SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
-------------
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: December 8, 1998
RECKSON ASSOCIATES REALTY CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Maryland
(STATE OF INCORPORATION)
1-13762 11-3233650
(COMMISSION FILE NUMBER) (IRS EMPLOYER ID. NUMBER)
225 Broadhollow Road 11747
Melville, New York (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(516) 694-6900
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
<PAGE>
This Current Report on Form 8-K and the Press Release referred to herein
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 and therein, including the
fact that the Merger is subject to certain conditions and therefore may not
close when anticipated or at all, and in Reckson's filings with the Securities
and Exchange Commission.
ITEM 5. OTHER EVENTS
On December 8, 1998, Reckson Associates Realty Corp. ("Reckson"), Reckson
Operating Partnership, L.P. ("Reckson OP"), Metropolitan Partners LLC
("Metropolitan") and Tower Realty Trust, Inc. ("Tower") executed a merger
agreement (the "Merger Agreement"), pursuant to which Tower will be merged (the
"Merger") into Metropolitan, with Metropolitan surviving the Merger.
Concurrently with the Merger, Tower Realty Operating Partnership, L.P. ("Tower
OP") will be merged with and into a subsidiary of Metropolitan. The
consideration to be issued in the mergers will be comprised of (i) 25% cash and
(ii) 75% of shares of Class B Exchangeable Common Stock, par value $.01 per
share, of Reckson (the "Class B Common Stock"), or in certain circumstances
described below, shares of Class B Common Stock and unsecured notes of Reckson
OP. Reckson controls Metropolitan and owns 100% of the common equity; Crescent
Real Estate Equities Company ("Crescent") owns a preferred equity investment in
Metropolitan. The Merger Agreement replaces a previously existing merger
agreement among Reckson, Crescent, Metropolitan and Tower relating to the
acquisition by Metropolitan (which at that time was a 50/50 joint venture
between Reckson and Crescent) of Tower for $24 per share.
Pursuant to the terms of the Merger Agreement, holders of shares of
outstanding common stock of Tower ("Tower Common Stock"), and outstanding
units of limited partnership interest of Tower OP will have the option to
elect to receive cash or shares of Class B Common Stock, subject to proration.
Under the terms of the transaction, Metropolitan will effectively pay for each
share of Tower Common Stock and each unit of limited partnership interest of
Tower OP: (i) $5.75 in cash, and (ii) 0.6273 of a share of Class B Common
Stock. The shares of Class B Common Stock are entitled to receive an initial
annual dividend of $2.24 per share, payable quarterly, for the first four full
quarters immediately following their issuance. The cash dividend of the Class
B Common Stock is subject to adjustment annually, beginning on the first
anniversary of the end of the quarter following the issuance of the Class B
Common Stock, by a percentage equal to 70% of the cumulative percentage change
in Reckson's funds from operations ("FFO") per share above the FFO per share
during the four quarters ending in the quarter of their issuance. The shares
of Class B Common Stock are exchangeable at any time, at the option of the
holder, into an equal number of shares of common stock, par value $.01 per
share, of Reckson ("Reckson Common Stock") subject to customary antidilution
adjustments. Reckson, at its option, may redeem any or all of the Class B
Common Stock in exchange for an equal number of shares of Reckson Common Stock
at any time following the four year, six-month anniversary of the issuance of
the Class B Common Stock. It is anticipated that Reckson's Board of Directors
will recommend to Reckson stockholders the approval of a proposal to issue a
number of shares of Class B Common Stock equal to 75% of the sum of (i) the
number of outstanding shares of the Tower Common Stock and (ii) the number of
Tower OP limited partnership units, in each case, at the effective time of the
mergers. If the stockholders of Reckson do not approve the issuance of the
Class B Common Stock as proposed, the Merger Agreement provides that
approximately one-third of the consideration that was to be paid in the form
of Class B Common Stock will be replaced by senior unsecured notes of Reckson
OP, which notes will bear interest at the rate of 7% per annum and have a term
of ten years. In addition, if the stockholders of Reckson do not approve the
issuance of Class B Common Stock as proposed and the Board of Directors of
Reckson does not recommend, or withdraws or amends or modifies in any material
respect its recommendation for, approval of such proposal, then the total
principal amount of notes to be issued and distributed in the Merger will be
increased by $15 million.
Simultaneously with the execution of the Merger Agreement, Metropolitan
and Tower executed and consummated a stock purchase agreement (the "Series A
Stock Purchase Agreement") pursuant to which Metropolitan purchased from Tower
approximately 2.2 million shares of Series A Convertible Preferred Stock, par
value $.01 per share, of Tower (the "Tower Preferred Stock"), for an aggregate
purchase price of $40 million. The Tower Preferred Stock has a stated value of
$18.44 per share and is convertible by Metropolitan into an equal number of
shares of Tower Common Stock at anytime after the termination, if any, of the
Merger Agreement (the "Triggering Event"), subject to customary antidilution
adjustments. Prior to the occurrence of the Triggering Event, the Tower
Preferred Stock is entitled to receive dividends equivalent to those paid on
the Tower Common Stock. Following the occurrence of the Triggering Event,
dividends shall accrue at a rate of 10% per annum and, if such dividends are
in arrears for six or more quarters, the holders of the Tower Preferred Stock
will be entitled to elect two additional directors to Tower's Board of
Directors. If the Merger Agreement is not consummated and a court of competent
jurisdiction issues a final, non-appealable judgment determining that Reckson
and Metropolitan are obligated to consummate the Merger but have failed to do
so, or determining that Reckson and Metropolitan failed to use their
reasonable best efforts to take all actions necessary to cause certain closing
conditions to be satisfied, Metropolitan is obligated to return to Tower $30
million of the Series A Preferred Stock.
Immediately prior to the execution of the Merger Agreement and
consummation of the Stock Purchase Agreement, Reckson and Crescent executed
the amended and restated operating agreement of Metropolitan (the
"Metropolitan Operating Agreement") pursuant to which Crescent agreed to
purchase a convertible preferred membership interest (the "Preferred
Interest") in Metropolitan for an aggregate purchase price of $85 million. $10
million of the purchase price was paid by Crescent to Metropolitan upon
execution of the Metropolitan Operating Agreement and the remaining portion is
payable prior to the closing of the Merger and is expected to be used to fund
a portion of the cash merger consideration. Crescent's investment accrues
distributions at a rate of 7.5% per annum 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 the expiration of
the two-year period, Crescent must convert its interest into either (i) a
common membership interest in Metropolitan or (ii) shares of Reckson Common
Stock at a conversion price of $24.61.
In connection with the revised transaction, Tower, Reckson and Crescent
have exchanged mutual releases for any claims relating to the previous merger
agreement.
The foregoing is a summary of certain significant provisions of the
Merger and related transactions. The summary is qualified by reference to the
Merger Agreement, the Series A Stock Purchase Agreement and the Metropolitan
Operating Agreement, each of which is attached hereto and incorporated by
reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) EXHIBITS
10.1 Agreement and Plan of Merger, dated December 8, 1998 (including
exhibits)
10.2 Stock Purchase Agreement, dated December 8, 1998 (including
exhibits)
10.3 Amended and Restated Operating Agreement of Metropolitan Partners
LLC, dated December 8, 1998
99.1 December 8, 1998 Press Release
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RECKSON ASSOCIATES REALTY CORP.
/s/ Michael Maturo
----------------------------------
Michael Maturo
Executive Vice President
and Chief Financial Officer
Date: December 21, 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
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER
SECTION 1.1 The Merger...............................................3
SECTION 1.2 Effect on Shares of Company Common Stock and
Company OP Units.........................................4
SECTION 1.3 Share Election...........................................6
SECTION 1.4 Proration................................................8
SECTION 1.5 Exchange of Certificates................................10
SECTION 1.6 Transfer Taxes; Withholding.............................12
SECTION 1.7 No Further Ownership Rights in Shares of Company
Common Stock............................................13
SECTION 1.8 Closing of Transfer Books and Records...................13
SECTION 1.9 Stock Options...........................................13
SECTION 1.10 Restricted Stock........................................14
SECTION 1.11 [Intentionally Omitted].................................14
SECTION 1.12 Closing.................................................14
ARTICLE II
THE SURVIVING ENTITY
SECTION 2.1 Certificate of Formation................................14
SECTION 2.2 Operating Agreement.....................................14
SECTION 2.3 Members and Managers....................................14
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 3.1 Corporate Existence and Power...........................15
SECTION 3.2 Corporate Authorization.................................15
SECTION 3.3 Consents and Approvals; No Violations...................15
SECTION 3.4 Capitalization..........................................17
SECTION 3.5 Subsidiaries............................................18
SECTION 3.6 SEC Documents...........................................19
SECTION 3.7 Financial Statements....................................20
SECTION 3.8 [Intentionally Omitted].................................20
SECTION 3.9 Joint Proxy Statement; Form S-4 Registration
Statement; Other Information............................20
SECTION 3.10 Absence of Material Adverse Changes, etc................20
SECTION 3.11 Taxes...................................................21
SECTION 3.12 Material Contracts......................................22
SECTION 3.13 [Intentionally Omitted].................................22
SECTION 3.14 [Intentionally Omitted].................................22
SECTION 3.15 [Intentionally Omitted].................................23
SECTION 3.16 [Intentionally Omitted].................................23
SECTION 3.17 [Intentionally Omitted].................................23
SECTION 3.18 Finders' Fees...........................................23
SECTION 3.19 Opinion of Financial Advisors...........................23
SECTION 3.20 Board Recommendation....................................23
SECTION 3.21 Vote Required; No Appraisal Rights......................23
SECTION 3.22 [Intentionally Omitted].................................23
SECTION 3.23 Investment Company Act of 1940..........................23
SECTION 3.24 Hart-Scott-Rodino Antitrust Improvements Act of 1976....23
SECTION 3.25 State Takeover Statutes.................................24
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF RECKSON,
RECKSON OP AND BUYER
SECTION 4.1 Corporate Existence and Power...........................24
SECTION 4.2 Authorization...........................................24
SECTION 4.3 Consents and Approvals; No Violations...................25
SECTION 4.4 Capitalization..........................................26
SECTION 4.5 SEC Documents...........................................26
SECTION 4.6 Financial Statements....................................27
SECTION 4.7 [Intentionally Omitted].................................27
SECTION 4.8 Joint Proxy Statement; Form S-4 Registration
Statement; Other Information............................27
SECTION 4.9 Absence of Material Adverse Changes, etc................27
SECTION 4.10 Taxes...................................................27
SECTION 4.11 Compliance with Laws....................................28
SECTION 4.12 Environmental Matters...................................28
SECTION 4.13 Real Property...........................................30
SECTION 4.14 Litigation..............................................32
SECTION 4.15 Finders' Fees...........................................32
SECTION 4.16 Share Ownership; Other Ownership........................33
SECTION 4.17 Investment Company Act of 1940..........................33
SECTION 4.18 Hart-Scott-Rodino Antitrust Improvements Act of 1976....33
SECTION 4.19 Financing...............................................33
SECTION 4.20 Authorization for Class B Stock.........................33
SECTION 4.21 Board Recommendation....................................33
SECTION 4.22 Required Vote of Reckson Stockholders...................34
SECTION 4.23 Opinion of Financial Advisor............................34
SECTION 4.24 Buyer's Operations......................................34
SECTION 4.25 Surviving Entity After the Merger.......................34
SECTION 4.26 Reckson and Buyer Knowledge.............................34
ARTICLE V
COVENANTS
SECTION 5.1 Conduct of the Company..................................35
SECTION 5.2 Conduct of Reckson......................................40
SECTION 5.3 Stockholders' Meetings; Joint Proxy Material............41
SECTION 5.4 No Solicitation of Transactions by the Company..........42
SECTION 5.5 Access to Information; Confidentiality Agreement........43
SECTION 5.6 Voting of Shares of Company Preferred Stock.............45
SECTION 5.7 Director and Officer Liability..........................45
SECTION 5.8 Reasonable Best Efforts; Cooperation....................47
SECTION 5.9 Certain Filings.........................................48
SECTION 5.10 [Intentionally Omitted].................................48
SECTION 5.11 Public Announcements....................................48
SECTION 5.12 Further Assurances......................................48
SECTION 5.13 Employee Matters........................................48
SECTION 5.14 Transfer Taxes..........................................49
SECTION 5.15 Advice of Changes.......................................49
SECTION 5.16 Guaranty................................................50
SECTION 5.17 Form S-4 Registration Statement.........................50
SECTION 5.18 Blue Sky Permits........................................50
SECTION 5.19 Listing.................................................50
SECTION 5.20 Affiliates..............................................51
ARTICLE VI
CONDITIONS TO THE MERGER
SECTION 6.1 Conditions to Each Party's Obligations..................51
SECTION 6.2 Conditions to the Company's Obligations.................51
SECTION 6.3 Conditions to Obligations of Reckson and Buyer..........52
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.............................................54
SECTION 7.2 Effect of Termination...................................55
SECTION 7.3 Fees and Expenses.......................................56
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices.................................................57
SECTION 8.2 Survival of Representations and Warranties..............59
SECTION 8.3 Interpretation..........................................59
SECTION 8.4 Amendments, Modification and Waiver.....................59
SECTION 8.5 Successors and Assigns..................................60
SECTION 8.6 Specific Performance....................................60
SECTION 8.7 Governing Law...........................................60
SECTION 8.8 Severability............................................60
SECTION 8.9 Third Party Beneficiaries...............................61
SECTION 8.10 Entire Agreement........................................61
SECTION 8.11 Counterparts; Effectiveness.............................61
SECTION 8.12 Litigation Trust; CPRs..................................61
Exhibits
- --------
Exhibit A - Form of Reckson's Articles Supplementary
Exhibit B-1 - Form of Indenture
Exhibit B-2 - Form of Resolution
<PAGE>
Table of Defined Terms
Term Page No.
