OPERATING AGREEMENT
OF
RT TRI-STATE LLC
THIS OPERATING AGREEMENT is entered into as of September 28,
2000, between Reckson Tri-State Member LLC, a Delaware limited liability
company (together with its permitted successors and assigns, "Reckson") and
TIAA Tri-State LLC, a Delaware limited liability company (together with its
permitted successors and assigns, "TIAA LLC"). Reckson and TIAA LLC shall
hereinafter collectively be referred to as the "Members".
WHEREAS, a limited liability company was previously formed
pursuant to the provisions of the Delaware Limited Liability Company Act (as
the same may be amended from time to time, the "LLC Act") under the name RT
Tri-State LLC (the "LLC") pursuant to a Certificate of Formation dated as of
September 14, 2000 (the "Certificate") and pursuant to which Reckson OP (as
hereinafter defined) was the sole member;
WHEREAS, subsequent to the LLC's formation, Reckson OP
contributed all of its interest in the LLC to Reckson in exchange for
Reckson's receipt of all of the ownership interests in the LLC;
WHEREAS, on the date hereof, the LLC owns all right, title
and interest in (a) Reckson Stamford Towers LLC ("Reckson/Stamford Towers
LLC"), the owner of fee simple title to the property commonly known as
Stamford Towers, Stamford, Connecticut ("Stamford Towers"), (b) Reckson Short
Hills LLC ("Reckson Short Hills LLC"), the owner of a condominium unit in the
building known as ▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (such condominium
unit, "51 JFK"), (c) Reckson ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ LLC ("Reckson ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ LLC"), the owner of fee simple title to the property commonly
known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ("▇▇▇ White Plains"), (d)
400 Garden City LLC ("400 Garden City LLC"), the owner of fee simple title to
the property commonly known as ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
("400 Garden City Plaza"), (e) 1305 ▇▇▇▇ ▇▇▇▇▇▇▇ LLC ("1305 ▇▇▇▇ ▇▇▇▇▇▇▇
LLC"), the owner of fee simple title to the property commonly known as 1305
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ("▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇"), (f) 90 ▇▇▇▇▇▇▇
LLC ("90 ▇▇▇▇▇▇▇ LLC"), the owner of the ground lessee's interest in the
building commonly known as ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ("▇▇
Merrick") and (g) 275 Broadhollow LLC ("275 Broadhollow LLC"), the owner of
fee simple title to the property commonly known as ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ("▇▇▇ Broadhollow"). Each of Reckson/Stamford Towers LLC,
Reckson Short Hills LLC, Reckson ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ LLC, 400 Garden City
LLC, 1305 ▇▇▇▇ ▇▇▇▇▇▇▇ LLC, 90 ▇▇▇▇▇▇▇ LLC and 275 Broadhollow LLC shall be
referred to individually as a "Property Owner" and collectively as the
"Property Owners". Each of Stamford Towers, 51 JFK, 120 White Plains, 400
Garden City Plaza, 1305 ▇▇▇▇ ▇▇▇▇▇▇▇, 90 ▇▇▇▇▇▇▇ and 275 Broadhollow shall be
referred to individually as a "Property" and collectively as the "Properties."
The Members acknowledge that the agreed gross value of each Property as of the
date of this Agreement is as set forth on Schedule 1 (the "Allocated Values");
and
WHEREAS, on the date hereof and as set forth herein (a) TIAA
LLC has made an initial capital contribution to the LLC in the amount set
forth in Section 5.01(a)(i), (b) TIAA LLC has received a 49% interest in the
LLC in exchange for such contribution; and (c) such capital contribution has
been distributed to Reckson (the occurrence of the events described in clauses
(a), (b) and (c) on the date of this Agreement are sometimes herein referred
to as the "Closing").
NOW, THEREFORE, in consideration of the foregoing, and of
the covenants and agreements hereinafter set forth, Reckson and TIAA LLC
hereby agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise specified, all references herein to
Articles or Sections are to Articles or Sections of this Agreement. Unless the
context otherwise specifies or requires, capitalized terms used herein shall
apply equally to both the singular and the plural forms of such capitalized
terms and shall have the following respective meanings:
51 JFK: As defined in the recitals to this Agreement.
90 ▇▇▇▇▇▇▇ LLC: As defined in the recitals to this Agreement.
90 ▇▇▇▇▇▇▇: As defined in the recitals to this Agreement.
101 JFK: As defined in Section 7.05.
120 White Plains: As defined in the recitals to this
Agreement.
275 Broadhollow: As defined in the recitals to this
Agreement.
275 Broadhollow LLC: As defined in the recitals to this
Agreement.
