REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of June 16, 2000 between RECKSON ASSOCIATES REALTY CORP., a
Maryland corporation (the "Company") and STICHTING PENSIOENFONDS ABP, a Dutch
pension fund (the "Purchaser").
This Agreement is made pursuant to the Exchange Agreement,
dated June 16, 2000 (the "Exchange Agreement"), between the Company, as issuer
of 4,181,818 shares of Class A common stock, par value $.01 per share (the
"Securities") and the Purchaser. In order to induce the Purchaser to enter into
the Exchange Agreement, the Company has agreed to provide to the Purchaser and
its direct and indirect transferees the registration rights set forth in this
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
which banking institutions in The City of New York are authorized or required by
law, executive order or regulation to remain closed.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Closing Time" shall mean the date of Closing, as defined in the Exchange
Agreement.
"Effectiveness Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Holder" shall mean the Purchaser, for so long as it owns any Registrable
Securities, and each of its respective successors, assigns and direct and
indirect transferees who become holders of record of Registrable Securities.
"Inspectors" shall have the meaning set forth in Section 3(m) hereof.
"Issue Date" shall mean June 20, 2000, the date of original issuance of
the Securities.
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"Liquidated Damages" shall have the meaning set forth in Section 2(c)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
Registrable Securities.
"Operating Partnership" shall mean Reckson Operating Partnership, L.P., a
Delaware limited partnership.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and, in each case, including all documents incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Purchaser" shall have the meaning set forth in the preamble to this
Agreement.
"Records" shall have the meaning set forth in Section 3(m) hereof.
"Registrable Securities" shall mean the Securities; provided, however,
that Securities shall cease to be Registrable Securities when the earlier of the
following occurs (i) a Shelf Registration Statement with respect to such
Securities for the resale thereof shall have been declared effective under the
Securities Act and such Securities shall have been disposed of pursuant to such
Shelf Registration Statement, (ii) such Securities shall have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or are eligible to be sold without
restriction as contemplated by Rule 144(k) or (iii) such Securities shall have
ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Securities in
accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel for all
underwriters or Holders as a group in connection with blue sky qualification of
any of the Registrable Securities) and compliance with the rules of the NASD,
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Shelf Registration Statement, any
Prospectus and any amendments or supplements thereto, and in preparing or
assisting in preparing, printing and distributing any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) the fees
and
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disbursements of counsel for the Company and of the independent certified public
accountants of the Company, including the expenses of any "cold comfort" letters
required by or incident to the performance of and compliance with this
Agreement, and (vi) the reasonable fees and expenses of any special experts
retained by the Company in connection with the Shelf Registration Statement.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall mean the Preferred Securities and the Common Stock.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(a) hereof which
covers all of the Registrable Securities on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the SEC,
and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
2. Registration Under the Securities Act.
(a) Shelf Registration. The Company shall file or cause to be
filed, on or prior to September 20, 2000, a Shelf Registration
Statement providing for the sale by the Holders of all of the
Registrable Securities and shall use its best efforts to have such
Shelf Registration Statement declared effective by the SEC as promptly
as practicable after filing thereof. No Holder of Registrable
Securities shall be entitled to include any of its Registrable
Securities in any Shelf Registration pursuant to this Agreement unless
and until such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder and furnishes to
the Company in writing, within 15 days after receipt of a request
therefor, such information as the Company may, after conferring with
counsel with regard to information relating to Holders that would be
required by the SEC to be included in such Shelf Registration Statement
or Prospectus included therein, reasonably request for inclusion in any
Shelf Registration Statement or Prospectus included therein. Each
Holder as to which any Shelf Registration is being effected agrees to
furnish to the Company all information with respect to such Holder
necessary to make the information previously furnished to the Company
by such Holder not materially misleading.