- ---- --------
1940 Act:.....................................................................23
1997 Plan:....................................................................17
Access Limitation Date:.......................................................43
Active Subsidiary:............................................................18
Adverse Recommendation Event:..................................................1
affiliate(s):.................................................................57
Amended Return:...............................................................39
Applicable Break-Up Fee:......................................................55
Articles of Incorporation:....................................................14
Articles of Merger:............................................................3
associates:...................................................................57
Base Amount:..................................................................55
Break-Up Fee Ruling:..........................................................55
Buyer OP Unit:.................................................................5
Buyer Operating Partnership:...................................................2
Buyer:.........................................................................1
Buying Entities:..............................................................14
Cash Election Shares:..........................................................4
Cash Election:.................................................................4
Cash Proration Factor:.........................................................8
Certificate of Merger:.........................................................3
Certificates:.................................................................10
Chairman:.....................................................................38
Class B Stock Number:..........................................................7
Class B Stock:.................................................................1
Cleanup:......................................................................28
Closing Date:.................................................................13
Closing:......................................................................13
Code:..........................................................................2
Commitment:...................................................................21
Committee:....................................................................38
Company Acquisition Agree ments:..............................................42
Company Acquisition Proposal:.................................................42
Company By-laws:..............................................................14
Company Common Stock:..........................................................1
Company Disclosure Schedule:..................................................13
Company Joint Ventures:.......................................................17
Company Leased Real Property:.................................................16
Company Leases:...............................................................16
Company OP Cash Election Units:................................................4
Company OP Cash Election:......................................................4
Company OP Unit:...............................................................2
Company Operating Partnership Agreement:......................................17
Company Operating Partnership:.................................................2
Company Owned Real Property:..................................................16
Company Permitted Liens:......................................................16
Company Preferred Stock:.......................................................2
Company Real Property:........................................................17
Company SEC Documents:........................................................19
Company Securities:...........................................................17
Company Space Lease:..........................................................17
Company Special Meeting:......................................................40
Company Stock Option:.........................................................13
Company:.......................................................................1
Company's Representatives:....................................................43
Continuing Employees:.........................................................47
Costs:........................................................................44
CPR:..........................................................................60
Crescent Litigation:..........................................................60
Crescent:......................................................................3
Deal Litigation:..............................................................31
Delaware Secretary of State:...................................................3
DLLCA:.........................................................................1
Effective Time:................................................................3
Election Date:.................................................................6
Environmental Claim:..........................................................28
Environmental Laws:...........................................................28
ERISA Affiliate:..............................................................36
ERISA:........................................................................36
Excess Shares:................................................................11
Exchange Act:.................................................................16
Exchange Agent:................................................................6
Exchange Fund:................................................................11
Expense Amount:...............................................................55
Financing:....................................................................32
Form of Election:..............................................................6
Form S-4 Registration Statement:..............................................48
Fractional Notes:..............................................................5
Funding Notice:...............................................................40
GAAP:.........................................................................19
Governmental Entity:..........................................................16
Guarantees:....................................................................1
Hazardous Materials:..........................................................28
HSR Act:......................................................................23
include:......................................................................57
includes:.....................................................................57
including:....................................................................57
Indemnifiable Claim:..........................................................44
Indemnitees:..................................................................44
Indenture:.....................................................................1
Independent Counsel:..........................................................45
Initial Sale:..................................................................2
Interim Period:...............................................................39
Joint Proxy Statement:........................................................41
knowledge of the Company:.....................................................57
Lenders:......................................................................42
Licenses:.....................................................................14
Lien:.........................................................................18
made available:...............................................................57
Maryland Department:...........................................................3
Material Adverse Effect:......................................................14
Maximum Amount:...............................................................45
Merger Consideration:..........................................................4
Merger:........................................................................1
Merrill Lynch:................................................................22
Metropolitan Agreement:.......................................................40
MGCL:..........................................................................1
New York Courts:..............................................................59
Non-Cash Proration Factor:.....................................................9
Non-Electing Securities:.......................................................8
Non-Electing Shares:...........................................................4
Non-Electing Units:............................................................4
Notes:.........................................................................1
NYSE:..........................................................................7
OP Merger:.....................................................................1
Outside Termination Date:.....................................................52
Permits:......................................................................27
Person:.......................................................................12
Qualifying Income:............................................................55
reasonable best efforts:......................................................57
Reckson Common Stock:..........................................................2
Reckson Confidentiality Agreement:............................................42
Reckson Disclosure Schedule:..................................................24
Reckson Leased Real Property:.................................................29
Reckson Leases:...............................................................29
Reckson OP:....................................................................1
Reckson Owned Real Property:..................................................29
Reckson Permitted Liens:......................................................29
Reckson Preferred Stock:......................................................25
Reckson Real Property:........................................................30
Reckson Rent Roll:............................................................31
Reckson SEC Documents:........................................................26
Reckson Space Lease:..........................................................31
Reckson Special Meeting:......................................................40
Reckson:.......................................................................1
REIT Requirements:............................................................55
REIT:..........................................................................2
Release:......................................................................28
Representation Letter:.........................................................2
Resolution:....................................................................1
Schedule:.....................................................................39
SEC:..........................................................................19
Securities Act:...............................................................16
Share Issuance Approval:......................................................33
Share Issuance:...............................................................33
Special Dividend:..............................................................5
Standstill Date:..............................................................39
Stock Purchase Agreement:......................................................2
Subsidiary:...................................................................18
Surviving Entity...............................................................3
Tax Return:...................................................................27
Taxes:........................................................................12
Termination Year:.............................................................55
TIA:..........................................................................16
Tower Articles Supplementary:..................................................2
Tower Preferred Stock:........................................................17
Transactions:..................................................................1
Transfer Taxes:...............................................................48
Trust:........................................................................60
WARN Act:.....................................................................47
without limitation:...........................................................57
<PAGE>
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 I
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 1.07. 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 1.09. 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 II
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 III
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,(ii) 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 IV
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. ss.
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 V
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 VI
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 VII
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 VIII
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
<PAGE>
Exhibit A
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.
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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.
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(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,
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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,
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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
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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
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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
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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
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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
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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.
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(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.
<PAGE>
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
<PAGE>
Exhibit B
RECKSON OPERATING PARTNERSHIP, L.P.,
Issuer
and
RECKSON ASSOCIATES REALTY CORP.,
Guarantor
to
------------------------------------,
Trustee
---------------
INDENTURE
---------------
Dated as of __________ ___, 199_
Debt Securities
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
ss.310(a)(1) 607
(a)(2) 607
(b) 608
ss.312(a) 701
(b) 702
(c) 702
ss.313(a) 703
(b)(2) 703
(c) 703
(d) 703
ss.314(a) 704
(c)(1) 102
(c)(2) 102
(e) 102
(f) 102
ss.316(a) (last sentence) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
ss.317(a)(1) 503
(a)(2) 504
(b) 1003
ss.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 310
to and including 317 are a part of and govern every qualified
indenture, whether or not physically contained herein.
<PAGE>
Table of Contents
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions................................................ 2
Act .................................................................2
Additional Amounts ..................................................2
Affiliate ...........................................................2
Annual Service Charge ...............................................3
Authenticating Agent ................................................3
Authorized Newspaper ................................................3
Bearer Security .....................................................3
Board of Directors ..................................................3
Board Resolution ....................................................3
Business Day ........................................................3
Code ................................................................3
Commission ..........................................................3
Common Stock ........................................................3
Consolidated Income Available for Debt Service ......................3
Consolidated Net Income .............................................4
Conversion Event ....................................................4
Corporate Trust Office ..............................................4
Corporation .........................................................4
Coupon ..............................................................4
Currency ............................................................4
CUSIP number ........................................................4
Defaulted Interest ..................................................4
Dollars .............................................................4
Euro ................................................................4
European Monetary System ............................................4
European Union ......................................................4
Event of Default ....................................................5
Exchange Act ........................................................5
Foreign Currency ....................................................5
GAAP ................................................................5
General Partner .....................................................5
Government Obligations ..............................................5
Guarantee ...........................................................5
Guaranteed Securities ...............................................5
Guarantor ...........................................................5
Guarantor's Board of Directors ......................................5
Guarantor's Board Resolution ........................................6
Guarantor's Officers' Certificate ...................................6
Guarantor Request ...................................................6
Holder ..............................................................6
Indebtedness ........................................................6
Indenture ...........................................................6
Independent Public Accountants ......................................6
Indexed Security ....................................................7
Interest ............................................................7
Interest Payment Date ...............................................7
Issuer ..............................................................7
Issuer Request ......................................................7
Judgment Currency ...................................................7
Legal Holiday .......................................................7
Lien ................................................................7
Maturity ............................................................7
New York Banking Day ................................................7
Office ..............................................................7
Officers' Certificate ...............................................8
Opinion of Counsel ..................................................8
Original Issue Discount Security ....................................8
Outstanding .........................................................8
Paying Agent ........................................................9
Permitted Debt ......................................................9
Person ..............................................................9
Place of Payment ....................................................9
Predecessor Security ................................................9
Redemption Date ....................................................10
Redemption Price ...................................................10
Registered Security ................................................10
Regular Record Date ................................................10
Required Currency ..................................................10
Responsible Officer ................................................10
Security Register" .................................................10
Special Record Date ................................................10
Stated Maturity ....................................................10
Subsidiary .........................................................10
Total Assets .......................................................11
Total Unencumbered Assets ..........................................11
Trust Indenture Act ................................................11
Trustee ............................................................11
Undepreciated Real Estate Assets ...................................11
United States ......................................................11
United States Alien ................................................11
Unsecured Debt .....................................................11
U.S. Depository or Depository ......................................12
Vice President .....................................................12
Voting Stock .......................................................12
Section 102. Compliance Certificates and Opinions. ........................12
Section 103. Form of Documents Delivered to Trustee. ......................12
Section 104. Acts of Holders. .............................................13
Section 105. Notices, etc., to Trustee and Issuer and Guarantor. ..........15
Section 106. Notice to Holders of Securities; Waiver. .....................15
Section 107. Language of Notices. .........................................16
Section 108. Conflict with Trust Indenture Act. ...........................16
Section 109. Effect of Headings and Table of Contents. ....................16
Section 110. Successors and Assigns. ......................................16
Section 111. Separability Clause. .........................................17
Section 112. Benefits of Indenture. .......................................17
Section 113. Governing Law. ...............................................17
Section 114. Legal Holidays. ..............................................17
Section 115. Counterparts. ................................................17
Section 116. Judgment Currency. ...........................................17
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally. ..........................................18
Section 202. Form of Trustee's Certificate of Authentication. ..........18
Section 203. Securities in Global Form. ................................19
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series. .....................21
Section 302. Currency; Denominations. ..................................24
Section 303. Execution, Authentication, Delivery and Dating. ...........24
Section 304. Temporary Securities. .....................................26
Section 305. Registration, Transfer and Exchange. ......................26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. .........30
Section 307. Section 307. Payment of Interest and Certain
Additional Amounts; Rights to Interest and Certain
Additional Amounts Preserved...............................31
Section 308. Persons Deemed Owners. ....................................33
Section 309. Cancellation. .............................................34
Section 310. Computation of Interest. ..................................34
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge. ...............................34
Section 402. Defeasance and Covenant Defeasance. .......................36
Section 403. Application of Trust Money. ...............................40
ARTICLE FIVE
REMEDIES
Section 501. Events of Default. ........................................40
Section 502. Acceleration of Maturity; Rescission and Annulment. .......43
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee. ...............................................44
Section 504. Trustee May File Proofs of Claim. .........................45
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons. ....................................45
Section 506. Application of Money Collected. ...........................46
Section 507. Limitations on Suits. .....................................46
Section 508. Unconditional Right of Holders to Receive Principal
and any Premium, Interest and Additional Amounts...........47
Section 509. Restoration of Rights and Remedies. .......................47
Section 510. Rights and Remedies Cumulative. ...........................47
Section 511. Delay or Omission Not Waiver. .............................47
Section 512. Control by Holders of Securities. .........................48
Section 513. Waiver of Past Defaults. ..................................48
Section 514. Waiver of Stay or Extension Laws. .........................48
Section 515. Undertaking for Costs .....................................49
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee. ................................49
Section 602. Notice of Defaults. .......................................50
Section 603. Not Responsible for Recitals or Issuance of Securities. ...51
Section 604. May Hold Securities. ......................................51
Section 605. Money Held in Trust. ......................................51
Section 606. Compensation and Reimbursement. ...........................51
Section 607. Corporate Trustee Required; Eligibility. ..................52
Section 608. Resignation and Removal; Appointment of Successor. ........52
Section 609. Acceptance of Appointment by Successor. ...................54
Section 610. Merger, Conversion, Consolidation or Succession to
Business...................................................55
Section 611. Appointment of Authenticating Agent. ......................56
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...................................... 58
Section 702. Preservation of Information; Communications to Holders. ...58
Section 703. Reports by Trustee. .......................................59
Section 704. Reports by Issuer and Guarantor. ..........................59
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Issuer May Consolidate, Etc., Only on Certain Terms. ......60
Section 802. Successor Person Substituted for Issuer. ..................60
Section 803. Guarantor May Consolidate, Etc., Only on Certain Terms. ...61
Section 804. Successor Person Substituted for Guarantor. ...............61
Section 805. Assumption by Guarantor. ..................................62
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders. .......62
Section 902. Supplemental Indentures with Consent of Holders. ..........63
Section 903. Execution of Supplemental Indentures. .....................65
Section 904. Effect of Supplemental Indentures. ........................65
Section 905. Reference in Securities to Supplemental Indentures. .......65
Section 906. Conformity with Trust Indenture Act. ......................65
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium, Interest and
Additional Amounts. .......................................65
Section 1002. Maintenance of Office or Agency. ..........................66
Section 1003. Money for Securities Payments to Be Held in Trust. ........67
Section 1004. Limitations on Incurrence of Debt. ........................68
Section 1005. Additional Amounts. .......................................70
Section 1006. Maintenance of Properties. ................................70
Section 1007. Insurance. ................................................71
Section 1008. Existence. ................................................71
Section 1009. Waiver of Certain Covenants. ..............................71
Section 1010. Issuer Statement as to Compliance; Notice of Certain
Defaults. .................................................71
Section 1011. Guarantor Statement as to Compliance; Notice of
Certain Defaults. .........................................72
Section 1012. Maintenance of Total Unencumbered Assets. .................72
Section 1013. [Intentionally Omitted.] ..................................72
Section 1014. Payment of Taxes and Other Claims. ........................72
Section 1015. Provision of Financial Information. .......................73
Section 1016. Prohibition on Guarantor's Acquisition of Assets.
...................Error! Bookmark not defined.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article. .................................73
Section 1102. Election to Redeem; Notice to Trustee. ....................73
Section 1103. Selection by Trustee of Securities to be Redeemed. ........74
Section 1104. Notice of Redemption. .....................................74
Section 1105. Deposit of Redemption Price. ..............................76
Section 1106. Securities Payable on Redemption Date. ....................76
Section 1107. Securities Redeemed in Part. ..............................77
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article. .................................77
Section 1202. Satisfaction of Sinking Fund Payments with Securities. ....77
Section 1203. Redemption of Securities for Sinking Fund. ................78
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article. .................................78
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article. .....................................79
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called. ................79
Section 1502. Call, Notice and Place of Meetings. .......................79
Section 1503. Persons Entitled to Vote at Meetings. .....................80
Section 1504. Quorum; Action. ...........................................80
Section 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings. ..............................................81
Section 1506. Counting Votes and Recording Action of Meetings. ..........82
ARTICLE SIXTEEN
GUARANTEE
Section 1601. Guarantee. ................................................82
<PAGE>
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 otherwise 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 date 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 Additional Amounts pursuant to Section 1005, includes such
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.
"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, the 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 (i)
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, non-contingent 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 acting in 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 date 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 its 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. 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. 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 that the 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 treat 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 _________, ________________, 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) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(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 are 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-1 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 any 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 made, 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
are 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 its 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 the 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 (if 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 are 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(1)(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 (ii)
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 402(3) 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 the 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 otherwise 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 least 25% 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 are
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 then 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 delivery 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.
Any 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 the 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 (1) or (2)
of this Section, as the case may be.
(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
<PAGE>
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(1) and
permitted by Section 901(1)), 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 _______, ______________, 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 ________, _____________, 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 ____________, _______________ 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 not, 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 five 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 501.
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 15(d) of the 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 rate 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 are 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 from 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 fund 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 1501, 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(1), 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.