400 Garden City LLC: As defined in the recitals to this
Agreement.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇: As defined in the recitals to this
Agreement.
1305 ▇▇▇▇ ▇▇▇▇▇▇▇: As defined in the recitals to this
Agreement.
1305 ▇▇▇▇ ▇▇▇▇▇▇▇ LLC: As defined in the recitals to this
Agreement.
Actively Managed Entity: As defined in Section 9.06(a)(i).
Adjusted Net Ordinary Cash Flow: For any period means an
amount equal to the Net Ordinary Cash Flow for such period plus payments on
account of debt service, any expenses required or permitted to be capitalized,
Leasing Costs, Management Fees and excluding any changes in Cash Reserves.
Adjusted Portfolio Valuation: As defined in Section
9.06(a)(ii)(A).
Affiliate: When used with reference to a specified Person,
means any Person that directly or indirectly through one or more
intermediaries controls or is controlled by or is under common control with
the specified Person. For purposes of this definition of "Affiliate" the term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
Agreement: This Operating Agreement, as it may be further
amended or supplemented from time to time.
Allocated Values: As defined in the recitals to this
Agreement.
Annual Report: As defined in Section 8.04.
Applicable Interest: As defined in Section 9.04(a)(i).
Applicable Leases: As defined in Section 12.01(a).
Appraiser: As defined in Section 9.06(a)(ii)(A).
Approved Entity: As defined in Section 9.06(a)(i).
Approved Entity List: As defined in Section 9.06(a)(i).
Approved Pledgee: As defined in Section 9.09(d).
Bank Account: As defined in Section 8.03.
Bankrupt: "Bankruptcy" shall mean, and a Member shall be
deemed "Bankrupt" upon, (i) the entry of a final, nonappealable decree or
order for relief of the Member by a court of competent jurisdiction in any
involuntary case involving the Member under any bankruptcy, insolvency or
other similar law now or hereafter in effect; (ii) the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or other
similar agent for the Member or for all or substantially all of the Member's
assets or property which appointment is not discharged within ninety (90)
days; (iii) the ordering of the winding up or liquidation of the Member's
affairs; (iv) the filing with respect to the Member of a petition in any such
involuntary bankruptcy case, which petition remains undismissed for a period
of 90 days; (v) the commencement by the Member of a voluntary case under any
bankruptcy, insolvency or other similar law now or hereafter in effect; (vi)
the consent by the Member to the entry of an order for relief in an
involuntary case under any such law or to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar agent for the Member or for all or substantially
all of the Member's assets or property; (vii) the making by the Member of any
general assignment for the benefit of creditors; or (viii) the admission in
writing by the Member of its inability to pay its debts as such debts become
due.
Base Rents: For any Lease, the annual base rent payable by
the tenant under such Lease (calculated on a per rentable square foot basis of
the space demised under such Lease).
Binding Commitment Notice: As defined in Section 9.04(a)(i).
Binding Commitment Period: As defined in Section 9.04(a)(i).
Binding Loan Commitment: As defined in Section 10.03(c).
Binding Property Notice: As defined in Section 9.05(c).
Binding Third Party Property Notice: As defined in Section
10.01(a).
Book Value: Means, with respect to any LLC Asset, the
asset's adjusted basis for federal income tax purposes, except that, in
accordance with the rules set forth in Treas. Reg. Section 1.704-1(b)(iv)(f):
(a) The initial Book Value of the assets of the LLC
as of the date of the contribution or deemed contribution shall be their
respective gross fair market values at such time as reasonably determined by
the Operating Member and approved by TIAA LLC, which approval shall not be
unreasonably withheld and, in the case of each Property shall be equal to its
applicable Allocated Value;
(b) The Book Value of any asset distributed or
deemed distributed by the LLC to any Member shall be adjusted immediately
prior to such distribution to equal its gross fair market value at such time
as reasonably determined by the Operating Member and approved by TIAA LLC,
which approval shall not be unreasonably withheld;
(c) The Book Values of all LLC assets may be
adjusted to equal their respective gross fair market values, as reasonably
determined by the Operating Member (and approved by TIAA LLC, which approval
shall not be unreasonably withheld or delayed) as of:
(i) the date of the acquisition of an
additional interest in the LLC by any new
or existing Member in exchange for a
contribution to the capital of the LLC; or
(ii) upon any distribution in liquidation of
the LLC, or the distribution by the LLC to
a retiring or continuing Member of money
or other assets of the LLC in reduction of
such Member's Interest in the LLC.