The Company agrees to use its best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus usable for
resales during the Rule 144(k) Period (subject to extension pursuant to the last
paragraph of Section 3 hereof), or for such shorter period which will terminate
when all of the Securities covered by the Shelf Registration
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Statement have been sold pursuant to the Shelf Registration Statement or cease
to be Registrable Securities (the "Effectiveness Period"); provided, however,
that for 60 days or less (whether or not consecutive) in any twelve-month
period, the Company shall be permitted to suspend sales of Securities if the
Shelf Registration Statement is no longer effective or the Prospectus usable for
resales due to circumstances relating to pending developments, public filings
with the SEC and similar events, or because the Prospectus includes an untrue
statement of a material fact or omits to state a material fact necessary in
order to make statements therein, in the light of the circumstances under which
they were made, not misleading. The Company will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder a
reasonable number of copies of the Prospectus which is a part of the Shelf
Registration Statement, notify each such Holder when the Shelf Registration
Statement has become effective and take such other actions as are required to
permit unrestricted resales of the Registrable Securities. The Company further
agrees to supplement or amend the Shelf Registration Statement if and as
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or by any other rules and regulations thereunder for shelf
registrations, and the Company agrees to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(b) Expenses. The Company, as issuer of the Securities, shall pay
all Registration Expenses in connection with any Shelf Registration
Statement filed pursuant to Section 2(a) hereof and will reimburse any
single counsel designated in writing by the Majority Holders to act as
counsel for the Holders of the Registrable Securities in connection with a
Shelf Registration Statement, which other counsel shall be reasonably
satisfactory to the Company. Except as provided herein, each Holder shall
pay all expenses of its counsel, underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(c) Effective Shelf Registration Statement. A Shelf Registration
Statement will not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that if, after it has
been declared effective, the offering of Registrable Securities pursuant
to such Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Shelf Registration Statement will be
deemed not to have been effective during the period of such interference,
until the offering of Registrable Securities pursuant to such Shelf
Registration Statement may legally resume. The Company will be deemed not
to have used its reasonable best efforts to cause a Shelf Registration
Statement to become, or to remain, effective during the requisite period
if it voluntarily takes any action that would result in any such Shelf
Registration Statement not being declared effective or that would result
in the Holders of Registrable Securities covered thereby not being able to
offer and sell such Registrable Securities during that period, unless such
action is required by applicable law.
(d) Specific Enforcement. Without limiting the remedies available
to the Holders, the Company acknowledges that any failure by it to comply
with its obligations under Section 2(a) hereof may result in material
irreparable injury to the Holders for
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which there is no adequate remedy at law, that it would not be possible to
measure damages for such injuries precisely and that, in the event of any
such failure, any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2(a) hereof.
3. Registration Procedures. In connection with the obligations of
the Company with respect to the Shelf Registration Statement pursuant to Section
2(a) hereof, the Company shall use its best efforts to:
(a) prepare and file with the SEC a Shelf Registration Statement as
prescribed by Section 2(a) hereof within the relevant time period
specified in Section 2(a) hereof on the appropriate form under the
Securities Act, which form shall (i) be selected by the Company, (ii) be
available for the sale of the Registrable Securities by the selling
Holders thereof, and (iii) comply as to form in all material respects with
the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; the Company shall
use its best efforts to cause such Shelf Registration Statement to become
effective and remain effective and the Prospectus usable for resales in
accordance with Section 2 hereof; provided, however, that, before filing
any Shelf Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford the Holders
of the Registrable Securities covered by such Shelf Registration
Statement, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed; and the Company shall not file any
Shelf Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be afforded an
opportunity to review prior to the filing of such document, other than
filings required under the Exchange Act, if the Majority Holders, their
counsel or the managing underwriters, if any, shall reasonably object in a
timely manner;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement effective for the
Effectiveness Period, subject to the proviso contained in the second
paragraph in Section 2(a), and cause each Prospectus to be supplemented,
if so determined by the Company or requested by the SEC, by any required
prospectus supplement and as so supplemented to be filed pursuant to Rule
424 (or any similar provision then in force) under the Securities Act, and
comply with the provisions of the Securities Act, the Exchange Act and the
rules and regulations promulgated thereunder applicable to it with respect
to the disposition of all securities covered by a Shelf Registration
Statement during the Effectiveness Period in accordance with the intended
method or methods of distribution by the selling Holders thereof described
in this Agreement;
(c) (i) notify each Holder of Registrable Securities included in
the Shelf Registration Statement, at least three Business Days prior to
filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holder that the