<PAGE>
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]
<PAGE>
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]
<PAGE>
STATE OF ________________)
: ss.:
COUNTY OF ______________)
On the _____ 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]
Exhibit 10.2
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 I.
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 II
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 III
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(k).
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 IV
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 7, 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 V
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 VI
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]
<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:
Title:
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:
Title:
<PAGE>
Exhibit A
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, liquida tion 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.
<PAGE>
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 Corpo
ration 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 ex change 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 Janu
ary, 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 commenc ing
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 determina
tion 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 para
graph (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 Metropoli
tan 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
account ing ledgers of any accounting or bookkeeping entry which
indicates, pursuant to an authorization of a dividend or other
distribution by the Board of Direc tors, 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 simulta
neously 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 liquida
tion, 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 de clared) 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 involun
tary, 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 respec tive 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 Prefer ence 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 divi dends,
if any, from the Trigger Date to the date fixed for redemption (the "Redemp
tion 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 corre sponding 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 redemp tion 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 Redemp tion 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 re deemed, 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 Conver sion 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 limita tion, 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
redemp tion 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 re
deemed (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 Divi
dend 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 surren dered and
such notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of Com mon
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 surren dered 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
determi nation of shareholders entitled to receive such dividend or
distribution or at the opening of business on the day following the
day on which such subdivi sion, 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 Com mon 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 follow ing 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
Com mon 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 men tioned below less the
then fair market value (as determined by the Corpora tion'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
denomi nator 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 Securi ties),
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 adjust ment 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 accor dance 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 Com mon 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
calcula tions 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 addi tion 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 (includ
ing, 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
Transac tion 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 distribu
tion) 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 adjust ment 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 conver sion of all outstanding Series A Preferred Shares not
theretofore converted. For purposes of this paragraph (k), the number of Common
Shares that shall be deliver able 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 deliv
ered 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
Corpora tion 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
redemp tion 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 distribut able 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 hereinaf ter
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 stock holders 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 re quired by Section 2-211(b) of the
Corporations and Associa tions 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
condi tions 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 be
tween 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 Cor
poration (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 princi pal 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 re strictions 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) Con structively Own shares of Equity Stock that
would cause the Corporation to Constructively Own 9.9%
or more of the own ership interests in a tenant of the
Corporation's, the Operating Partnership's or a
Subsidiary's real property, within the mean ing 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 immedi ately 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
Presi dent 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
Exhibit 10.3
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
METROPOLITAN PARTNERS LLC
A DELAWARE LIMITED LIABILITY COMPANY
(Dated as of December 8, 1998)
<PAGE>
Table of Contents
Page
----
ARTICLE I
DEFINITIONS 1
1.1 Definitions...................................................... 1
ARTICLE II
FORMATION, PURPOSE AND DEFINITIONS
2.1 Continuation of Limited Liability Company........................ 8
2.2 Name............................................................. 8
2.3 Principal Office of the Company.................................. 8
2.4 Purpose.......................................................... 8
2.5 Term............................................................. 9
ARTICLE III
CONTRIBUTIONS AND CAPITAL ACCOUNTS
3.1 Capital Contribution............................................. 9
3.2 Capital Accounts................................................. 10
3.3 Withdrawal of Capital............................................ 10
3.4 Additional Capital Contributions................................. 10
3.5 Interest on Capital Contributions................................ 10
3.6 Limitation of Liability of Member................................ 10
3.7 Transferred Capital Accounts; Adjustments........................ 11
3.8 Allocations...................................................... 11
ARTICLE IV
DISTRIBUTIONS
4.1 Withdrawals and Distributions in General......................... 11
4.2 Distributions to Members......................................... 11
4.3 Limitations on Distributions..................................... 12
4.4 Restrictions on Distributions.................................... 13
ARTICLE V
MANAGEMENT OF THE COMPANY
5.1 Rights and Obligations of Members; Representatives............... 13
5.2 Management of Company Business: Voting........................... 15
5.3 Number, Tenure and Qualifications................................ 16
5.4 Board Meetings................................................... 16
5.5 Committees....................................................... 17
5.6 Management Company............................................... 18
5.7 Executive Committee.............................................. 18
5.8 Maintenance of Loan to Value Ratio............................... 18
ARTICLE VI
TRANSFER OF MEMBERSHIP INTERESTS
6.1 Restriction on Transfer.......................................... 19
6.2 Conditions Applicable to Transfers............................... 19
6.3 Admission of Additional Members.................................. 20
6.4 No Right to Withdraw............................................. 20
ARTICLE VII
DISSOLUTION
7.1 Events Triggering Dissolution.................................... 20
7.2 Winding-Up....................................................... 21
7.3 Cancellation of Certificate...................................... 21
ARTICLE VIII
ACCOUNTING AND FISCAL MATTERS
8.1 Fiscal Year...................................................... 21
8.2 Books and Records................................................ 22
8.3 Allocation of Income or Loss..................................... 22
8.4 Tax Matters Partner.............................................. 22
ARTICLE IX
REDEMPTION RIGHT
9.1 Redemption Right................................................. 22
ARTICLE X
CONVERSION/TRANSFER RIGHT
10.1 Conversion/Transfer Right........................................ 22
10.2 Conversion of Class A Preferred Membership Interest to Class B
Common Membership Interest....................................... 23
10.3 Transfer of Class A Preferred Membership Interest to Reckson..... 23
ARTICLE XI
INDEMNIFICATION
11.1 Company Indemnification of Indemnities........................... 24
11.2 Member Indemnification of Company and Other Members.............. 26
ARTICLE XII
TOWER MERGER
12.1 Cooperative Efforts.............................................. 26
12.2 Expenses......................................................... 26
12.3 Assurance of Parties............................................. 27
12.4 Reckson Indemnification Obligations.............................. 27
12.5 Crescent Indemnification Obligations............................. 27
12.6 Distribution to Crescent Upon Failure of Merger.................. 27
ARTICLE XIII
GENERAL
13.1 Notices.......................................................... 28
13.2 Further Assurances............................................... 28
13.3 Waiver........................................................... 28
13.4 Reaffirmation of Representations................................. 29
13.5 Severability..................................................... 29
13.6 Additional Remedies.............................................. 29
13.7 Governing Law.................................................... 29
13.8 Entire Agreement................................................. 29
13.9 Benefits of Agreements; Successors and Assigns................... 29
13.10 Heading.......................................................... 29
13.11 Counterparts..................................................... 29
Exhibits
Exhibit A -- Schedule of Members and Capital Contributions Upon Date of
Execution of Agreement and Plan of Merger
Exhibit B -- Certificate of Formation
Exhibit C -- Initial Board of Member Representatives
Exhibit D -- Allocations
<PAGE>
AMENDED AND RESTATED
OPERATING AGREEMENT OF
METROPOLITAN PARTNERS LLC
A DELAWARE LIMITED LIABILITY COMPANY
This AMENDED AND RESTATED OPERATING AGREEMENT OF METROPOLITAN PARTNERS
LLC, a Delaware limited liability company (the "Company") entered into and
effective as of December 8, 1998 (the "Agreement"), is made by and among
Reckson Operating Partnership, L.P., a Delaware limited partnership ("Reckson"
or the "Class B Common Member") and Crescent Real Estate Equities Limited
Partnership, a Delaware limited partnership ("Crescent" or the "Class A
Preferred Member" and, together with Reckson, the "Members").
RECITAL
WHEREAS, the Members previously formed the "Company pursuant to that
certain Certificate of Formation dated and filed on July 2, 1998 in the office
of the Secretary of State of Delaware (as amended by the Certificate of
Amendment to the Certificate of Formation dated July 7, 1998, and filed on July
8, 1998 in the Office of the Secretary of State of Delaware to change the name
of the Company from Eiffel, LLC to Metropolitan Partners LLC), and that certain
Operating Agreement dated as of July 2, 1998 (the "Initial Agreement"); and
WHEREAS, the Members desire to amend and restate in its entirety the
Initial Agreement to (i) provide for the conversion of Crescent's membership
interest in the Company into a convertible, preferred Class A membership
interest, and (ii) make conforming changes to various provisions of the Initial
Agreement to reflect the revised agreement among the Members with respect to the
terms and conditions of the Company's management and the respective rights and
obligations of the Members.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto, intending legally to be
bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms have
-----------
the following meanings:
"Act" means the Delaware Limited Liability Company Act, as amended from
---
time to time.
"Adjusted Capital Account" means the Capital Account maintained for
--------------------------
each Member as of the end of each fiscal year (i) increased by any amounts which
such Member is obligated to restore pursuant to any provision of the Agreement
or is treated as being obligated to restore pursuant to Regulations Section
1.704-1(b)(2)(ii)(c) or is deemed to be obligated to restore pursuant to the
penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5)
and (ii) decreased by the items described in Regulations Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-l(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account is intended to comply with
the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be
interpreted consistently therewith.
"Adjusted Capital Account Deficit" means, with respect to any Member,
---------------------------------
the deficit balance, if any, in such Member's Adjusted Capital Account as of the
end of the relevant fiscal year.
"Affiliate" means with respect to any Member (or Mack-Cali as the case
---------
may be) (i) any party owning in excess of a ten percent (10%) beneficial
interest in a Member (or Mack-Cali as the case may be), (ii) any spouse, parent,
sibling and lineal descendant of a Member (or Mack-Cali as the case may be) or a
party described in (i) above, (iii) any trust for the benefit of a party
described in (i) or (ii) above or (iv) any corporation, partnership or other
entity directly or indirectly controlling, controlled by or under common control
with such Member (or Mack-Cali as the case may be) or a party described in (i),
(ii) or (iii) above. For purposes of this definition, control shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether by ownership of
voting securities, by contract or otherwise.
"Agreed Value" means, with respect to any property contributed by a
-------------
Member to the Company, an amount equal to (i) the Gross Asset Value of the
Capital Contribution determined as of the date of such contribution, less (ii)
the amount of any and all liabilities securing such contributed property that
the Company is considered to assume or take subject to with respect to such
property under Code Section 752 or the Regulations promulgated thereunder. The
Gross Asset Value of Reckson's Capital Contribution to be made on the Merger
Date is the value set forth in Section 3.1.
"Agreement" means this Amended and Restated Operating Agreement, as the
---------
same from time to time may be amended, modified, supplemented or restated.
"Agreement and Plan of Merger" means that certain Agreement and Plan of
----------------------------
Merger dated on or about the date hereof by and among Tower, Reckson, Reckson
Realty and the Company.
"Bankruptcy" of a Member shall be deemed to have occurred when (a) the
----------
Member commences a voluntary proceeding seeking liquidation, reorganization or
other relief under any bankruptcy, insolvency or other similar law now or
hereafter in effect, (b) the Member is adjudged as bankrupt or insolvent, or a
final and nonappealable order for relief under any bankruptcy, insolvency or
similar law now or hereafter in effect has been entered against the Member, (c)
the Member executes and delivers a general assignment for the benefit of the
Member's creditors, (d) the Member files an answer or other pleading admitting
or failing to contest the material allegations of a petition filed against the
Member in any proceeding of the nature described in clause (b) above, (e) the
Member seeks, consents to or acquiesces in the appointment of a trustee,
receiver or liquidator for the Member or for all or any substantial part of the
Member's properties, (f) any proceeding seeking liquidation, reorganization or
other relief under any bankruptcy, insolvency or other similar law now or
hereafter in effect has not been dismissed within sixty (60) days after the
commencement thereof, (g) the appointment without the Member's consent or
acquiescence of a trustee, receiver or liquidator has not been vacated or stayed
within sixty (60) days of such appointment, or (h) an appointment referred to in
clause (g) is not vacated within sixty (60) days after the expiration of any
such stay.
"Board" means the Board of Managers consisting of Representatives
-----
elected as described in Section 5.1 with the management rights set forth in
Sections 5.2 through 5.7.
"Budget" shall mean an annual capital and operating budget of the
------
Company and the Partnership.
"Capital Account" has the meaning set forth in Section 3.2.
---------------
"Capital Contribution" means, with respect to any Member, the amount of
--------------------
money and the Agreed Value of any non-cash property contributed to the Company
by such Member.
"Carrying Value" means, with respect to a property contributed by a
---------------
Member to the Company or a property that has been revalued pursuant to Section
1.6 of Exhibit D, the Gross Asset Value of such property reduced (but not below
zero) by all Depreciation with respect to such property charged to the Members'
Capital Accounts and (ii) with respect to any other Company property, the
adjusted basis of such property for federal income tax purposes, all as of the
time of determination. The Carrying Value of any property shall be adjusted from
time to time in accordance with Section 1.6 of Exhibit D hereof, and to reflect
changes, additions or other adjustments to the Carrying Value for improvements
and dispositions and acquisitions of Company properties, as deemed appropriate
by the Board.
"Certificate" means the Certificate of Formation to be filed with
-----------
respect to the Company in the office of the Delaware Secretary of State, a copy
of which is attached hereto as Exhibit B, as the same may be from time to time
amended, modified or supplemented in accordance with the provisions of this
Agreement.
"Class A Preferred Capital" means the aggregate Capital Contributions
--------------------------
made to the Company by the Class A Preferred Member pursuant to Section 3.1.
"Class A Preferred Member" means Crescent and its permitted successors
------------------------
and assigns.
"Class A Preferred Membership Interest" means the ownership interest of
-------------------------------------
the Class A Preferred Member in the Company, including any and all benefits to
which the Class A Preferred Member may be entitled as provided in this Agreement
and under applicable laws, together with all obligations of the Class A
Preferred Member to comply with the terms and conditions of this Agreement;
provided, however, that the Class A Preferred Membership Interest shall not be
deemed outstanding after the Conversion/Transfer Date.
"Class B Common Member(s)" means Reckson and its permitted successors
-------------------------
and assigns and any other Persons who may be admitted to the Company as Class B
Common Members pursuant to the terms hereof.
"Class B Common Membership Interest" means the ownership interest of
------------------------------------
the Class B Common Member(s) in the Company, including any and all benefits to
which the Class B Common Member(s) may be entitled as provided in this Agreement
and under applicable laws, together with all obligations of the Class B Common
Member(s) to comply with the terms and conditions of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended and in
----
effect from time to time, as interpreted by the applicable regulations
thereunder. Any reference therein to a specified section or sections of the Code
shall be deemed to include a reference to any corresponding provision of future
law.
"Company" means the limited liability company governed by this
-------
Agreement.
"Company Minimum Gain" means "partnership minimum gain" as defined in
--------------------
Regulations Section 1.704-2(b)(2), and the amount of Company Minimum Gain, as
well as any net increase or decrease in Company Minimum Gain, for a fiscal year
shall be determined in accordance with the rules of Regulations Section
1.704-2(d).
"Consent" means, with respect to any Member, its prior written
-------
approval.
"Conversion Value" means the Class A Preferred Capital amount, plus all
----------------
accrued, unpaid Preference thereon, through the Conversion/Transfer Date.
"Conversion/Transfer Date" has the meaning set forth in Section 10.1.
------------------------
"Crescent" means Crescent Real Estate Equities Limited Partnership.
--------
"Crescent Equities" has the meaning set forth in Section 2.4.