Any adjustments to the adjusted basis of any asset of the LLC pursuant
to Sections 734 or 743 of the Code shall be taken into account in determining
such asset's Book Value in a manner consistent with Treas. Reg. Section
1.704-1(b)(2)(iv)(m); and
(d) If the Book Value of an asset has been
determined pursuant to clauses (a) through (c) above, such Book Value shall
thereafter be adjusted in the same manner as would the asset's adjusted tax
basis for federal income tax purposes, except that depreciation and
amortization deductions shall be computed based on the asset's Book Value as
so determined, and not on the asset's adjusted tax basis in a manner
consistent with Treas. Reg. Section 1.704-1(b)(2)(iv)(g)(3) or 1.704-3(d)(2),
as applicable.
Borrower: As defined in Section 10.03(b).
Broker: As defined in Section 13.21.
Budgets: As defined in Section 7.03(a)(i).
Business Plan: As defined in Section 7.03(a)(i).
Business Day: Monday through Friday of each week, except
that a legal holiday recognized as such by the Government of the United States
and any other day on which banks in the State of New York are required or
permitted to be closed shall not be regarded as a business day.
Buy-Sell Lockout or Buy-Sell Lockouts: As defined in Section
9.05(a).
Capital Account: means, with respect to any Member, the
capital account of such Member maintained pursuant to Section 6.01, including
all additions thereto and subtractions therefrom pursuant to this Agreement.
Capital Budget: As defined in Section 7.03(a)(i).
Capital Contribution: Any property (including cash)
contributed to the LLC by or on behalf of a Member.
Capital Improvements: Any renewals, replacements and
improvements to the Properties which in accordance with GAAP must be
capitalized.
Cash Reserves: Reserve funds established by the Operating
Member to pay LLC Charges as set forth in the Business Plan or as reasonably
approved by TIAA LLC. TIAA LLC hereby approves an initial Cash Reserve of
$250,000 to be held by the LLC, which shall be in addition to any "Property
Level Reserves" (as such term is defined in each Management Agreement).
Certificate: As defined in the recitals to this Agreement.
Change in Control: Means the occurrence of any Person or
group (as such term is used in Section 13(d)(3) and 14(d)(2) of the Exchange
Act), other than the Permitted Holders, being or becoming the beneficial owner
(as such term is used in Section 13(d)(3) and 14(d)(2) of the Exchange Act),
directly or indirectly, of more than 50% of the Voting Stock of a Reckson
Party, including by way of merger, consolidation or otherwise. For purposes of
this paragraph "Permitted Holders" means (a) Teachers, (b) Senior Management
of Reckson Associates, (c) the spouses, issue, parents and first cousins of
Senior Management of Reckson Associates and the first cousins of the spouses,
issue and parents of the Rechlers, (d) trusts for the benefit of the Persons
described in clause (b) and (c) of this definition, (e) entities controlling
or controlled by foregoing Persons and (f) in the event of the death of any
such individual Person, heirs or testamentary legatees of such Person;
provided, that the parties described in (c), (d) and (e) shall only be deemed
Permitted Holders so long as a majority of the Persons holding the positions
of executive vice president or higher at Reckson Associates are either Senior
Management of Reckson Associates or individuals with at least 10 years
experience in owning or operating commercial real estate. For purposes of this
definition "Voting Stock" means equity interests in a corporation or other
Person with voting power under ordinary circumstances entitling the holders
thereof to elect the Board of Directors or other governing body of such
corporation or Person.
Change in Control Notice: As defined in Section
9.06(a)(ii)(A).
Closing: As defined in the recitals to this Agreement.
Code: The Internal Revenue Code of 1986, as in effect and
hereafter amended, and, unless the context otherwise requires, applicable
regulations thereunder. Any reference herein to a specific section or sections
of the Code shall be deemed to include a reference to any corresponding
provision of future law.
Conflict Notice: As defined in Section 9.06(a)(ii)(A).
Contracts: As defined in Section 12.01(a)(xiii).
Contributing Member: As defined in Section 5.02(b)(i).
Contributing Member Contribution: As defined in Section
5.02(b)(ii).
Conversion Date: As defined in Section 5.02(b)(ii).
CPI: The Consumer Price Index for All Urban Consumers
(CPI-U), All Items, applicable to the N.Y.-Northeastern N.J. area (1982-84 =
100) for urban wage earners and clerical workers, as published by the U.S.