distribution of Registrable Securities will be made in accordance with the
method selected by the Majority Holders, (ii) furnish to each Holder
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of Registrable Securities included in the Shelf Registration Statement and
to each underwriter of an underwritten offering of Registrable Securities,
if any, without charge, as many copies of each Prospectus, including each
preliminary prospectus, and any amendment or supplement thereto, and such
other documents as such Holder or underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Securities and (iii) consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Registrable Securities included in the Shelf Registration Statement in
connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto;
(d) register or qualify the Registrable Securities under all
applicable state securities or "blue sky" laws of such jurisdictions by
the time the applicable Shelf Registration Statement is declared effective
by the SEC as any Holder of Registrable Securities covered by a Shelf
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request in writing in advance of
such date of effectiveness, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder and
underwriter to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided, however, that
the Company shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii) file any
general consent to service of process in any jurisdiction where it would
not otherwise be subject to such service of process or (iii) subject
itself to taxation in any such jurisdiction if it is not then so subject;
(e) promptly notify each Holder of Registrable Securities, their
counsel and the managing underwriters, if any, and promptly confirm such
notice in writing (i) when a Shelf Registration Statement has become
effective and when any post-effective amendments thereto become effective,
(ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Shelf Registration Statement or Prospectus
or for additional information after the Shelf Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Shelf
Registration Statement or the qualification of the Registrable Securities
in any jurisdiction described in Section 3(d) hereof or the initiation of
any proceedings for that purpose, (iv) if, between the effective date of a
Shelf Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any purchase agreement, securities sales agreement or
other similar agreement cease to be true and correct in all material
respects, (v) of the happening of any event or the failure of any event to
occur or the discovery of any facts, during the Effectiveness Period,
which makes any statement made in a Shelf Registration Statement or the
related Prospectus untrue in any material respect or which causes such
Shelf Registration Statement or Prospectus to omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and (vi) of
the reasonable determination of the Company that a post-effective
amendment to the Shelf Registration Statement would be appropriate;
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(f) obtain the withdrawal of any order suspending the effectiveness
of the Shelf Registration Statement at the earliest possible moment;
(g) furnish to each Holder of Registrable Securities included
within the coverage of a Shelf Registration Statement, without charge, at
least one conformed copy of the Shelf Registration Statement relating to
such Shelf Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends and registered in such names as the selling Holders or
the underwriters may reasonably request at least two Business Days prior
to the closing of any sale of Registrable Securities pursuant to the Shelf
Registration Statement;
(i) promptly after the occurrence of any event specified in Section
3(e)(ii), 3(e)(iii), 3(e)(v) (subject to a 60 day grace period within any
twelve-month period) or 3(e)(vi) hereof, prepare a supplement or
post-effective amendment to the Shelf Registration Statement or the
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Company
shall notify each Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each Holder hereby
agrees to suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any document which is
to be incorporated by reference into a Shelf Registration Statement or a
Prospectus after the initial filing of a Shelf Registration Statement,
provide a reasonable number of copies of such document to the Holders and
make such of the representatives of the Company as shall be reasonably
requested by the Holders of Registrable Securities or the Purchaser on
behalf of such Holders available for discussion of such document;
(k) enter into such agreements (including underwriting agreements)
as are customary in underwritten offerings and take all such other
appropriate actions in connection therewith as are reasonably requested by
the Holders of at least 25% of the Registrable Securities in order to
expedite or facilitate the registration or the disposition of the
Registrable Securities;
(l) whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, if
requested by the Holders of at least 25% of the Registrable Securities
covered thereby: (i) make such representations and warranties to Holders
of such Registrable Securities and the underwriters (if any), with respect
to the business of the Company and its subsidiaries as then conducted and
with
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respect to the Shelf Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in
each case, as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested; (ii)
obtain opinions of counsel to the Company and updates thereof (which may
be in the form of a reliance letter) in form and substance reasonably
satisfactory to the managing underwriters (if any) and the Holders of a
majority of the Registrable Securities being sold, addressed to each
selling Holder and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such underwriters (it
being agreed that the matters to be covered by such opinion may be subject
to customary qualifications and exceptions); (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory
to the managing underwriters from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by
such underwriters in accordance with Statement on Auditing Standards No.