-----------------
"Depreciation" means, for each taxable year, an amount equal to the
------------
federal income tax depreciation, amortization, or other cost recovery deduction
allowable with respect to an asset for such year, except that if the Carrying
Value of an asset differs from its adjusted basis for federal income tax
purposes at the beginning of such year or other period, Depreciation shall be an
amount which bears the same ratio to such beginning Carrying Value as the
federal income tax depreciation, amortization, or other cost recovery deduction
for such year bears to such beginning adjusted tax basis; provided, however,
that if the federal income tax depreciation, amortization, or other cost
recovery deduction for such year is zero, Depreciation shall be determined with
reference to such beginning Carrying Value using any reasonable method selected
by the Board of Member Representatives.
"Election Notice" has the meaning set forth in Section 10.1.
---------------
"Fiscal Year" has the meaning given in Section 8.1.
-----------
"General Partner" means the Company and any substitute or additional
----------------
General Partner(s) of the Partnership duly admitted pursuant to the terms of the
Partnership Agreement, or, where the context so requires, any successor General
Partner(s) acting pursuant to the provisions of the Partnership Agreement.
"Gross Asset Value" shall mean, with respect to any asset of the
-------------------
Company, such asset's adjusted basis for Federal income tax purposes, except
that the initial Gross Asset Value of any asset contributed by a Member shall be
equal to the gross fair market value of such asset as determined by the Board.
"Indemnitee" shall mean a Member, its Affiliates and any officer,
----------
director employee thereof and any Representative.
"Initial Agreement" has the meaning set forth in the recitals to this
-----------------
Agreement.
"Interest" means a Member's ownership interest in the Company.
--------
"Limited Partners" means any Person named as a Limited Partner on
-----------------
Exhibit A attached to the Partnership Agreement as such Exhibit may be amended
from time to time, or any substituted Limited Partner or additional Limited
Partner duly admitted to the Partnership pursuant to the terms of the
Partnership Agreement.
"Mack-Cali" has the meaning set forth in Section 6.1(b).
---------
"Member or Members" means the persons listed on attached Exhibit A, and
-----------------
any person admitted to the Company as a Member in accordance with Article VI.
The Members shall have the power, rights and privileges provided to them in this
Agreement.
"Member Nonrecourse Debt" means "partner nonrecourse debt" as defined
------------------------
in Regulations Section 1.704-2(b)(4).
"Member Nonrecourse Debt Minimum Gain" means an amount, with respect to
------------------------------------
each Member Nonrecourse Debt, equal to the Company Minimum Gain that would
result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
"Member Nonrecourse Deductions" means "partner nonrecourse deductions"
------------------------------
as defined in Regulations Section 1.704-2(i)(2), and the amount of Member
Nonrecourse Deductions with respect to a Member Nonrecourse Debt for a fiscal
year shall be determined in accordance with the rules of Regulations Section
1.704-2(i)(2).
"Merger Date" means the consummation date of the Tower Merger.
-----------
"Net Income" or "Net Loss" shall mean an amount equal to the Company's
---------- --------
taxable income or loss for any taxable year, determined in accordance with
Section 703(a) of the Code (for this purpose, all items of income, gain, loss or
deduction required to be stated separately pursuant to Section 703(a)(1) of the
Code shall be included in taxable income or loss) with the following
adjustments:
(1) Any income of the Company that is exempt from federal
income tax and not otherwise taken into account in computing Net Income
or Net Loss shall be added to such taxable income or loss;
(2) Any expenditures of the Company described in Section
705(a)(2)(B) of the Code or treated by Section 705(a)(2)(B) of the Code
pursuant to Section 1.704-1(b)(2)(iv)(1) of the Treasury Regulations
and not otherwise taken into account in computing Net Income or Net
Loss shall be subtracted from such taxable income or loss;
(3) In the event the Carrying Value of any Company asset is
adjusted pursuant to Section 1.6 of Exhibit D hereof, the amount of
such adjustment shall be taken into account as gain or loss from the
disposition of such asset for purposes of computing Net Income or Net
Loss;
(4) Gain or loss resulting from any disposition of property
with respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the Carrying Value of the
property disposed of, notwithstanding that the adjusted tax basis of
such property differs from its Carrying Value;
(5) To the extent an adjustment to the adjusted tax basis of
any Company asset pursuant to Sections 734(b) or 743(b) of the Code is
required pursuant to Section 1.704-1 (b)(2)(iv)(m)(4) of the Treasury
Regulations to be taken into account in determining Capital Accounts as
a result of a distribution other than a complete liquidation of a
Member's Membership Interest in the Company, the amount of such
adjustment shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases
the basis of the asset) from the disposition of the asset and shall be
taken into account for purposes of computing Net Income or Net Loss;
(6) In lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such taxable income
or loss, there shall be taken into account Depreciation of such taxable
year, computed in accordance with the definition of "Depreciation;" and
(7) Any item specially allocated under Section 1.5, 1.7, 1.9,
1.11, 1.12 or 1.13 of Exhibit D shall not be taken into account in
computing Net Income or Net Loss.
"New York City" means the borough of Manhattan.
-------------
"Nonrecourse Liability" has the meaning set forth in Regulations
---------------------
Section 1.752-1(a)(2).
"Notice" has the meaning set forth in Section 6.1(b).
------
"Offering" means a transaction involving the Class B Common Membership
--------
Interests in connection with which a registration statement is filed under the
Securities Act of 1933 or the Securities Exchange Act of 1934, or in which Class
B Common Membership Interests are converted into or exchanged for, or the
holders thereof receive the right to convert into or exchange for, securities
registered under the Securities Act of 1933 or the Securities Exchange Act of
1934.
"Partner" or "Partners" means, unless the context in which the term is
------- --------
used requires otherwise, the General Partner and the Limited Partners.
"Partnership" means Metropolitan Operating Partnership, L.P., a
-----------
Delaware limited partnership.
"Partnership Agreement" means the Agreement of Limited Partnership
----------------------
dated as of the date hereof by and between the General Partner and the Limited
Partners, and the Exhibits and Schedules thereto, and any amendments thereto
from time to time.
"Person" means any individual, corporation, partnership (general or
------
limited), association, limited liability company, trust, estate or other entity.
"Preference" means a cumulative, annually compounding rate of return on
----------
the Class A Preferred Capital amount outstanding from time to time equal to
seven and one-half percent (7.5%).
"Reckson" means Reckson Operating Partnership, L.P.
-------
"Reckson Realty" has the meaning set forth in Section 2.4.
--------------
"Redemption Value" means an amount that will provide the Class A
-----------------
Preferred Member with an internal rate of return of nine and one-half percent
(9.5%) on its Class A Preferred Capital for the period commencing on the Merger
Date and ending on the closing date for the redemption of the Class A Preferred
Membership Interest pursuant to Section 9.1.
"REIT" means a real estate investment trust under Sections 856 through
----
860 of the Code.
"Reminder Notice" has the meaning set forth in Section 10.1.
---------------
"Representative" has the meaning set forth in Section 5.1 hereof.
--------------
"RSI" has the meaning set forth in Section 5.1(a).
---
"Tower" means Tower Realty Trust, Inc.
-----
"Tower Merger" shall mean the mergers contemplated by the Agreement and
------------
Plan of Merger.
"Tower Preferred Shares" means the preferred shares of Tower to be
------------------------
purchased by the Company as more fully set forth in the Agreement and Plan of
Merger.
"Transfer" has the meaning set forth in Section 6.1.
--------
"Venture" has the meaning set forth in Section 2.4.
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ARTICLE II
FORMATION, PURPOSE AND DEFINITIONS
2.1 Continuation of Limited Liability Company. The Members hereby
--------------------------------------------
agree to continue the Company as a limited liability company pursuant to the
provisions of the Delaware Limited Liability Company Act (the "Act") and upon
the terms set forth in this Agreement.
2.2 Name. Pursuant to the terms of this Agreement, the Members intend
----
to carry on a business for profit under the name Metropolitan Partners LLC and
such name shall be used at all times in connection with the business and affairs
of the Company. The Company may conduct its activities under any other
permissible name designated by the Board of Member Representatives (the
"Board"). The Board shall be responsible for complying with any registration
requirements in the event an alternate name is used.
2.3 Principal Office of the Company. The principal office of the
--------------------------------
Company shall be c/o 225 Broadhollow Road, New York, New York 11747, or at such
other location as the Board, as a matter of reasonable discretion, may
determine, provided, however, that upon the opening of an office in New York
City, such New York City office shall become the principal office of the
Company. The registered office of the Company shall be c/o Corporation Trust
Company, 1209 Orange Street, Wilmington, Delaware 19801. The registered agent of
the Company shall be The Corporation Trust Company and the Board may, from time
to time, change such agent and office by appropriate filings as required by law.
2.4 Purpose. The Members agree that the Company and the Partnership
-------
(together, the "Venture") (i) shall acquire Tower and Tower Realty Operating
Partnership, L.P. on the terms and subject to the conditions set forth in the
Agreement and Plan of Merger and (ii) may acquire a direct or indirect interest
in any other properties or mortgages secured by real property (or entities that
own properties or mortgages secured by real property) located in New York City.
The purpose of the Company is to act as the general partner of the Partnership
and to maintain full, exclusive and complete responsibility and discretion in
the management and control of the business and affairs of the Partnership and to
make all decisions affecting the Partnership's business and affairs to the
extent set forth in the Partnership Agreement. The Company shall have the
authority to do all things necessary or advisable in order to accomplish such
purposes. Notwithstanding the foregoing, the Members acknowledge that it is
their intent that the Company business shall be limited to and conducted in such
a manner as to permit each of Crescent Real Estate Equities Company (together
with any successor by merger, consolidation or otherwise, "Crescent Equities")
and Reckson Associates Realty Corp. (together with any successor by merger,
consolidation or otherwise, "Reckson Realty") to at all times to qualify as a
REIT (unless such entity voluntarily terminates its REIT status pursuant to its
declaration of trust or would no longer qualify as a REIT solely for one or more
reasons other than and unrelated to the Company business). The Members further
agree that the Company shall not take, or refrain from taking, any action which
(i) could adversely affect the ability of either Crescent Equities or Reckson
Realty to achieve or maintain qualification as a REIT (unless such entity
voluntarily terminates its REIT status pursuant to its declaration of trust or
would no longer qualify as a REIT solely for one or more reasons other than and
unrelated to such action (or inaction)), (ii) could subject either Crescent
Equities or Reckson Realty to any additional taxes under Section 857 or Section
4981 of the Code, or (iii) could violate any law or regulation of any
governmental body or agency having jurisdiction over either Crescent Equities or
Reckson Realty or its securities, unless such action (or inaction) shall have
been specifically consented to by such entity in writing. The provisions of the
preceding two sentences shall be deemed to be for the benefit of Crescent
Equities and Reckson Realty as well as the Company and its Members. Each of
Crescent Equities and Reckson Realty shall have a direct right of action, as a
third party beneficiary or otherwise, against the Company for any breach of such
provisions, and such provisions may not be amended, modified or waived without
the express written consent of Crescent Equities and Reckson Realty.
2.5 Term. The term of this Company commenced on July 2, 1998, and
----
shall last until December 31, 2048, unless the Company is earlier dissolved in
accordance with the provisions of Article VII of this Agreement or the Act.
ARTICLE III
CONTRIBUTIONS AND CAPITAL ACCOUNTS
3.1 Capital Contribution. Upon the date of execution of the Agreement
---------------------
and Plan of Merger, in form and substance reasonably satisfactory to Crescent
(including the release to be provided to Crescent), the Class A Preferred Member
shall make a Capital Contribution of cash in the amount of $10,000,000. On the
Merger Date, the Class A Preferred Member shall make a Capital Contribution of
cash in the amount of $75,000,000. Upon the date of execution of the Agreement
and Plan of Merger, the Class B Common Member shall make a Capital Contribution
of cash in the amount of $30,000,000. On the Merger Date, the Class B Common
Member shall make a Capital Contribution of all other consideration (whether in
the form of cash or Reckson Realty class "B" exchangeable shares or debt
securities of Reckson) required in order to consummate the Tower Merger (other
than any consideration obtained from the financing of the Tower assets and
applied to consummate the Tower Merger) and pay all of the closing costs
relating thereto which are properly allocated to the Company pursuant to Section
12.2. The aggregate Capital Contributions of Reckson made pursuant to the
preceding sentence shall be valued at an amount equal to the excess of (a) the
sum of (1) the product of (x) the total shares of Tower and partnership units of
Tower Realty Operating Partnership, L.P. exchanged in the Tower Merger, and (y)
$21, and (2) all closing costs relating to the Tower Merger which are funded by
Reckson to the Company pursuant to the preceding sentence, over (b) the sum of
(I) $115,000,000 and (II) the amount of any consideration obtained from the
financing of the Tower assets and applied to consummate the Tower Merger.
Notwithstanding anything to the contrary contained above in this Section 3.1,
Crescent shall be required to fund into escrow its $75,000,000 Capital
Contribution three (3) business days prior to the planned Merger Date upon
receipt of written notice from Reckson that Reckson will fund its Capital
Contribution required on the Merger Date in the full amount set forth above in
this Section 3.1 and that Reckson expects that all conditions precedent to the
Tower Merger will either be met to Reckson's satisfaction or waived by Reckson.
The funds that Crescent places into escrow shall be held in an interest-bearing
account by a title company selected by Reckson and shall be released to the
Company on the Merger Date; provided, however, that Crescent shall have the
right to direct that the escrow agent return to Crescent the funds contributed
by it only if (i) the Tower Merger is not consummated within fifteen (15) days
following the date upon which Crescent places the funds into escrow, or (ii) the
meeting of the shareholders of Tower that is required to approve the Tower
Merger is deferred following the date that Crescent places the funds into
escrow. Upon the release of the funds contributed by Crescent, Reckson shall pay
to Crescent an amount equal to the difference between the interest earned in the
account (which interest shall belong to Crescent) and ten and three-tenths
percent (10.3%) for each day that the funds were held in escrow. In the event
that the funds are returned to Crescent because the Tower Merger was not
consummated within fifteen (15) days following the date upon which Crescent
placed such funds into escrow, Crescent shall be required to place into escrow,
under the same terms and conditions as set forth above, its $75,000,000 Capital
Contribution upon receipt of subsequent written notice from Reckson, which
notice shall be in the form set forth above; provided, however, that if Crescent
has placed funds into escrow and had such funds returned to it four (4) times,
Crescent shall not be required to contribute any funds following any subsequent
notice from Reckson.
3.2 Capital Accounts. A single Capital Account shall be established,
-----------------
determined and maintained for each Member in accordance with the provisions of
Exhibit D attached hereto.
3.3 Withdrawal of Capital. A Member shall not be entitled to withdraw
---------------------
any part of such Member's Capital Account or to receive any distribution from
the Company, except as provided in this Agreement. The Board shall, however,
have the authority, in its reasonable discretion, to return to the Members all
or part of the Capital Contributions of the Members, provided that such payments
are made to the Members in accordance with Section 4.2(b)(2) or Sections 7.2(c)
and 7.2(d), as applicable.
3.4 Additional Capital Contributions. No Member shall be required to
--------------------------------
make any additional capital contribution to the Company.
3.5 Interest on Capital Contributions. Except for the Preference
----------------------------------
payable to the Class A Preferred Member, no interest shall be due from the
Company on any Capital Contribution of any Member.