Department of Labor, Bureau of Labor Statistics. If such Consumer Price Index
is discontinued or otherwise revised during the term of this Agreement, the
Consumer Price Index for All Urban Consumers (CPI-U), All Items, U.S. City
Average (1982-84 = 100) for urban wage earners and clerical workers, as
published by the U.S. Department of Labor, Bureau of Labor Statistics, shall
be used, and if such national index is discontinued or otherwise revised
during the term of this Agreement, such other government index or computation
with which it is replaced shall be used in order to obtain substantially the
same result as would be obtained if the Consumer Price Index had not been
discontinued or revised.
CPI Increase: As of any date during the term of this
Agreement (such date, the "Determination Date"), the percent of increase, if
any, in the CPI for month in which the applicable Determination Date occurs
over the CPI for September, 2000. The parties agree that if such percentage
increase is not an even multiple of 10%, such percentage shall be reduced to
the next lowest even multiple of 10%.
Damages: As defined in Section 12.01(b).
Default Amount: As defined in Section 5.02(b)(i).
Default Loan(s): As defined in Section 5.02(b)(i).
Default Loan Period: As defined in Section 7.02(b).
Default Rate: The lesser of (a) the Prime Rate plus 2% and
(b) the maximum interest rate permitted by law.
Deposit: As defined in Section 9.04(a)(i).
Disputed Amount: As defined in Section 9.06(a)(ii)(A).
Election Period: As defined in Section 5.02(b)(i).
ERISA Problem: As defined in Section 9.06(a)(ii)(A).
Escrow Agent: As defined in Section 9.04(a)(i).
Final Plan: As defined in Section 7.03(a)(i).
First Refusal Notice: As defined in Section 9.04(a)(i).
Fiscal Year: As defined in Section 8.02.
Frontline: As defined in Section 13.25.
GAAP: Generally accepted accounting principles consistently
applied.
Ground Lease: The Lease dated October 28, 1983 by and
between County of Nassau and Avon Park Management Associates, Inc. (as amended
and assigned through the date hereof) with respect to 90 Merrick.
Indemnitees: As defined in Section 13.22(a).
Indemnity Laws: As defined in Section 13.22(b).
Initial Period: As defined in Section 5.02(b)(ii).
Initial Portfolio Valuation: As defined in Section 6.01(a).
Initial Working Capital: As defined in Section 5.02(a).
Interest Alteration: As defined in Section 9.01(c).
Initial Working Capital: As defined in Section 5.02(a).
Institutional Lender: means a savings bank, a savings and
loan association, a commercial bank or trust company, a private pension fund,
a credit union or company, an insurance company, a religious, educational or
eleemosynary institution, a federal, state or municipal employee's welfare,
benefit, pension or retirement fund, any governmental agency or entity insured
by a governmental agency, any brokerage or investment banking organization,
opportunity fund or any other Person reasonably satisfactory to TIAA LLC,
which is engaged in the business of making loans and whether acting in its own
capacity or on behalf of one or more third parties, who need not be
Institutional Lenders, or any Affiliate of any of the foregoing; provided,
that each of the above entities shall qualify as an Institutional Lender only
if it (together with its Affiliates) shall have net assets or a net equity or
combined capital and surplus, as the case may be, of not less than
$250,000,000.
Interest: As to any Member, all of the interest of that
Member in the LLC, including, without limitation, such Member's (i) right to a
distributive share of the income, gain, losses and deductions of the LLC in
accordance with this Agreement, and (ii) right to a distributive share of LLC
Assets.
Involuntary Change in Control: As defined in Section
9.06(a)(ii)(A).
Joint Decisions: As defined in Section 7.02.
Lease: Any lease, license or other agreement now or
hereafter entered into which permits the use and occupancy of any portion of
any Property.
Leasing Costs: With respect to any Lease, the costs payable
by the LLC for tenant improvements, tenant allowances and payments, leasing
commissions, costs incurred in connection with the LLC or any Property Owner
assuming a tenant's lease obligations with respect to real property other than
the Properties and costs incurred in connection with the LLC's or any Property
Owner's exercise of a right to "take-back" space in any of the Properties in
connection with the premises demised under such Lease for the term thereof
(calculated on a per rentable square foot basis of the space demised under
such Lease).
Leasing Guidelines: As defined in Section 7.03(a)(i).
Lesser Price Offer: As defined in Section 10.01(a).
Legal Requirements: All laws, statutes, or ordinances,
including building codes, subdivision, zoning regulations, urban redevelopment
plans, fire, health, safety, pollution, environmental protection and safety
laws, OSHA requirements, and the orders, rules, regulations, directives and
requirements of any federal, state or local governmental or quasi-governmental
authority which are applicable to any Property or the LLC; all requirements,
obligations, terms, restrictions, provisions and conditions of all covenants,
conditions, easements, rights of way, instruments now or hereafter applicable
to any Property whether or not of record; and all rules, regulations and
requirements of any insurance company insuring all or any part of any
Property.