72; and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable than
those set forth in Section 4 hereof (or such other provisions and
procedures acceptable to Holders of a majority of Registrable Securities
covered by such Shelf Registration Statement and the managing
underwriters) customary for such agreements with respect to all parties to
be indemnified pursuant to said Section (including, without limitation,
such underwriters and selling Holders); and in the case of an underwritten
registration, the above requirements shall be satisfied at each closing
under the related underwriting agreement or as and to the extent required
thereunder;
(m) make reasonably available for inspection by any selling Holder
of Registrable Securities who certifies to the Company that it has a
current intention to sell Registrable Securities pursuant to the Shelf
Registration, any underwriter participating in any such disposition of
Registrable Securities, if any, and any attorney, accountant or other
agent retained by any such selling Holder or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during the
Company's normal business hours, all financial and other records,
pertinent organizational and operational documents and properties of the
Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, trustees and employees
of the Company and its subsidiaries to supply all relevant information in
each case reasonably requested by any such Inspector in connection with
such Shelf Registration Statement; records and information which the
Company, in good faith, to be confidential and any Records and information
which it notifies the Inspectors are confidential shall not be disclosed
to any Inspector except where (i) the disclosure of such Records or
information is necessary to avoid or correct a material misstatement or
omission in such Shelf Registration Statement, (ii) the release of such
Records or information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or is necessary in
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connection with any action, suit or proceeding or (iii) such Records or
information previously has been made generally available to the public;
each selling Holder of such Registrable Securities will be required to
agree in writing that Records and information obtained by it as a result
of such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the
Company unless and until such is made generally available to the public
through no fault of an Inspector or a selling Holder; and each selling
Holder of such Registrable Securities will be required to further agree in
writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in
connection with any action, suit or proceeding, give notice to the Company
and allow the Company at its expense to undertake appropriate action to
prevent disclosure of the Records and information deemed confidential;
(n) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make
generally available to its securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the end of any twelve-month period (or 90 days
after the end of any twelve-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of a Shelf Registration Statement, which
statements shall cover said twelve-month periods, provided that the
obligations under this Section 3(n) shall be satisfied by the timely
filing of quarterly and annual reports on Forms 10-Q and 10-K under the
Exchange Act;
(o) cooperate with each seller of Registrable Securities covered by
a Shelf Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Securities and their respective
counsel in connection with any filings required to be made with the NASD;
(p) take all other steps necessary to effect the registration of
the Registrable Securities covered by a Shelf Registration Statement
contemplated hereby; and
(q) the Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to it such
information regarding such seller as may be required by the staff of the
SEC to be included in a Shelf Registration Statement; the Company may
exclude from such registration the Registrable Securities of any seller
who unreasonably fails to furnish such information within a reasonable
time after receiving such request; and the Company shall have no
obligation to register under the Securities Act the Registrable Securities
of a seller who so fails to furnish such information.
Each Holder agrees that, upon receipt of any notice from the
Company of the occurrence of any event specified in Section 3(e)(ii), 3(e)(iii),
3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to a Shelf
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Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense) all copies in such
Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice. If the Company shall give any such notice to
suspend the disposition of Registrable Securities pursuant to a Shelf
Registration Statement, the Company shall use its best efforts to file and have
declared effective (if an amendment) as soon as practicable after the resolution
of the related matters an amendment or supplement to the Shelf Registration
Statement and related Prospectus and shall extend the period during which such
Shelf Registration Statement is required to be maintained effective and the
Prospectus usable for resales pursuant to this Agreement by the number of days
in the period from and including the date of the giving of such notice to and
including the date when the Company shall have made available to the Holders (x)
copies of the supplemented or amended Prospectus necessary to resume such
dispositions or (y) the Advice.
4. Indemnification and Contribution. (a) The Company and the Operating
Partnership hereby agree, jointly and severally, to indemnify and hold harmless
each Holder, each underwriter who participates in an offering of the Registrable
Securities, each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in a Shelf
Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact required to be stated therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided
that (subject to Section 4(d) hereof) such settlement is effected with
the prior written consent of the Company and the Operating Partnership;
and
(iii) against any and all expenses whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
such Holder), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section
4(a);
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provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company and the
Operating Partnership by such Holder or underwriter for use in the Shelf
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(b) The Purchaser and each Holder or underwriter agrees, severally
and not jointly, to indemnify and hold harmless the Company, its trustees
and officers (including each officer of the Company who signed the Shelf
Registration Statement), and the Operating Partnership and each Person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Holder expressly for use in such Shelf Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement
thereto); provided, however, that no Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder
from the sale of Registrable Securities.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have under this Section
4 to the extent that it is not materially prejudiced by such failure as a
result thereof, and in any event shall not relieve it from liability which
it may have otherwise on account of this indemnity agreement. In the case
of parties indemnified pursuant to Section 4(a) or (b) above, counsel to
the indemnified parties shall be selected by such parties. An indemnifying
party may participate at its own expense in the defense of such action;
provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to local
counsel), separate from their own counsel, for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 4 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional written
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim
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and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have validly
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by Section
4(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement set forth in this Section 4
is for any reason held to be unenforceable by an indemnified party
although applicable in accordance with its terms, the Company and the
Operating Partnership, on the one hand, and the Holders, on the other
hand, shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Company, the Operating Partnership and the
Holders, as incurred; provided, however, that no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any Person that was not
guilty of such fraudulent misrepresentation. As between the Company and
the Operating Partnership, on the one hand, and the Holders, on the other
hand, such parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect the
relative fault of the Company and the Operating Partnership, on the one
hand, and the Holders, on the other hand, with respect to the statements
or omissions which resulted in such loss, liability, claim, damage or
expense, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault of the Company and the
Operating Partnership, on the one hand, and of the Holders, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company or the Operating Partnership, on the one hand, or by or on
behalf of the Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Operating Partnership and the
Holders of the Registrable Securities agree that it would not be just and
equitable if contribution pursuant to this Section 4 were to be determined
by pro rata allocation or by any other method of allocation that does not
take into account the relevant equitable considerations. For purposes of
this Section 4, each Affiliate of a Holder, and each director, officer and
employee and Person, if any, who controls a Holder or such Affiliate
within the meaning of Section 15 of the Securities Act shall have the same
rights to contribution as such Holder, and each trustee and officer of the
Company and each Person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as the Company and the
Operating Partnership.