3.6 Limitation of Liability of Member. The Members shall have no
---------------------------------
liability or obligation for any debts, liabilities or obligations of the Company
beyond the Member's respective Capital Contribution or obligation to make a
Capital Contribution, except as expressly required by this Agreement or
applicable law. A Member who rightfully received any distribution of cash or
property from the Company is nevertheless liable to the Company only to the
extent now or hereafter provided by the Act.
3.7 Transferred Capital Accounts; Adjustments. Upon the transfer of
------------------------------------------
all or any part of the interest of a Member in the Company, the Capital Account
of the transferor Member that is attributable to the transferred interest shall
carry over to the transferee Member.
3.8 Allocations. Allocations of items of the Company's income, gain,
-----------
loss or deduction shall be made among the Partner's as provided for in Exhibit D
attached hereto.
ARTICLE IV
DISTRIBUTIONS
4.1 Withdrawals and Distributions in General. Except as otherwise
-----------------------------------------
provided in Articles IX and X with respect to the Class A Preferred Membership
Interest, no Member shall have any right to demand the return of its Capital
Contribution.
4.2 Distributions to Members.
------------------------
(a) The Company shall make quarterly distributions (or more
frequently in the reasonable discretion of the Board) to the Members of
all cash flow and capital event proceeds relating to the properties
owned by the Partnership (less reasonable reserves established by the
Board, which reserves shall be reviewed prior to any distribution and
shall be adequate to fund the reasonably anticipated capital
expenditure requirements of the Company during the twelve months
following the date of such distribution and the working capital
requirements during the six months following the date of such
distribution, and which reserves shall be based upon the then existing
capital and operating expenses of the Company). The Members hereby
acknowledge that it is the intent of the Company, subject to available
cash, to declare and pay the Preference quarterly.
(b) Except as otherwise provided in Sections 7.2(c) and 7.2(d)
with respect to distributions of liquidating proceeds, distributions
shall be made to the Members as follows:
(1) Cash flow (other than any insurance and
condemnation proceeds, proceeds received from the financing,
refinancing, sale or other disposition of any asset of the
Company or other capital event proceeds) shall be
distributed among the Members as follows:
(i) All amounts received by the Company
prior to the Merger Date with respect to the Tower Preferred
Shares shall be distributed in full upon receipt twenty-five
percent (25%) to the Class A Preferred Member and
seventy-five percent (75%) to the Class B Common Member.
(ii) All other cash flow shall be
distributed as follows:
(A) First, to the Class A Preferred
Member in an amount equal to its accrued, unpaid Preference;
and
(B) Thereafter, to the Class B
Common Member(s).
(2) Any insurance and condemnation proceeds, proceeds
received from the financing, refinancing, sale or other
disposition of any asset of the Company or other capital
event proceeds shall be distributed among the Members as
follows:
(i) During any period that the Class A
Preferred Membership Interest is outstanding, no such
proceeds may be distributed by the Company; provided
however, that the Company may elect to use such proceeds to
redeem in full (but not in part) the Class A Preferred
Membership Interest in accordance with Article IX of the
Agreement.
(ii) During any period that the Class A
Preferred Membership Interest is not outstanding, such
proceeds shall be distributed to the Class B Common
Member(s).
(c) Except as otherwise provided in Section 12.6, the Board
may cause the Company to make distributions in kind only with the
consent of Crescent. In the event that at any time or from time to time
the Board makes a distribution of property other than cash, such
property shall be deemed to be sold for its fair market value on the
date of such distribution, and any gain or loss associated with such
deemed sale shall be included in determining Net Income or Net Loss for
the applicable Fiscal Year.
(d) Notwithstanding any other provision of this Agreement, the
Board is authorized to take any action that it determines to be
necessary or appropriate to cause the Company to comply with any
federal, state, local or foreign withholding requirement with respect
to any payment or distribution by the Company to any Member or other
Person. All amounts so withheld, and, in the manner determined by the
Board, amounts withheld with respect to any payment or distribution by
any Person to the Company, shall be treated as distributions to the
Members to which such amounts would have been distributed (under this
Section 4.2 or Article VII, as the case may be) but for the
withholding. If any such withholding requirement with respect to any
Member exceeds the amount distributable to such Member under this
Section 4.2 or Article VII, such Member and any successor or assignee
with respect to such Member's Interest will indemnify and hold harmless
the Board and the Company for such excess amount or such withholding
requirement, as the case may be (including interest on such amount at
the prime rate as published in The Wall Street Journal, plus 200 basis
points, compounded semiannually).
4.3 Limitations on Distributions. Notwithstanding any provision to the
----------------------------
contrary contained in this Agreement (other than Section 12.6), the Company, and
the Board on behalf of the Company, shall not be required to make a distribution
to any Member on account of its interest in the Company if such distribution
would violate Section 18-607 of the Act or other applicable law.
4.4 Restrictions on Distributions. The foregoing provisions of this
-----------------------------
Article IV to the contrary notwithstanding, no distribution shall be made (i) if
such distribution would violate any contract or agreement to which the Company
is then a party or any law, rule, regulation, order or directive of any
governmental authority then applicable to the Company, (ii) to the extent that
the Board, in its reasonable discretion, determines that any amount otherwise
distributable should be retained by the Company to pay, or to establish a
reserve for the payment of, any liability or obligation of the Company, whether
liquidated, fixed, contingent or otherwise, (iii) to hedge an existing
investment or (iv) to the extent that the Board, in its reasonable discretion,
determines that the cash available to the Company is insufficient to permit such
distribution.
ARTICLE V
MANAGEMENT OF THE COMPANY
5.1 Rights and Obligations of Members; Representatives.
--------------------------------------------------
(a) The Members of the Company shall be Reckson and Crescent,
and their permitted successors and assigns and any other Person admitted to the
Company pursuant to the terms hereof. The Class B Common Members shall have the
right to elect all of the Representatives to the Board, as more fully set forth
in Section 5.1(e) below. The Representatives on the Board shall act as the
"managers" of the Company under Section 18-402 of the Act, subject to the
provisions set forth below. Notwithstanding anything to the contrary contained
in this Agreement, (a) the consent of Crescent (which shall not be unreasonably
withheld) shall be required for (i) any amendment to the Agreement or the
Partnership Agreement that adversely affects the rights of or allocations or
distributions to any Member in any manner, (ii) any transaction between (a) the
Company or the Partnership and (b) Reckson or any of its Affiliates or any
entity controlled by an executive officer of Reckson or any of its Affiliates,
provided, however, that Reckson may make additional Capital Contributions with
respect to its Class B Common Membership Interest from time to time without such
consent if the price paid by Reckson in respect of such additional Capital
Contribution is at a proportional value at least equivalent to the price paid by
Reckson for its Interest determined with reference to the value set forth in
Section 3.1, that the Company may retain Reckson Service Industries, Inc. and
any entities in which RSI holds an interest (referred to hereinafter
collectively as "RSI") as provided in Section 5.2(c) below, (iii) the admission
of any additional Member to the Company (or the admission by the Company, in its
capacity as sole General Partner of the Partnership, of any additional Partner
to the Partnership), unless (x) the price paid by such additional Member (or
Partner) for its Interest (or partnership interest) is at a proportional value
at least equivalent to the price paid by Reckson for its Interest, determined
with reference to the value set forth in Section 3.1 (and, if the Interest (or
partnership interest) has any preference rights over the Class B Common
Member(s), the Interest (or partnership interest) issued to such Person results
in a "reasonable economic benefit" to the Class B Common Member(s) in their
capacity as such), (y) with respect to any non-cash contribution by such
additional Member (or Partner), the price paid for such Interest (or partnership
interest) is based upon the fair market value of the Company (and Partnership)
assets as well as the fair market value of the assets being contributed, and (z)
such additional Member (or Partner) is not an Affiliate of Reckson or an entity
controlled by an executive officer of Reckson or any of its Affiliates, (iv) any
sale or other disposition of all or any substantial portion of the assets of the
Company (including without limitation its partnership interest in the
Partnership) or the Partnership or merger of the Company or the Partnership with
or into another entity, provided, however, that no consent of the Members shall
be required for the sale or other disposition of any properties located in
Florida or Arizona acquired in connection with the Tower Merger or for sales or
other dispositions of other properties that do not in the aggregate exceed
$100,000,000, (v) any dissolution of the Company or the Partnership, (vi) any
Offering, (vii) any Transfer or series of Transfers by Reckson of its Interest,
if such Transfers in the aggregate result in the Transfer of more than fifty
percent (50%) of its Interest, provided that a merger by Reckson or Reckson
Realty with another Person shall not be deemed a Transfer of its Interest, or
(viii) any amendment to Section 2.4 or this Section 5.1(a), and (b) during the
period that the Class A Preferred Membership Interest is outstanding, the
consent of the Class A Preferred Member shall be required for any issuance of
additional preferred ownership interests in the Company or the Partnership
ranking senior to or pari passu with the Class A Preferred Membership Interest.
(b) Composition. Except as otherwise required by law or as
-----------
otherwise specifically set forth in this Agreement, the business and affairs of
the Company shall be managed by the Board, which will closely oversee the
day-to-day business and affairs of the Company until such time as it deems it
appropriate to designate such duties to management. Unless delegated by the
Board, all management powers over the business and affairs of the Company shall
be exclusively vested in the Board. The Board shall consist of not less than
three (3) and not more than fifteen (15) individuals (each a "Representative"),
which number may be determined from time to time by resolution of the Board.
(c) Initial Appointments: The initial Board shall consist of
---------------------
the persons set forth on the Initial Board of Member Representatives Schedule
attached hereto as Exhibit C. Each such person shall be decreed duly appointed
to the Board as of the date of this Agreement.
(d) Replacement of Representatives. The Class B Common Members
------------------------------
by majority vote shall be entitled at any time to remove any of the
Representatives for cause. If at any time a vacancy is created on the Board by
reason of the death, removal or resignation of any of the Representatives, the
Board agrees, within thirty (30) days of such occurrences, to approve and elect
Representatives designated to fill such vacancy or vacancies. A quorum for the
conducting of the business of the Company shall always consist of at least a
majority of the Representatives.
(e) Election of Board. Representatives to the Board shall be
-----------------
elected on an annual basis by a majority vote of the Class B Common Members.
Notwithstanding the foregoing, upon any conversion of Crescent's Class A
Preferred Membership Interest to a Class B Common Membership Interest pursuant
to Section 10.2, Crescent shall have rights to elect Representatives that are at
least as favorable on a proportional basis as the rights of any other Class B
Common Member; provided that, for so long as Crescent (or any successor of
Crescent by merger, consolidation or other similar transaction, unless such
successor owns, directly or indirectly, real property in New York City or the
New York-New Jersey-Connecticut tri-state area) retains at least 50 percent of
its original Class B Common Membership Interest, in all events Crescent (or such
successor) shall be entitled to elect at least one Representative to the Board.
5.2 Management of Company Business: Voting.
--------------------------------------
(a) The Board, acting by simple majority vote of a proper
quorum after a meeting called in accordance with Section 5.4, shall be solely
responsible for and empowered to conduct, without the consent or vote of the
Members, the management of the Company's business, with all rights and powers
generally conferred by law or necessary, advisable or consistent therewith
(subject to the limitations of Article II related to the stated purposes of the
Company and except for items that require the vote of one or more of the Members
as specifically set forth in Sections 4.2(c), 5.1(a), 6.2(c), 7.2 and 8.4 of
this Agreement or the Act), including, but not limited to, the following:
(i) any direct or indirect transaction or
transactions with Reckson, Crescent or any Affiliates thereof
or with entities with whom any of the foregoing have
contractual relations relating to the acquisition, leasing
and/or development of commercial real estate or any parties
with whom any of the foregoing have formed or agreed to form a
strategic alliance or competing business venture;
(ii) any direct or indirect transaction or
transactions (including, without limitation, any and all loans
from a Member to the Company other than loans made to the
Company by a Member as a result of the other Member's failure
to fund a capital contribution) in which Reckson, Crescent or
any of their respective Affiliates or any of the respective
representatives of any of the foregoing are self-interested;
(iii) the making of any major decision under the
Partnership Agreement, including the sale of any property,
acquisition of any property, financing or refinancing,
admission of limited partners in the Partnership and, subject
to Section 3.4, capital calls;
(iv) any transaction that would result in the
incurrence of debt by the Company or the Partnership (subject
to the provisions of Section 5.8);
(v) the acquisition, disposition (including without
limitation disposition of any properties located in Florida or
Arizona acquired in connection with the Tower Merger in
exchange for consideration which includes seller financing
provided by the Company) or financing of any property,
admission of additional limited partners of the Partnership,
admission of additional members of the Company or, subject to
Section 3.4, capital calls by the Partnership or the Company;
(vi) any amendment of the distribution provisions
set forth in Article IV hereof;
(vii) any withdrawal of the Company as general
partner of the Partnership; and
(viii) any material amendment of the Certificate or
this Agreement.
(b) Subject to the Member consent right set forth in Section
5.1(a), Reckson shall have the right to market services provided by its
Affiliates to the Partnership tenant base, provided, however, that no contract
shall be executed between the Partnership and such Affiliates without Board
approval.
(c) Notwithstanding anything to the contrary contained in
Section 5.1(a) or 5.2(b) above, the Company may retain RSI to perform services
for the Company without the consent of Crescent, provided that such services are
provided on commercially reasonable, customary, and arms-length terms for the
market in which the properties are located, and provided further that five (5)
days prior to the execution of any contract with RSI, Crescent receives from the
Company written notice of the terms of any such contract. If Crescent objects to
the terms of any contract between the Company and RSI, Crescent may request
arbitration under the rules of the American Arbitration Association in New York.
If an arbitrator determines that the terms of a challenged contract are not
commercially reasonable, customary, and arms-length terms for the market in
which the properties are located, then Reckson shall be liable to the Company
for all losses incurred by the Company as a result of entering into such
contract.
5.3 Number, Tenure and Qualifications. The officers of the Company
---------------------------------
shall be as determined from time to time by the Board. Officers need not be
residents of the State of Delaware nor Members.
5.4 Board Meetings.
--------------
(a) Date and Place of Meetings. Meetings of the Board for the
--------------------------
transaction of such business as may properly be brought before the Board shall
be held on such dates and at such times as may be determined by the Board. All
Board meetings shall be held at the principal place of business of the Company
or at such other place within or without the State of Delaware as shall be
specified in the notices thereof; provided that any or all Representatives may
participate in any such meeting by means of conference telephone or similar
communications equipment pursuant to Section 5.4(d).
(b) Notice of Board Meetings. Unless waived, all notices shall
------------------------
be in writing and shall state the place, date, time and purpose for which the
meeting is called, shall be delivered either personally, by facsimile, by
reputable overnight courier or by mail to each Representative not less than five
(5) business days nor more than thirty (30) days before the date of the meeting,
by or at the direction of the Board. If mailed, such notice shall be deemed to
be delivered as to any Representative when deposited in the United States mail
addressed to the Representative at its address as it appears on the books of the
Company, with postage prepaid. Attendance at the meeting shall be deemed a
waiver of the notice requirements set forth herein.