LLC: As defined in the recitals to this Agreement.
LLC Accountants: Ernst & Young LLP, and its successor;
▇▇▇▇▇▇, ▇▇▇▇ and Company and its successor or such other firm of independent
certified public accountants which shall be one of the five largest accounting
firms in the United States chosen by Operating Member, or, if not one of the
above-mentioned accounting firms, then such firm as is reasonably approved by
TIAA LLC.
LLC Act: As defined in the recitals to this Agreement.
LLC Assets: All assets and property, whether tangible or
intangible and whether real, personal or mixed, at any time owned by or held
for the benefit of the LLC.
LLC Charges: For a given period of time, a sum equal to the
aggregate of the expenditures, charges and costs actually paid by the LLC or
the Property Owners during such period of time in accordance with the terms of
this Agreement including, without duplication or limitation:
(a) expenses, costs and charges in connection with the
ownership, operation, management or leasing of all or any portion of the
Properties, the LLC or the Property Owners;
(b) expenses, costs and charges in connection with the
repair, maintenance, replacement, alteration of or Capital Improvement to any
portion of the Properties, including any casualty or condemnation losses, to
the extent that the losses are not reimbursed during such period by any third
party responsible therefor or through insurance maintained by the LLC or any
of the Property Owners;
(c) all payments of principal and interest on loans to the
LLC or any of the Property Owners;
(d) all sales, payroll, real estate, personal property,
occupancy and other excise, property, privilege or other taxes and assessments
imposed upon the Properties, the LLC or any Property Owners ("Taxes");
(e) utility costs and deposits and other costs and deposits
required to obtain or lease any service or equipment relating to the
Properties;
(f) management fees, leasing fees and reimbursements payable
to the Managing Agent pursuant to the Management Agreement ("Management
Fees");
(g) Leasing Costs;
(h) the net increase, if any, in the Cash Reserves during
such period of time;
(i) the fees and expenses of the LLC or the Property Owners
for accountants, attorneys, architects, engineers, appraisers and other
professionals retained by or on behalf of the LLC or any Property Owners in
accordance with the terms hereof; and
(j) all other appropriate and necessary costs and expenses
of the LLC or any Property Owner incurred in accordance with this Agreement.
Notwithstanding the foregoing, there shall, however, be
excluded from LLC Charges:
(i) all non-cash items such as depreciation;
(ii) amounts distributed to the Members pursuant to this Agreement; (iii) all
payments and expenses deducted from the proceeds of a Major Capital Event to
determine the Net Extraordinary Cash Flow; (iv) any expense, cost or charge
enumerated in clauses (a) through (g), (i) or (j) above, to the extent such
expense, cost or charge was paid from Cash Reserves; and (v) any and all
expenses, obligations or liabilities which are specifically stated to be those
of Reckson or TIAA LLC (rather than the LLC) under this Agreement.
LLC Charges shall be determined on the cash basis of
accounting.
Loan: As defined in Section 10.03(a).
Loan Closing Date: As defined in Section 10.03(b)(i).
Loan Commitment: As defined in Section 10.03(b)(i).
Loan Guidelines: As defined in Section 10.03(a).
Major Capital Event: Any extraordinary transaction with
respect to the LLC or any Property or Property Owner which generates cash
receipts other than ordinary operating income, including, without limitation,
sales of real or personal property (other than sales of personal property in
the ordinary course of business), sales of interests in any Property Owner or
the LLC, borrowings (whether secured or unsecured) by the LLC or any Property
Owner, condemnations (and conveyances in lieu thereof), recoveries relating to
damage to any Property, and receipts of insurance proceeds relating to damage
to any Property.
Majority-Owned Affiliate: With respect to a specified
Person, an Affiliate of such Person in which such Person owns, directly or
indirectly, more than 50% of the ownership interests in such Affiliate.
Management Agreement: Each management and leasing agreement
governing the management and leasing of a Property between a Property Owner
and Managing Agent in the form attached hereto as Exhibit A, as each such
agreement may be modified, amended or restated from time to time in accordance
with this Agreement and any replacement management and leasing agreement
entered into in accordance with the provisions of this Agreement.
Management Fees: As defined in the definition of LLC Charges.
Managing Agent: Reckson Management Group, Inc. or any
successor thereto or any replacement managing agent appointed in accordance
with the terms hereof.
Managing Directors: As defined in Section 12.01(a).
Marketing Period: As defined in Section 10.01(a).
