equal to the dividend on the Tower common stock
(currently $1.69 per share), resulting in a yield of 9.16%.
Metropolitan has been restructured whereby Reckson now owns a 100% common
equity interest and Crescent will own an $85 million convertible preferred
interest. Crescent's investment will have a preference of 7.5% for a two
year period and may be redeemed by Metropolitan at any time during that
period for $85 million, plus an amount sufficient to provide a 9.5%
internal rate of return. If Metropolitan does not redeem the preferred
interest upon expiration of the two year period, then Crescent must convert
the interest either into (i) a common equity interest in Metropolitan or
(ii) shares of common stock of Reckson at a conversion price of $24.61. In
connection with the revised transaction, Tower, Reckson and Crescent have
agreed to exchange mutual releases for any claims relating to the previous
agreement.
The transaction is expected to close in the first quarter of 1999, subject
to the approval of Tower shareholders. A vote of Reckson shareholders will
determine whether the transaction will be structured as outlined above or a
more leveraged structure, in which approximately one-third of the Class B
shares will be replaced with 7% senior unsecured 10-year notes, will be
utilized. Reckson's Board is recommending that its shareholders approve the
issuance of the additional Class B shares rather than the more leveraged
structure.
Tower's 2.3 million square feet of prime New York City office space will
complement Reckson's 22 million square feet of Class A suburban office and
industrial properties, enhancing Reckson's position as one of the largest
owners and managers of commercial real estate in the New York metropolitan
area. Reckson estimates that it is purchasing Tower's assets at an
approximate 40% discount to replacement cost, an anticipated net operating
income (NOI) yield in excess of 9.1% and an FFO yield in excess of 10.1%.
Reckson believes the transaction will strengthen its capital structure and
will be meaningfully accretive to Reckson's FFO.
Scott Rechler, Reckson's President and Chief Operating Officer, said, "We
are very pleased to have been able to negotiate a new agreement on terms
that are beneficial to all parties. This innovative structure enables
Reckson to issue common securities at an 18% premium to our closing common
stock price at a time of overall market illiquidity. Acquiring Tower on
these terms will give Reckson the initial presence and capital structure
necessary to launch our New York City platform." Scott Rechler added,
"Metropolitan will be structured in a manner similar to existing Reckson
divisions in Long Island, Westchester County, Southern Connecticut and New
Jersey. We intend to recruit an experienced local management team,
including a managing director and high-caliber leasing, operations and
asset management professionals."
Gerald W. Haddock, Crescent's President and Chief Executive Officer,
stated, "We are pleased to have resolved the issues presented in the
original transaction and to continue our participation in Metropolitan
through a preferred investment which provides Crescent with a preferred
return as well as an opportunity to participate along with Reckson in the
upside created by Metropolitan's consolidation platform for the New York
market."
Reckson plans to sell Tower's non-New York assets, comprised of 1.9 million
square feet of existing properties located in Phoenix, Tucson and Orlando,
a 160,000 square foot office building under development in Phoenix, and 40
acres of undeveloped land in Phoenix, on timing and terms intended to
maximize value to Metropolitan.
Lester S. Garfinkel, Tower's Chief Financial Officer and Executive Vice
President for Finance and Administration, stated, "The Board and management
of Tower have been committed to achieving a transaction that serves the
best interest of Tower shareholders. With this transaction, Tower
shareholders are able to realize both a cash return and the ability to
participate in the future of the combined entity. We are pleased that the
parties were able to resolve our differences and that we are moving
forward with this compelling combination."
"We have spent the last three years expanding the Reckson franchise in the
surrounding tri-state area suburban marketplace," said Donald Rechler,
Reckson's Chairman and Chief Executive Officer. "This transaction adds the
valuable New York City marketplace, which will create operating and leasing
synergies with our suburban markets, thereby increasing the overall value
of the Reckson franchise and positioning the Company for further growth.
Given Manhattan's unique supply and demand characteristics, the enormous
size of the market with over 340 million square feet of office space, and
highly fragmented ownership, we believe that this transaction will provide
Reckson with substantial new opportunities."
Tower Realty Trust is a self-managed real estate investment trust engaged
in the development, acquisition, ownership, renovation, management and
leasing of office properties. Tower Realty Trust owns interests in 25
buildings with an aggregate of approximately 4.6 million square feet in the
Manhattan, Phoenix/Tucson and Orlando markets, with two-thirds of the
Company's rental stream derived from its Manhattan office properties. In
addition, the Company owns or has options to acquire approximately 50 acres
of land upon which it can build 2.2 million square feet.
Crescent is a fully integrated real estate company which owns through its
subsidiaries a portfolio of real estate assets, consisting of 89 office
properties and 7 retail properties totaling 32.6 million square feet, a 38%
interest in 97 refrigerated warehouse facilities, 90 behavioral healthcare
facilities, 7 full-service hotels totaling 2,257 rooms, 2 destination
health and fitness resorts, and economic interests in 5 residential
development corporations. The office and retail properties are located
primarily in 17 metropolitan submarkets in Texas.
Reckson is a self-administered and self-managed real estate investment
trust specializing in acquisition, leasing, financing, management, and
development of office and industrial properties. Reckson is one of the
largest publicly traded owners and managers of Class A suburban office and
industrial properties in the New York Tri-State area, with properties
comprising approximately 22 million square feet either owned or under
contract. Reckson's growth strategy is focused on the New York Tri-State
area. Since the completion of its initial public offering in May 1995,
excluding this transaction Reckson has acquired or contracted to acquire
approximately $1.3 billion of properties comprising approximately 17.5
million square feet of space.
Certain matters discussed within this press release are forward-looking
statements within the meaning of the federal securities laws, and the
transactions contemplated herein are subject to certain closing conditions.
Although Reckson, Crescent and Tower believe that the expectations
reflected in such forward-looking statements are based upon reasonable
assumptions, they can give no assurance that its expectations will be
achieved. Factors that could cause actual results to differ materially from
Reckson, Crescent and Tower expectations include changes in real estate
conditions (including rental rates and competing properties) or in
industries in which their principal tenants compete, failure to consummate
anticipated transactions, timely leasing of unoccupied square footage,
timely releasing of occupied square footage upon expiration, finding
acquisition opportunities which meet their investment strategy and other
risks detailed from time to time in the Reckson, Crescent and Tower reports
filed with the Securities and Exchange Commission, including annual reports
on Form 10-K, quarterly reports on Form 10-Q and reports on Form 8-K.
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