(c) Action by Written Consent. Except as otherwise provided by
-------------------------
law, any action required by the provisions of the Act or this Agreement to be
taken at a meeting of the Board may be taken without a meeting and without a
vote if a unanimous consent in writing, setting forth the action so taken, shall
be signed by all of the Representatives. Notice of any action taken without a
meeting shall be given to all Representatives promptly following the taking
thereof. Any action taken by the written consent of the Representatives shall
have the same force and effect as if taken by the Representatives at a Board
meeting.
(d) Telephonic Meetings. Representatives may participate in
--------------------
any meeting of the Board by means of a conference telephone or similar
communication equipment by which all Representatives participating in the
meeting can hear each other at the same time. Such participation shall
constitute presence in person at the meeting.
(e) Reimbursement. Each Representative shall reimbursed all of
-------------
its reasonable out of pocket travel expenses in connection with their attendance
at Board meetings.
(f) Attendance by Crescent at Board Meetings. Crescent shall
-----------------------------------------
have the right to send one or more representatives to regular meetings of the
Board, which regular meetings shall occur at least semi-annually, and to any
other meeting at which action is proposed to be taken outside of the ordinary
course of business of the Company, and to receive copies of all notices of
meetings of the Board and of all minutes of meetings of the Board, provided that
the Crescent representatives shall not have the right to vote on any matter.
Crescent shall receive notice of all Board meetings in accordance with Section
5.4(b). A successor or assign of Crescent (other than a successor by merger,
consolidation, or otherwise, unless such successor owns, directly or indirectly,
real property in New York City or the New York-New Jersey-Connecticut tri-state
area) shall not have the foregoing rights to notice of and attendance at Board
meetings. In addition, if Crescent purchases real property in New York City,
Crescent shall cease to have the foregoing rights to notice of and attendance at
Board meetings.
5.5 Committees.
----------
(a) The Board may, by resolution adopted by a majority of the
Representatives in office, establish one or more committees to serve at the
pleasure of the Board, consisting in each case of two or more Representatives,
and may designate one or more Representatives as alternate members of such a
committee. Any committee, to the extent provided hereunder or in the resolution
by which it is established, shall have and may exercise all of the powers and
authority of the Board except that a committee shall not have any power or
authority as to the following:
(i) The submission to Members of any action requiring
approval of Members under applicable law, as amended;
(ii) The creation or filling of vacancies in the
Board;
(iii) The adoption, amendment or repeal of this
Agreement;
(iv) The amendment or repeal of any resolution of the
Board that by its terms is amendable or repealable only by the
Board; and
(v) Action on matters committed by a resolution of
the Board to another committee of the Board.
In the absence or disqualification of a member and alternate member or members
of a committee, the member or members of the committee present at any meeting
and not disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another Representative to act at the meeting in place of the
absent or disqualified member.
(b) A majority of the Representatives appointed to a committee
shall constitute a quorum for the transaction of business, and the acts of a
majority of the Representatives appointed to a committee present and voting at a
meeting of the committee at which a quorum is present shall be the acts of the
committee.
(c) A committee may, by resolution, fix regular meeting dates
of which no notice need be given to members of the committee. Special meetings
of a committee may be held at the call of the chairman of the committee upon
such notice as is provided in this Agreement for special meetings of the Board.
Any action required or permitted to be taken at a meeting of the members of a
committee may be taken without a meeting if, prior or subsequent to the action,
a consent or consents in writing setting forth the action so taken shall be
signed by all the members of the committee and shall be filed with the Secretary
of the Company.
(d) All action taken by the committees shall be reported to
the Board not later than the next succeeding regular meeting of the Board.
5.6 Management Company. The Board will cause the Company or the
------------------
Partnership to delegate or subcontract management services (including accounting
and administrative services), subject to the approval of the Board.
5.7 Executive Committee. The Board may establish an executive
-------------------
committee to advise the Board regarding acquisition plans and strategies for the
Company (the "Executive Committee").
5.8 Maintenance of Loan to Value Ratio. Notwithstanding anything to
-----------------------------------
the contrary contained in this Agreement, the Company shall at all times
maintain a loan to value ratio that does not exceed sixty five percent (65%)
with respect to its aggregate indebtedness. It is understood that indebtedness
may be incurred by the Company on the Merger Date in order to finance a portion
of the consideration of the Tower Merger, subject to the foregoing.
ARTICLE VI
TRANSFER OF MEMBERSHIP INTERESTS
6.1 Restriction on Transfer.
-----------------------
(a) Except as provided in Section 6.1(b) below, Crescent may
freely directly or indirectly sell, assign, mortgage, hypothecate, transfer,
pledge, create a security interest in or lien upon, encumber, give, place in
trust, or otherwise voluntarily dispose of (collectively hereinafter sometimes
referred to as "Transfer") all or any portion of its Interest to any Person.
Reckson may freely Transfer all or any portion of its Interest; provided,
however, that (i) Reckson shall be required to obtain the consent of Crescent
under Section 5.1(a) to any Transfer (or series of Transfers) of its Interest,
if such Transfers in the aggregate result in the Transfer of more than fifty
percent (50%) of its Interest, provided, however, that a merger by Reckson or
Reckson Realty with another Person shall not be deemed a Transfer of its
Interest, and (ii) during the period that the Class A Preferred Membership
Interest is outstanding, Reckson shall at all times own at least a one percent
(1%) ownership interest in the Company as a Class B Common Member. In no event
may a Member Transfer its Interest unless such Member is simultaneously
transferring the same proportion of its interest in the Partnership to the same
Person. Any transaction by a Member in violation of the provisions of this
Section 6.1 shall, as between such Member on one hand and the Company and the
other Member(s) on the other hand, be null and void.
(b) Notwithstanding Section 6.1(a) above, in the event that
Crescent wishes to Transfer its Interest to Mack-Cali Realty Corporation or any
Affiliate thereof (hereinafter referred to collectively as "Mack-Cali"), Reckson
shall have a right of first refusal with respect to the proposed Transfer by
Crescent. Crescent shall give written notice to Reckson of the proposed terms of
the Transfer (the "Notice"). Pursuant to such right of first refusal, Reckson
shall have an option to purchase all, but not less than all, of the Crescent
Interest that is proposed to be transferred to Mack-Cali, at the price of the
proposed Transfer and on terms substantially equivalent to those set forth in
the Notice. The period of this option (the "Option Period") shall commence upon
Crescent sending the Notice and shall last for fifteen (15) days. Any such
option may be exercised by Reckson given notice thereof within the Option Period
to Crescent. In such event, the parties shall take all necessary steps and
cooperate in good faith to effect (within 30 days after the date on which the
Option Period expires) the purchase of the Interest by Reckson on the terms
described above. In the event that such first refusal option is not exercised
during the Option Period, Crescent may sell its Interest on the terms set forth
in the Notice during the 120 day period following the Option Period. If the
Interest is not so sold during such period, any subsequent Transfer shall be
subject to the provisions of this Section 6.1
6.2 Conditions Applicable to Transfers. Notwithstanding anything to
----------------------------------
the contrary contained in this Agreement:
(a) Any sale, assignment or transfer, whether direct or
indirect, of any Interest shall be made in full compliance with all applicable
statutes, law, ordinances, rules and regulations of all Federal, state and local
governmental bodies, agencies and subdivisions having jurisdiction over the
Company and its assets.
(b) No Transfers of the ownership interest of any Member shall
be binding upon the Company or any other Member unless and until (i) true copies
of instruments of transfer executed and delivered pursuant to or in connection
with such transfer shall have been delivered to the Board; (ii) the transferee
shall have delivered to the Board an executed and acknowledged assumption
agreement pursuant to which the transferee assumes to be bound by all of the
provisions of this Agreement (including, without limitation, if pursuant to the
provisions of this Agreement, the transferee is to become, as a result of such
transfer, a Member of the Company, an acknowledgment thereof); (iii) the
transferee shall have executed, acknowledged and delivered any instruments
required under the Act to effect the transfer.
(c) The transferor of an Interest shall remain liable after
such Transfer for all of its obligations under this Agreement (including without
limitation its indemnification obligations and its obligations under Article X),
unless otherwise agreed in writing by Crescent (in the event of a Transfer by
Reckson (or any successors or assigns of Reckson) or Reckson (in the event of a
Transfer by Crescent or any successors or assigns of Crescent) or by the Board
(in the event of a Transfer by any other Member).
(d) Upon any transfer of a portion of Crescent's Interest, all
consent and voting rights of Crescent shall be exercisable only by Crescent, but
shall no longer be exercisable by Crescent if Crescent shall retain less than 25
percent of its original Interest. Upon any transfer of Crescent's entire
Interest, all such consent and voting rights of Crescent shall be exercisable by
such transferee. Notwithstanding the foregoing, the right of Crescent to elect a
minimum of one Representative to the Board pursuant to the final clause of the
last sentence of Section 5.1(e) and the notice and meeting attendance rights of
Crescent under Section 5.4(f) shall be transferable as set forth therein.
6.3 Admission of Additional Members. Additional Members may be
----------------------------------
admitted to the Company by Reckson, provided that Reckson complies with the
requirements set forth in Section 5.1(a).
6.4 No Right to Withdraw. Except as otherwise specifically provided in
--------------------
Articles IX and X with respect to the Class A Preferred Member, and Transfers
made in accordance with Sections 6.1 and 6.2 hereof, no Member shall have the
right to withdraw from the Company.
ARTICLE VII
DISSOLUTION
7.1 Events Triggering Dissolution. The Company shall be dissolved
-----------------------------
upon:
(a) the agreement of the Members;
(b) any other event, which, under the Act, would cause the
dissolution of a company unless all of the Members
unanimously elect to continue the business of the
Company; or
(c) the Bankruptcy of a Member, at the option of the other
Member.
7.2 Winding-Up. Upon dissolution of the Company, the Board, or the
----------
Person or Persons approved by the prior written consent of Crescent and Reckson,
shall carry out the winding up of the Company's affairs and shall, within no
more than 30 days after completion of a final audit of the Company's books and
records (which shall be performed within 90 days of such termination), make
distributions, out of Company assets, in the following manner and order:
(a) to satisfaction (whether by payment or reasonable
provision therefor) of claims of all creditors of the Company (other than
Members);
(b) to satisfaction (whether by payment or reasonable
provision therefor) of claims of all creditors of the Company who are Members;
(c) to the redemption of the Class A Preferred Membership
Interest pursuant to Article IX hereof; and
(d) to payment and discharge pro rata of the respective
positive Capital Accounts of the Members after giving effect to any
contributions, allocations and reallocations pursuant to this Agreement.
Notwithstanding anything to the contrary contained above in this
Section 7.2, in the event that Crescent converts its Interest to a Class B
Common Membership Interest pursuant to Section 10.2, the Company shall, prior to
making any distributions of liquidation proceeds to the Members under Section
7.2(d), make a guaranteed payment to Crescent in an amount equal to the excess
(if any) of (i) the amount of liquidation proceeds that would be payable to
Crescent if the liquidating proceeds available for distribution under Section
7.2(d) were distributed as described in the first sentence of Section 1.9 of
Exhibit D, over (ii) the amount of liquidation proceeds payable to Crescent
under Section 7.2(d). The deduction to the Company for any guaranteed payment
made to Crescent pursuant to the preceding sentence shall be specially allocated
to the Members other than Crescent on a pro rata basis (in proportion to their
relative ownership interests), and shall reduce the Capital Accounts of such
Members prior to the distribution of liquidation proceeds under Section 7.2(d).
7.3 Cancellation of Certificate. Notwithstanding anything to the
-----------------------------
contrary in this Agreement, the existence of the Company as a separate legal
entity shall continue until the cancellation of the Certificate in accordance
with the Act.
ARTICLE VIII
ACCOUNTING AND FISCAL MATTERS
8.1 Fiscal Year. The fiscal year of the Company (the "Fiscal Year")
-----------
shall be the calendar year.
8.2 Books and Records. All books of account shall, at all times, be
-----------------
maintained in the principal office of the Company or at such other location as
agreed to by the Board. Upon reasonable written request for any purpose
reasonably related to the Member's interest as a Member, each Member shall have
the right, during ordinary business hours, to inspect and copy all accounts,
books, and other relevant Company documents at the requesting Member's expense.
Upon written request of any Member, the Board shall provide a list showing the
names, addresses, and ownership interests of all Members, and a copy of this
Agreement, as amended from time to time, and the Certificate of Formation.
8.3 Allocation of Income or Loss. Any income or loss incurred by the
----------------------------
Company for any Fiscal Year shall be allocated among the Members in accordance
with Exhibit D hereto.
8.4 Tax Matters Partner. Reckson shall be the "Tax Matters Partner"
-------------------
of the Company as described in Section 6231(a)(7) of the Code, provided,
however, that Reckson (i) shall consult on an ongoing basis with Crescent on all
material matters that Reckson handles in its capacity as tax matters partner,
(ii) shall not extend the statute of limitations or select a judicial forum to
challenge any determination of the Internal Revenue Service without the consent
of Crescent, and (iii) shall not, without the consent of Crescent (unless
Crescent Equities has voluntarily terminated its REIT status or would no longer
qualify as a REIT solely for one or more reasons other than and unrelated to
such tax matters), which consent will not be unreasonably withheld, settle or
decide any tax matters with the Internal Revenue Service that could (a) impact
the income or asset classification of an item under Section 856(c) of the Code,
(b) impact the ability of Crescent Equities to at all times qualify as a REIT,
or (c) subject Crescent Equities to additional taxes under Section 857 or 4981
of the Code.
ARTICLE IX
REDEMPTION RIGHT
9.1 Redemption Right. The Company shall have the right to redeem the
----------------
Class A Preferred Membership Interest of the Class A Preferred Member at any
time upon ten (10) days' prior written notice to the Class A Preferred Member in
exchange for a cash payment equal to the Redemption Value. The Company shall
redeem the Class A Preferred Membership Interest upon any dissolution of the
Company prior to making any distributions to Members under Section 7.2(d).
Effective upon the receipt by the Class A Preferred Member of such cash payment,
the Class A Preferred Member shall no longer be a Member of the Company and
shall have no further rights under this Agreement other than the indemnification
rights set forth in this Agreement.
ARTICLE X
CONVERSION/TRANSFER RIGHT
10.1 Conversion/Transfer Right. The Class A Preferred Member shall,
-------------------------
effective as of the second anniversary of the Merger Date (the
"Conversion/Transfer Date"), either (i) convert its Class A Preferred Membership
Interest into a Class B Common Membership Interest in accordance with Section
10.2, or (ii) transfer its Class A Preferred Membership Interest to Reckson in
exchange for shares of common stock of Reckson Realty in accordance with Section
10.3. The Class A Preferred Member shall provide written notice of its election
(the "Election Notice") to Reckson at least forty-five (45) days prior to the
Conversion/Transfer Date. If the Class A Preferred Member shall fail to provide
the Election Notice as aforesaid, Reckson may provide written notice to the
Class A Preferred Member (the "Reminder Notice") indicating that, unless the
Class A Preferred Member sends an Election Notice within five (5) days after
receipt of the Reminder Notice, the Class A Preferred Member shall be deemed to
have elected to convert its Class A Preferred Membership Interest into a Class B
Common Membership Interest. If the Class A Preferred Member does not send an
Election Notice within the time period specified in the preceding sentence, the
Class A Preferred Membership Interest shall be automatically converted into a
Class B Common Membership Interest in accordance with Section 10.2, effective as
of the Conversion/Transfer Date.