Material Business Conflict: means a material adverse effect
on Teachers' overall ability to act as a pension fund advisor, a custodian of
state tuition accounts, an insurer or in its then existing capacity in any
other separate line of business which it may maintain.
Member: Means, at any time, any person or entity admitted
and remaining as a member of the LLC pursuant to the terms of this Agreement.
As of the date of this Agreement, the Members of the LLC are Reckson and TIAA
LLC.
Member Contributions: As defined in Section 5.01(a)(iii).
Member Debtor: As defined in Section 9.09(a).
Modified Buy-Sell Rights: As defined in Section
9.06(a)(ii)(B).
Necessary Expenses: Means expenses required to provide
necessary services for the Properties and to operate and maintain the level
and quality of services for the Properties provided as of the date hereof,
plus (without duplication) (i) any amounts required to comply with (A) all
applicable Legal Requirements, (B) obligations under Leases other than the
general obligation to maintain the applicable Property in a first class manner
and (C) other contractual obligations to third parties; (ii) utility charges,
ground rent, amounts payable to Manager under the Management Agreement, wages
and benefits to employees and insurance premiums; and (iii) amounts necessary
to avoid imminent danger to life or property.
Net Cost: As defined in Section 7.02(a)(ii).
Net Extraordinary Cash Flow: The amount, if any, remaining
after subtracting from cash receipts arising from a Major Capital Event (a)
all expenses of the LLC related to such Major Capital Event and (b) such
reserves for the business of the LLC as may be reasonably established by the
Operating Member and reasonably approved by TIAA LLC. Net Extraordinary Cash
Flow shall be determined on the cash basis of accounting.
Net Ordinary Cash Flow: For any given period of time, the
Receipts of the LLC for such period less the LLC Charges of the LLC for such
period. Net Ordinary Cash Flow shall be determined on the cash basis of
accounting.
Net Income and Net Loss mean, respectively, for any period,
the taxable income and taxable loss of the LLC for such period as determined
for U.S. federal income tax purposes (inclusive of items required to be
separately accounted for under Section 702(a) of the Code), provided that for
purposes of determining Net Income and Net Loss and each item thereof (and not
for income tax purposes) (a) there shall be taken into account any tax exempt
income of the LLC, (b) any expenditures of the LLC which are described in
Section 705(a)(2)(B) of the Code or which are deemed to be described in
Section 705(a)(2)(B) of the Code pursuant to Regulations under Section 704(b)
of the Code shall be treated as deductible expenses, (c) if any LLC Asset has
a Book Value which differs from its adjusted tax basis as determined for U.S.
federal income tax purposes, income, gain, loss and deduction with respect to
such LLC Asset shall be computed based upon the LLC Asset's Book Value rather
than its adjusted tax basis, (d) items of gross income or deduction allocated
pursuant to Section 6.03, including "nonrecourse deductions" and "partner
nonrecourse deductions", shall be excluded from the computation of Net Income
and Net Loss, and (e) if the Book Value of any LLC Asset is adjusted pursuant
to clauses (b) through (d) of the definition thereof, the amount of such
adjustment shall be taken into account as gain or loss for purposes of
computing Net Income and Net Loss.
Non-Contributing Member: As defined in Section 5.02(b).
Non-Approved Entity: As defined in Section 9.06(a)(ii)(A).
Non-Approving Member: As defined in Section 10.01(a).
Non-Operating Member: Means TIAA LLC and any party
succeeding to the Interest of TIAA LLC.
Non-Transferring Member: As defined in Section 9.04(a)(i).
Offering Notice: As defined in Section 7.05.
Offering Price: As defined in Section 9.04(a)(i)(B).
OM Decisions: As defined in Section 7.02(c).
OM Termination Event: As defined in Section 7.02(c).
Operating Budget: As defined in Section 7.03(a)(i).
Operating Member: Means Reckson and any party succeeding to
the Interest of Reckson or its rights hereunder.
Overage Rent: As defined in Section 5.01(b)(v).
Parent: As defined in Section 9.01.
Percentage Interest: A Member's percentage of the total
Interests of the Members. The initial Percentage Interests of the Members
shall be Reckson: 51% and TIAA LLC: 49% and shall be subject to adjustment as
provided in Section 5.02(b).
Person: Any individual, corporation, association,
partnership, limited liability company, joint venture, trust, estate or other
entity or organization.
Pledge: As defined in Section 9.01(b).
Prime Rate: Means the rate of interest per annum for U.S.
Dollar loans publicly announced from time to time by Chase Manhattan Bank,
N.A. (or any successor thereto) as its prime rate in effect in its principal
office in New York City.