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5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities
covered by the Shelf Registration Statement who desire to do so may sell the
Securities covered by such Shelf Registration in an underwritten offering,
subject to the provisions of Section 3(l) hereof. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority of the
Registrable Securities included in such offering; provided, however, that such
underwriters and managers must be reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding, the Company will file the
reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted
by the SEC thereunder; provided, however, that if the Company ceases to be
so required to file such reports, it will, upon the request of any Holder
of Registrable Securities (a) make publicly available such information as
is necessary to permit sales of its securities pursuant to Rule 144 under
the Securities Act and (b) take such further action that is reasonable in
the circumstances, in each case, to the extent required from time to time
to enable such Holder to sell its Registrable Securities without
registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such rule may
be amended from time to time, or any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into,
and will not enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement
or otherwise conflicts with the provisions hereof. The rights granted to
the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written
consent of Holders of a majority of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or departure;
provided that no amendment, modification or supplement or waiver or
consent to
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the departure with respect to the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Securities unless consented
to in writing by such Holder of Registrable Securities. Notwithstanding
the foregoing sentence, (i) this Agreement may be amended, without the
consent of any Holder of Registrable Securities, by written agreement
signed by the Company, the Operating Partnership and the Purchaser, to
cure any ambiguity, correct or supplement any provision of this Agreement
that may be inconsistent with any other provision of this Agreement or to
make any other provisions with respect to matters or questions arising
under this Agreement which shall not be inconsistent with other provisions
of this Agreement, (ii) this Agreement may be amended, modified or
supplemented, and waivers and consents to departures from the provisions
hereof may be given, by written agreement signed by the Company, the
Operating Partnership and the Purchaser to the extent that any such
amendment, modification, supplement, waiver or consent is, in their
reasonable judgment, necessary or appropriate to comply with applicable
law (including any interpretation of the Staff of the SEC) or any change
therein and (iii) to the extent any provision of this Agreement relates to
the Purchaser, such provision may be amended, modified or supplemented,
and waivers or consents to departures from such provisions may be given,
by written agreement signed by the Purchaser, the Operating Partnership
and the Company.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with respect
to the Purchaser, the address set forth in the Purchase Agreement; and
(ii) if to the Company or the Operating Partnership, initially at the
Company's address set forth in the Purchase Agreement and thereafter at
such other address, notice of which is given in accordance with the
provisions of this Section 7(d).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of
the Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the
Purchase Agreement or amended charter of the Company. If any transferee of
any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions
of this Agreement and such Person shall be entitled to receive the
benefits hereof.
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(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary of the agreements made hereunder among the Company, the
Operating Partnership and the Purchaser, and the Purchaser shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without
giving effect to any provisions relating to conflicts of laws.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected or
impaired thereby.
(k) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the
Company or any Affiliates shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
Very truly yours,
RECKSON ASSOCIATES REALTY CORP.
By:/s/ Jason M. Barnett
------------------------------------------
Name: Jason M. Barnett
Title: Executive Vice President
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its General Partner, solely with respect to
Section 4 hereof
By:/s/ Jason M. Barnett
----------------------------------------
Name: Jason M. Barnett
Title: Executive Vice President
CONFIRMED AND ACCEPTED,
as of the date first
above written:
STICHTING PENSIOENFONDS ABP
By: ABP Investments US, Inc., as Agent
By: /s/ Barden N. Gale
-------------------------
Name: Barden N. Gale
Title: Executive Vice President
16