10.2 Conversion of Class A Preferred Membership Interest to Class B
-----------------------------------------------------------------
Common Membership Interest. If the Class A Preferred Member elects pursuant to
- --------------------------
Section 10.1(i) above to convert its Class A Preferred Membership Interest into
a Class B Common Membership Interest, the Class A Preferred Member shall, as of
the Conversion/Transfer Date, receive a Class B Common Membership Interest in
the Company. The percentage of the Class B Common Membership Interest in the
Company to be received by the Class A Preferred Member shall be determined based
on the ratio of (i) the Conversion Value to (ii) the sum of the Conversion Value
and the aggregate Capital Contributions of all other Class B Common Members as
of the Conversion/Transfer Date. The Members hereby agree to amend the
Agreement, effective as of the Conversion/Transfer Date, to reflect the issuance
of a Class B Common Membership Interest to Crescent (and the accompanying right
of Crescent to a proportionate share of all distributions and allocations made
by the Company to the Class B Common Members) and to provide tag-along rights
for Crescent with respect to any transfer of Reckson's Interest in the Company
and the partnership interest of Reckson in the Partnership similar to the
tagalong rights that were contained in Section 10.6 of the Initial Agreement
prior to amendment by this Agreement (and the tagalong rights that were provided
in section 17.1 of the Partnership Agreement prior to any amendment thereto).
10.3 Transfer of Class A Preferred Membership Interest to Reckson. If
-------------------------------------------------------------
the Class A Preferred Member elects pursuant to Section 10.1(ii) above to
transfer its Class A Preferred Membership Interest to Reckson, the Class A
Preferred Member shall, as of the Conversion/Transfer Date, receive common
shares of Reckson Realty under an effective registration statement of Reckson
Realty and listed on the principal stock exchange on which common shares of
Reckson Realty are traded at the time of the transfer. The number of common
shares of Reckson Realty to be received by the Class A Preferred Member shall be
determined by dividing the Conversion Value by $24.61 (adjusted, as appropriate,
to reflect any stock dividends, stock combinations, stock splits or similar
transactions with respect to the common shares of Reckson Realty that occur
subsequent to the date of this Agreement). Notwithstanding the foregoing,
Crescent may elect, in lieu of receiving common shares of Reckson Realty, to
receive limited partnership units of Reckson that are exchangeable into an
equivalent number of common shares of Reckson Realty, which common shares upon
exchange shall be under an effective registration statement of Reckson Realty
and listed on the principal stock exchange on which common shares of Reckson
Realty are traded at the time of the transfer. In case of any merger,
consolidation or similar transaction to which Reckson Realty is a party (other
than a merger, consolidation or similar transaction in which Reckson Realty is
the continuing corporation), Crescent shall have the right thereafter to receive
the kind and amount of securities, cash or other property receivable upon such
merger, consolidation, or similar transaction that Crescent would have received
had it exercised its transfer right under this Section 10.3 immediately prior to
the merger, consolidation or similar transaction. Effective upon such transfer
by the Class A Preferred Member, the Class A Preferred Member shall no longer be
a Member of the Company and shall have no further rights under this Agreement
other than the indemnification rights set forth in this Agreement.
ARTICLE XI
INDEMNIFICATION
11.1 Company Indemnification of Indemnities.
--------------------------------------
(a) To the fullest extent permitted by Delaware law, the
Company shall indemnify each Indemnitee from and against any and all losses,
claims, damages, liabilities, joint or several, expenses (including, without
limitation, reasonable attorneys' fees and other legal expenses), judgments,
fines, settlements, and other amounts arising from any and all claims, demands,
actions, suits or proceedings, civil, criminal, administrative or investigative,
that relate to the operations of the Company as set forth in this Agreement
(including without limitation claims that relate to the period prior to the
execution date of the Agreement and Plan of Merger, except that (i) the Company
shall not be obligated to indemnify Crescent with respect to any claim by Tower
or its stockholders or any claim arising from an alleged breach of the original
Agreement and Plan of Merger by and among Tower, Reckson Realty, Crescent
Equities and the Company, dated as of July 9, 1998, as amended, and (ii) the
Company shall not be obligated to indemnify a Member if such Member fails to
fully fund its Capital Contributions in accordance with Section 3.1), in which
such Indemnitee may be involved, or is threatened to be involved, as a party or
otherwise, except to the extent such Indemnitee (i) acted in bad faith, or with
gross negligence or willful misconduct, (ii) the Indemnitee actually received an
improper personal benefit in money, property or services or (iii) in the case of
any criminal proceedings, the Indemnitee had reasonable cause to believe that
the act or omission was unlawful. Without limitation, the foregoing indemnity
shall extend to any liability of any Indemnitee, pursuant to a loan guaranty
(except as may be otherwise agreed in writing) or otherwise for any indebtedness
of the Company or any Affiliate of the Company (including without limitation,
any indebtedness the Company has assumed or taken subject to), and the Board is
hereby authorized and empowered, on behalf of the Company, to enter into one or
more indemnity agreements consistent with the provisions of this Section in
favor of any Indemnitee having or potentially having liability for any such
indebtedness. Any indemnification pursuant to this Section shall be made only
out of the assets of the Company, and no Member shall have any obligation to
contribute to the capital of the Company, or otherwise provide funds, to enable
the Company to fund its obligations under this Section.
(b) Reasonable expenses incurred by an Indemnitee who is a
party to a proceeding shall be paid or reimbursed by the Company in advance of
the final disposition of the proceeding, upon receipt by the Company of (i) a
written affirmation of the Indemnitee of his or her good faith belief that the
standard of conduct for indemnification under this Section 11.1 has been met,
and (ii) an undertaking by or on behalf of the Indemnitee to repay such amount
if it shall be determined that the Indemnitee is not entitled to be indemnified
as authorized in paragraph (a) above.
(c) The indemnification provided by this Section shall be in
addition to any other rights to which any Indemnitee or any other Person may be
entitled under any agreement, pursuant to any vote of the Members, as a matter
of law or otherwise, and shall continue as to an Indemnitee who has ceased to
serve in such capacity unless otherwise provided in a written agreement pursuant
to which such Indemnities are indemnified.
(d) The Company may, but shall not be obligated to, purchase
and maintain insurance, on behalf of the Indemnities and such other Persons as
the Board shall determine, against any liability that may be asserted against or
expenses that may be incurred by such Person in connection with the Company's
activities, regardless of whether the Company would have the power to indemnify
such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section, the Company shall be deemed
to have requested an Indemnitee to serve as fiduciary of an employee benefit
plan whenever the performance by it or its duties to the Company also imposes
duties on, or otherwise involves services by, it to the plan or participants or
beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect
to an employee benefit plan pursuant to applicable law shall constitute fines
within the meaning of this Section; and actions taken or omitted by the
Indemnitee with respect to an employee benefit plan in the performance of its
duties for a purpose reasonably believed by it to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Company.
(f) In no event may an Indemnitee subject any of the Members
to personal liability by reason of the indemnification provisions set forth in
this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole
or in part under this Section because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section are for the benefit of the
Indemnities, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons. Any
amendment, modification or repeal of this Section or any provision hereof shall
be prospective only and shall not in any way affect the Company's liability to
any Indemnitee under this Section, as in effect immediately prior to such
amendment, modification, or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claims may arise or be asserted.
11.2 Member Indemnification of Company and Other Members. In the event
---------------------------------------------------
the Company or any Member is made a party to any litigation or otherwise incurs
any loss or expense as a result of or in connection with any other Member's
personal obligations or liabilities unrelated to Company business or due to the
bad faith, gross negligence, or willful misconduct of such other Member with
respect to the Company business, such other Member shall indemnify and reimburse
the Company or Member for all such loss and expense incurred, including
reasonable attorneys' fees, and the interest of such other Member in the Company
may be charged therefor. The liability of a Member under this Section shall not
be limited to such Member's interest in the Company, but shall be enforceable
against such Member personally. This indemnity shall be in addition to and shall
have no affect upon, any indemnity or similar arrangement entered into
separately by any Member or Affiliate thereof.
ARTICLE XII
TOWER MERGER
12.1 Cooperative Efforts. Reckson and Crescent will fully cooperate
-------------------
with one another and use their respective reasonable efforts, and will cause
their respective Affiliates to fully cooperate and use their respective
reasonable efforts, to successfully complete the consummation of the Tower
Merger. Each of Reckson and Crescent will, and will cause their respective
Affiliates to, make sufficient personnel available as necessary in connection
with the consummation of the Tower Merger.
12.2 Expenses. The Company shall pay all stamp, transfer, sales and
--------
other taxes and all other closing costs incurred in connection with the
consummation of the Tower Merger. In addition, the Company shall pay all of the
costs, fees and expenses (including, without limitation, fees and disbursements
of counsel) incurred by either Member with respect to the negotiation and
execution of the Agreement and Plan of Merger (and any predecessor agreements
thereto) and the consummation of the Tower Merger, including without limitation
its attorneys fees with respect to the negotiation and execution of the Initial
Agreement, this Agreement and the Partnership Agreement (including, but not
limited to, all fees and expenses of Shaw Pittman Potts & Trowbridge, Cahill
Gordon & Reindel, Brown & Wood LLP, Ernst & Young LLP, and Fried, Frank, Harris,
Shriver & Jacobson), except that Reckson shall be responsible for and pay the
Solomon Smith Barney fairness opinion fee. Notwithstanding the foregoing, each
Member shall make a cash Capital Contribution to the Company on the Merger Date
in addition to the Capital Contribution set forth in Section 3.1 to reimburse
the Company for all of the costs, fees and expenses (including, without
limitation, fees and disbursements of counsel) paid by the Company but incurred
by such Member with respect to the negotiation and execution of the Agreement
and Plan of Merger (and any predecessor agreements thereto) and the consummation
of the Tower Merger, including without limitation its attorneys fees with
respect to the negotiation and execution of the Initial Agreement, this
Agreement and the Partnership Agreement (including, but not limited to, in the
case of Crescent, all fees and expenses of Shaw Pittman Potts & Trowbridge and
Cahill Gordon & Reindel, and, in the case of Reckson, all fees and expenses of
Brown & Wood LLP and in respect of the litigation counsel of Fried, Frank,
Harris, Shriver & Jacobson); provided, however, that no Member shall be required
to reimburse the Company for the fees and expenses of Ernst & Young LLP or
Fried, Frank, Harris, Shriver & Jacobson with respect to negotiating the
Agreement and Plan of Merger.
12.3 Assurance of Parties. Each of the Members hereby represents and
--------------------
warrants that such Member has the financial means, or will have the financial
means, to fulfill, or cause its respective Affiliates to fulfill, the
obligations of the Partnership under the Agreement and Plan of Merger.
12.4 Reckson Indemnification Obligations. Reckson hereby agrees to
-----------------------------------
indemnify and hold harmless Crescent and its Affiliates from and against any and
all direct (but not consequential) losses, liabilities, claims, damages and
expenses incurred by Crescent or its Affiliates as a result of Reckson's or its
Affiliate's default under this Agreement, the Partnership Agreement, or the
Agreement and Plan of Merger with respect to the Tower Merger. In addition, in
the event that the Agreement and Plan of Merger is not consummated as a result
of a breach by Reckson or its Affiliates and/or the Company of their
representations, warranties or agreements contained in the Agreement and Plan of
Merger, the Company and Reckson shall be jointly and severally liable to
immediately repurchase the Interest of Crescent in the Company for a cash price
equal to (i) the aggregate amount of Capital Contributions made to the Company
by Crescent pursuant to Section 3.1, (ii) Crescent's costs of collection, plus
(iii) interest on the amounts listed in (i) through (ii) above (from the date
the cash Capital Contributions were made, or the date the collection costs were
incurred, as the case may be) at a rate of one percent (1%) per month.
12.5 Crescent Indemnification Obligations. In the event that Crescent
-------------------------------------
fails to fully fund its entire $85,000,000 cash Capital Contribution as required
under Section 3.1, Crescent's Class A Preferred Membership Interest shall be
considered liquidated damages and all right, title and interest of Crescent in
its Class A Preferred Membership Interest shall automatically transfer to
Reckson. This constitutes the sole and exclusive remedy of Reckson with respect
to Crescent's failure to fully fund its Capital Contribution as required under
Section 3.1.
12.6 Distribution to Crescent Upon Failure of Merger. Notwithstanding
-----------------------------------------------
anything to the contrary set forth in this Agreement, in the event that the
Tower Merger fails to occur, twenty-five percent (25%) of the Tower Preferred
Shares held by the Company shall be immediately distributed in kind to Crescent
unless Crescent has failed, upon valid notice properly having been given, to
make its Capital Contribution prior to the anticipated Merger Date in accordance
with Section 3.1. Effective upon such distribution to Crescent, Crescent shall
no longer be a Member of the Company and shall have no further rights under this
Agreement other than the indemnification rights set forth in this Agreement.
ARTICLE XIII
GENERAL
13.1 Notices. All notices, consents or other communications required
-------
or permitted to be given to or otherwise be made to any party to this Agreement
shall be deemed to be sufficient if contained in a written instrument delivered
by hand, first Class Mail (registered or certified, return receipt requested)
telex, facsimile or overnight air courier guaranteeing next day delivery and
shall be deemed delivered (i) on the day it is hand delivered or faxed, (ii) on
the day after it is out by overnight mail or (iii) three days after it is mailed
by registered or certified mail, as follows:
(a) If to Reckson:
Reckson Operating Partnership, L.P.
225 Broadhollow Road
Melville, New York 11747
Attention: Jason M. Barnett, Esq., Senior Vice
President and General Counsel
(b) If to Crescent:
Crescent Real Estate
Equities Limited Partnership
777 Main Street
Suite 2100
Fort Worth, Texas 76102
Attention: David M. Dean, Esq., Senior Vice
President, Law
13.2 Further Assurances. Each of the parties hereto agrees to execute,
------------------
acknowledge, deliver, file, record and publish such further certificates,
instruments, agreements and other documents, and to take all such further action
as may be required by law or deemed by the Members to be necessary or useful in
furtherance of the Company's purposes and the objectives and intentions
underlying this Agreement and not inconsistent with the terms hereof.
13.3 Waiver. No consent or waiver, express or implied, by any Member
------
or the Board in the performance by any other Member or the Board of his
obligations hereunder shall be deemed or construed to be a consent to or waiver
of any other breach or default in the performance by such other Member or the
Board of the same or any other obligation of such Member hereunder. Failure on
the part of a Member or the Board to complain of any act or failure to act of
any other Member or the Board or to declare such other Member or the Board in
default, irrespective of how long such failure continues, shall not constitute a
waiver by such Member or the Board of his rights hereunder.
13.4 Reaffirmation of Representations. Reckson hereby affirms that the
--------------------------------
representations and warranties of Reckson Realty contained in the Agreement and
Plan of Merger are true and correct as of the date hereof.