Proceeding: As defined in Section 12.01(b).
Properties Appraised Market Value: As defined in Section
9.06(a)(ii)(A).
Property and Properties: As defined in the recitals to this
Agreement.
Property Commitment Period: As defined in Section 9.05(c).
Property Offer Notice: As defined in Section 9.05(a).
Property Offering Member: As defined in Section 9.05(a).
Property Owners: As defined in the recitals to this
Agreement.
Property Purchasing Party: As defined in Section 9.05(d).
Property Receiving Member: As defined in Section 9.05(a).
Property Recommending Member: As defined in Section 10.01(a).
Property Selling Party: As defined in Section 9.05(d).
Proposed Addition: As defined in Section 9.06(a)(i).
Proposed Loan Notice: As defined in Section 10.03(b).
Proposed Non-Approved Entity Change in Control: As defined
in Section 9.06(a)(ii)(A).
Proposed Non-Approved Entity Transfer: As defined in Section
9.06(b)(i).
Purchaser: As defined in Section 9.09(a).
Put Closing Date: As defined in Section 9.06(a)(ii)(A).
Put Election Notice: As defined in Section 9.06(a)(ii)(A).
Put Sale: As defined in Section 9.06(a)(ii)(A).
Put Sale Price: As defined in Section 9.06(a)(ii)(A).
Real Estate Operating Company: Means a "real estate
operating company" within the meaning of the U.S. Department of Labor's "plan
asset" regulations at 29 C.F.R. ss. 2510.3-101.
Receipts: For any given period of time, a sum equal to the
aggregate of all amounts actually received by the LLC or any of the Property
Owners from or in respect of any Property or other LLC Asset during such
period, including, without limitation:
(a) all rents, percentage rent, expense reimbursements,
termination fees and other charges received from tenants and other occupants
of the Properties;
(b) proceeds of rent insurance and business interruption
insurance;
(c) all utility or other deposits returned to the LLC or any
Property Owner, which deposits were made on or after the date hereof or for
which apportionment was made pursuant to Section 5.01(b);
(d) interest, if any, earned on tenants' security deposits
or escrows to the extent unconditionally retained and security deposits to the
extent applied pursuant to the provisions of the applicable Leases;
(e) interest, if any, earned and available to the LLC on any
Cash Reserves or other LLC funds, or on any escrow funds deposited by the LLC
or any Other Property Owner with others;
(f) the amount of any net reduction of Cash Reserves; and
(g) cash or other receipts (other than receipts from a Major
Capital Event) received by the LLC or any Property Owner from any other
source.
Receipts shall be determined on the cash basis of
accounting.
Notwithstanding the foregoing Receipts shall not include (u)
amounts contributed or loaned by the Members to the LLC pursuant to this
Agreement including without limitation the TIAA LLC Contribution, (v) each
tenant's security deposit and interest thereon, if any, as long as the LLC has
a contingent legal obligation to return that deposit or such interest thereon,
(w) amounts which, although held by a Property Owner, may not be distributed
by such Property Owner to the LLC or by the LLC to its Members under
applicable law or pursuant to the terms of an agreement with a third party,
(x) revenues to which Reckson is entitled under Section 5.01(b), (y) amounts
arising from a Major Capital Event and (z) amounts which either Reckson or
TIAA LLC are entitled to retain pursuant to Section 13.04.
Rechlers: As defined in the definition of "Change in
Control".
Reckson: As defined in the preamble to this Agreement.
Reckson ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ LLC: As defined in the
recitals to this Agreement.
Reckson Amount: As defined in Section 9.06(a)(ii)(A).
Reckson Artwork: As defined in Section 13.32.
Reckson Associates: Reckson Associates Realty Corp. or,
subject to the provisions of Section 9.06(a)(ii), any successor thereto by
merger or acquisition of all or substantially all of its assets,
reorganization or otherwise.
Reckson Companies: Reckson OP and Reckson Associates or,
subject to the provisions of Section 9.06(a)(ii) Agreement, any successor to
either of the foregoing thereto by merger or acquisition of all or
substantially all of their assets, by reorganization or otherwise or, subject
to the provisions of Section 9.06(a)(ii), any successor thereto by merger or
acquisition of all or substantially all of its assets, reorganization or
otherwise.
Reckson Contribution: As defined in Section 5.01(a)(ii).
Reckson Knowledge Individuals: As defined in Section
12.01(a).
Reckson OP: Reckson Operating Partnership, L.P., a Delaware
limited partnership or, subject to the provisions of Section 9.06(a)(ii), any
successor thereto by merger or acquisition of all or substantially all of its
assets, reorganization or otherwise.