13.5 Severability. Any provision of this Agreement which is determined
------------
to be illegal, prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such illegality, prohibition or
unenforceability without invalidating the remaining provisions hereof which
shall be severable and enforceable according to their terms and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provisions in any other jurisdiction.
13.6 Additional Remedies. The rights and remedies of any Member
-------------------
hereunder shall not be mutually exclusive. The respective rights and obligations
hereunder shall be enforceable by specific performance, injunction or other
equitable remedy, but nothing herein contained is intended to, nor shall it
limit or affect, any other rights in equity or any rights at law or by statute
or otherwise of any party aggrieved as against the other for breach or
threatened breach of any provision thereof, it being the intention of this
Section 13.6 to make clear the agreement of the parties hereto that their
respective rights and obligations hereunder shall be enforceable in equity as
well as at law or otherwise.
13.7 Governing Law. This Agreement shall be governed by, and construed
-------------
and enforced in accordance with, the laws of the State of Delaware without
giving affect to the provisions, policies or principles thereof respecting
conflict or choice of laws.
13.8 Entire Agreement. This instrument constitutes the complete and
----------------
entire understanding among the parties with respect to its subject matter and
supersedes all existing agreements and understandings, whether oral or written,
among them and no alteration or modification of any of its provisions shall be
valid unless made in writing and signed by all of the parties hereto.
13.9 Benefits of Agreements; Successors and Assigns. This Agreement
-----------------------------------------------
shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns, legal representatives and heirs;
this Agreement does not create, and shall not be construed as creating, any
rights enforceable by any other Person.
13.10 Heading. The headings contained in this Agreement are for
-------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.11 Counterparts. This Agreement may be executed in one or more
------------
counterparts each of which shall be deemed an original but all of which taken
together shall constitute one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Limited
Liability Company on the day and year first above written.
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its General Partner
By: /s/ Scott H. Rechler
------------------------------
Name:
Title:
CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP
By: Crescent Real Estate Equities, Ltd.,
its General Partner
By: /s/ David M. Dean
------------------------------
Name:
Title:
The undersigned hereby unconditionally and
irrevocably guarantees the performance by
Reckson of its obligation to deliver
common shares of Reckson Realty to the
Class A Preferred Member in accordance
with Section 10.3 of the Agreement.
Reckson Associates Realty Corp.
By: /s/ Scott H. Rechler
-----------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
---------
Schedule of Members and
Capital Contributions Upon Date of Execution of Agreement and Plan of Merger
Member Capital Contribution Upon
- ------ -------------------------
Date of Execution of Agreement
------------------------------
and Plan of Merger
------------------
Class B Common Member
- ---------------------
Reckson Operating Partnership, L.P. $30,000,000
Class A Preferred Member
- ------------------------
Crescent Real Estate Equities Limited Partnership $10,000,000
<PAGE>
EXHIBIT B
---------
Certificate of Formation
of
[NEWCO LLC]
This Certificate of Formation of [NEWCO LLC] (the "LLC"), dated as of
____________________, 1997, is being duly executed and filed by
_______________________, as an authorized person, to form a limited liability
company under the Delaware Limited Liability Company Act (6 Del.C. ss. 18-101,
et seq.).
FIRST. The name of the limited liability company formed hereby is
[NEWCO LLC].
SECOND. The address of the registered office of the LLC in the State
of Delaware is c/o Corporate Trust Company, 1209 Orange Street, Wilmington,
Delaware 19801.
THIRD. The name and address of the registered agent for service of
process on the LLC in the State of Delaware is The Corporation Trust Company,
1209 Orange Street, Wilmington, Delaware 19801.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation as of the date first above written.
By: _________________________________
Name:
Title: Authorized Person
<PAGE>
EXHIBIT C
---------
Initial Board of Member Representatives
1. Scott Rechler
2. Roger Rechler
3. Donald Rechler
<PAGE>
EXHIBIT D
---------
Allocations
1.1 Capital Accounts; Allocations of Net Income and Net Loss.
--------------------------------------------------------
(a) The Company shall establish and maintain a separate
account (the "Capital Account") for each Member. The initial balance of the
Capital Account for each Member shall be such Member's initial Capital
Contribution that has been made to the Company. The Capital Account of each
Member shall be increased by (i) the amount of cash and the Agreed Value of any
non-cash property contributed to the Company by such Member and (ii) allocations
to such Member of income and gain (including income exempt from tax). The
Capital Account of each Member shall be decreased by (i) the dollar amount of
any distributions made to such Member, (ii) the gross fair market value of any
property distributed to such Member, reduced by liabilities assumed by such
Member or to which such property is subject, and (iii) allocations to such
Member of loss and deduction (including expenditures not deductible in computing
the Company's income or loss for federal income tax purposes).
(b) Notwithstanding any other provision of this Agreement to
the contrary, the foregoing provisions of Section 1.1(a) of this Exhibit D
regarding the maintenance of the Capital Accounts shall be construed so as to
comply with the provisions of the Treasury Regulations promulgated pursuant to
Section 704 of the Code. The Board is hereby authorized to modify the foregoing
provisions to the minimum extent necessary to comply with such Treasury
Regulations. Any such modifications shall be made in a manner that does not
alter the Members' rights to distributions under Article IV.
1.2 Allocation of Income, Gains and Losses. Subject to Sections 1.5,
---------------------------------------
1.7, 1.9, 1.11, 1.12 and 1.13 of this Exhibit D, the Net Income and the Net Loss
of the Company for each Fiscal Year shall be allocated among the Members as
follows:
(a) First, an amount of gross income shall be allocated to the
Members (on a pro rata basis, in proportion to the amount allocable to each
Member under this Section 1.2(a) until the aggregate amount of gross income
allocated to the Members under this Section 1.2(a) for the current year and all
prior years is equal to the aggregate distributions to the Members under
Sections 4.2(b)(1)(i) of the Agreement for the current year and all prior years;
(b) Second, an amount of gross income shall be allocated to
the Class A Preferred Member until the aggregate amount of gross income
allocated to the Class A Preferred Member under this Section 1.2(b) for the
current year and all prior years is equal to the aggregate distributions to the
Class A Preferred Member under Sections 4.2(b)(1)(ii)(A) of the Agreement for
the current year and all prior years; and
(c) All remaining Net Income and Net Loss shall be allocated
to the Class B Common Member(s).
1.3 Tax Allocations. Allocations of Net Income and Net Loss shall be
----------------
made to the Members for federal, state and other tax purposes in accordance with
the provisions of this Exhibit D. In the event the allocations set forth in this
Exhibit D are disallowed by the Internal Revenue Service, such allocations shall
be deemed to be amended to the minimum extent necessary to conform with Section
704 of the Code, while preserving the intent of the foregoing allocations to the
maximum possible extent and by making such adjustments to the allocations as are
necessary to allow distributions to be made in accordance with Section 4.2.
1.4 Assignment During the Fiscal Year. If a Member's Interest in the
---------------------------------
Company is transferred at any time other than at the end of a Fiscal Year of the
Company, each item of income, gain, loss, deduction and credit attributable to
such interest for the Fiscal Year in which the transfer occurs shall be divided
and allocated proportionately between the transferor and the transferee in the
same ratio as the number of days in the Fiscal Year respectively before and
after the date the transfer is recognized by the Company bears to the number of
days in such Fiscal Year.
1.5 Qualified Income Offset. Notwithstanding anything to the contrary
-----------------------
that may be express or implied in this Agreement, if any Member unexpectedly
receives any adjustment, allocation or distribution described in Treasury
Regulation section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company income
and gain shall be specially allocated to such Member in an amount and manner
sufficient to eliminate as soon as practicable any Adjusted Capital Account
Deficit created by such adjustment, allocation or distribution. This Section 1.5
of Exhibit D is intended to constitute a "Qualified Income Offset" within the
meaning of Treasury Regulation section 1.704-1(b)(2)(ii)(d)(3).
1.6 Book-Ups. Consistent with Treasury Regulation section 1.704-1
--------
(b)(2)(iv)(f) and (g), the Board may adjust the value of all the Company's
assets on the Company's books (the "Carrying Value") to equal their respective
gross fair market values, as determined by the Board, and reflect any such
increase or decrease in the Capital Account of the Members, as of the following
times:
(a) (i) the acquisition of an additional Interest by any new
or existing Member in exchange for more than a de minimis Capital Contribution;
(ii) the distribution by the Company to a Member of property as consideration
for all or any part of an Interest owned by the Member other than a de minimis
amount; and (iii) the liquidation of the Company within the meaning of Treasury
Regulations section 1.704-1(b)(2)(ii)(g); provided however, that adjustments
pursuant to clauses (i) and (ii) above shall be made only if the Board
reasonably determines that such adjustments are necessary or appropriate to
reflect the relative economic interests of the Members (except that adjustments
shall be made upon any conversion of the Class A Preferred Membership Interest
to a Class B Common Membership Interest under Section 10.2) in the Company and
are appropriate under generally accepted industry accounting practices; and
(b) the Gross Asset Values of Company assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Code section 734(b) or Code section 743(b), but only to
the extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Treasury Regulations section 1.704-1(b)(2)(iv)(m) and
section 754 of the Code; provided, however, that Gross Asset Values shall not be
adjusted pursuant to this subsection (b) to the extent the Managing Member
determines that an adjustment pursuant to subsection (a) above is necessary or
appropriate in connection with a transaction that would otherwise result in an
adjustment pursuant to this subsection (b).
If the Board revalues any of the Company's assets pursuant to this Section 1.6
of Exhibit D, each Member's share of gain or loss from such assets (and to the
extent applicable, share of depreciation, depletion, and amortization) shall be
computed for tax purposes so as to take into account the variation between the
adjusted tax basis and book value of such assets in the same manner as under
section 704(c) for property contributed to a partnership and the Member's
Capital Accounts shall be adjusted for allocations to them of gain or loss (and
to the extent applicable, share of depreciation, depletion, and amortization) as
computed for book purposes with respect to such assets. This provision is
intended to satisfy the requirements of Treasury Regulation section
1.704-1(b)(2)(iv)(f)(3) and (4), and accordingly, shall be interpreted
consistent with such requirements.
1.7 Special Tax Allocations.
-----------------------
(a) Member Minimum Gain Chargeback. Except as otherwise
provided in Treasury Regulations section 1.704-2(i)(4), notwithstanding any
other provision of this Article III, if there is a net decrease in Member
Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during
any Fiscal Year, each Member who has a share of the Member Nonrecourse Debt
Minimum Gain attributable to such Member Nonrecourse Debt, determined in
accordance with Treasury Regulations section 1.704-2(i)(5), shall be specially
allocated items of income and gain for such Fiscal Year (and, if necessary,
subsequent Fiscal Years) in an amount equal to such Member's share of the net
decrease in Member Nonrecourse Debt Minimum Gain attributable to such Member
Nonrecourse Debt, determined in accordance with Treasury Regulations
1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to each Member
pursuant thereto. The items to be so allocated shall be determined in accordance
with Treasury Regulations sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section
1.7(a) is intended to comply with the minimum gain chargeback requirement in
Treasury Regulations section 1.704-2(i)(4) and shall be interpreted consistently
therewith.
(b) Member Nonrecourse Deductions. Any Member Nonrecourse
Deductions for any Fiscal Year shall be specially allocated to the Member who
bears the economic risk of loss with respect to the Member Nonrecourse Debt to
which such Member Nonrecourse Deductions are attributable in accordance with
Treasury Regulations section 1.704-2(i)(1).
(c) If there is a net decrease in Company Minimum Gain during
any fiscal year (except as a result of certain conversions and refinancings of
Company indebtedness, certain capital contributions, or certain revaluations of
the Company property as further described in Treasury Regulations Sections
1.704-2(d)(4), 1.704-2(f)(2) or 1.704-2(f)(3)), each Member shall be specially
allocated items of Company income and gain for such year (and, if necessary,
subsequent years) in an amount equal to such Member's share of the net decrease
in Company Minimum Gain, as determined under Treasury Regulations Section
1.704-2(g). Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to each Member
pursuant thereto. The items to be so allocated shall be determined in accordance
with Treasury Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section
1.7(c) is intended to comply with the minimum gain chargeback requirements in
Treasury Regulations Section 1.704-2(f) and shall be interpreted consistently
therewith.
1.8 No Deficit Makeup. Notwithstanding anything herein to the contrary,
-----------------
upon the liquidation of the Company, no Member shall be required to make any
Capital Contribution to the Company in respect of any deficit in such Member's
Capital Account.
1.9 Additional Allocations. In the event that there is more than one
-----------------------
Class B Common Member, it is the intent of the Members that all distributions of
liquidating proceeds to the Class B Common Members under Section 7.2(d) shall be
made to the Class B Common Members in proportion to their respective percentage
ownership interests. Accordingly, notwithstanding the other provisions of this
Exhibit D (other than Sections 1.5, 1.6, 1.7 and 1.11), if, upon the final
dissolution and termination of the Company and after taking into account all
allocations of Net Income and Net Losses (and other tax items) under this
Exhibit D, the distributions to be made in accordance with the positive Capital
Account balances of the Members would result in a distribution to the Class B
Common Members that would be different from a distribution as described under
the preceding sentence, then gross items of income and gain (and other tax
items) for the taxable year of the final dissolution and termination shall be
allocated to the Class B Common Members to increase or decrease their respective
Capital Account balances, as the case may be, so that the final distribution to
the Class B Common Members will, to the maximum extent possible, occur in the
same manner as a distribution as described under the preceding sentence.
1.10 Basis Adjustment. In the event of a transfer of the Interest of a
----------------
Member or the distribution of assets in kind to a Member, the Board shall, upon
the request of any Member, cause the Company to elect to adjust the basis of the
Company's assets pursuant to an election made under section 754 of the Code.
1.11 Limitation on Loss Allocations. Net Loss shall not be allocated to
------------------------------
any Member to the extent that such allocation would cause such Member to have an
Adjusted Capital Account Deficit at the end of such taxable year (or increase
any existing Adjusted Capital Account Deficit). All Net Loss in excess of the
limitations set forth in this Section 1.11 shall be allocated to the other
Member.
1.12 Curative Allocations. The allocations set forth in Sections 1.5
---------------------
and 1.11 of this Exhibit D (the "Regulatory Allocations") are intended to comply
with certain requirements of the Treasury Regulations promulgated under Section
704 of the Code. The Regulatory Allocations shall be taken into account in
allocating Net Income, Net Loss and other items of gain, loss, and deduction to
each Member so that, to the extent possible, and to the extent permitted by the
Treasury Regulations, the cumulative allocations of Net Income, Net Loss and
other items and the Regulatory Allocations to each Member shall be equal to the
net amount that would have been allocated to each Member if the Regulatory
Allocations had not been made.
1.13 Special Allocation of Deductions. Notwithstanding anything herein
--------------------------------
to the contrary, all items of loss or deduction relating to the costs, fees and
expenses that are reimbursed by a Member to the Company pursuant to the third
sentence of Section 12.2 shall be allocated to such reimbursing Member.
Exhibit 99.1
RECKSON ASSOCIATES, CRESCENT REAL ESTATE AND TOWER REALTY
ANNOUNCE REVISED MERGER AGREEMENT
_________________________________________________________
MELVILLE and NEW YORK, NY and FORT WORTH, TX - December 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 leverage structured, 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 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.