Reckson Owner: Reckson OP or any other Affiliate of Reckson
which owned a Property prior to the date hereof.
Reckson Party: Reckson Associates; provided that in the
event Reckson Associates ceases to be the sole general partner of Reckson OP,
"Reckson Party" shall be deemed to mean both Reckson Associates and Reckson
OP.
Reckson Short Hills LLC: As defined in the recitals to this
Agreement.
Recording Office: The office of the Secretary of State of
the State of Delaware.
Recourse Coverage: As defined in Section 9.04(b)(iv).
Regulations: The regulations issued by the United States
Department of the Treasury under the Code as now in effect and as they may be
amended from time to time, and any successor regulations.
Regulatory Allocations: As defined in Section 6.03(b).
Rep. Basket: As defined in Section 12.01(b).
Rep. Closing Date: As defined in Section 12.01(b).
Response Notice: As defined in Section 7.05.
Responsible Member: As defined in Section 9.07(a)(ii).
Revenues: As defined in Section 5.01(b)(i).
ROFO Period: As defined in Section 10.03(b).
ROFR Closing Date: As defined in Section 9.04(a)(i).
ROFR: Means the Right of First Refusal contemplated in
Section 9.04.
Rules: As defined in Section 13.30
Sale Closing Date: As defined in Section 9.05(d) and
10.01(b).
Sale Prices: As defined in Section 9.05(b).
Sale Property or Sale Properties: As defined in Section
9.05(a).
Selling Property Owner: As defined in Section 10.01(b).
Senior Management of Reckson Associates: Means the majority
of individuals who hold a position of executive vice president or higher at
Reckson Associates at the time of a Change in Control of Reckson, but
excluding those who did not hold such a position 270 days prior to the
applicable Change in Control. As of the date hereof the following individuals
hold the position of executive vice president or higher at Reckson: ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇
(collectively, the "Rechlers"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
Special Affiliate: Any Person that owns, is owned by, or is
under common ownership with, directly or indirectly, fifty-one percent (51%)
or more of the ownership interest of the specified Person; provided, that any
Person owning the remaining interests in such specified Person does not
possess more approval rights in the aggregate of the specified Person than
TIAA LLC has under this Agreement.
Stamford Towers: As defined in the recitals to this
Agreement.
Taxes: As defined in the definition of LLC Charges.
Teachers: Means Teachers Insurance and Annuity Association
of America, a New York corporation.
Tenant: As defined in Section 12.01(a)(i)(A).
Termination Date: The 99th anniversary of the date of this
Agreement.
Third Party Offer Notice: As defined in Section 10.01(a).
Third Party Property Purchasing Party: As defined in Section
10.01(b).
Third Party Sale Price: As defined in Section 10.01(a).
Third Party Sale Property or Third Party Sale Properties: As
defined in Section 10.01(a).
TIAA Determined Non-Approved Entity: As defined in Section
9.06(a)(ii)(A).
TIAA LLC: As defined in the preamble to this Agreement.
TIAA LLC Conflict: As defined in Section 9.06(a)(ii)(A).
TIAA LLC Contribution: As defined in Section 5.01(a)(i).
Transfer: As defined in Section 9.01(a).
Transfer Notice: As defined in Section 9.01(b)(i).
Transfer of an Interest: As defined in Section 9.01(e).
Transferee: As defined in Section 9.01(h).
Transferring Member: As defined in Section 9.04(a).
Undistributed Income: As defined in Section 13.05.
Upper Tier Pledge: As defined in Section 9.01(g).
Upper Tier Transfer: As defined in Section 9.01(d).
Valid Third Party Contract: As defined in Section 10.01(a).
ARTICLE II
FILING/ADMISSION; NAME; PLACE OF BUSINESS
2.01 Filing/Admission of TIAA LLC
(a) The Members shall execute and acknowledge, and the
Operating Member shall promptly file or record with the proper offices in each
jurisdiction and political subdivision in which the LLC does business, and if
necessary or desirable, cause to be published, such certificates or amended
certificates, if any, as are required or permitted by the LLC Act, or any
fictitious name act, or act relating to qualification to do business, or
similar statute or any rule or regulation in effect in such jurisdiction or
political subdivision. The Members shall further execute and acknowledge and
the Operating Member shall promptly file or record such amended certificates
or additional certificates or instruments of whatever nature as may from time
to time be called for or required by such statutes, rules or regulations to
permit the continued existence and operation of the LLC.
(b) TIAA LLC is hereby admitted to the LLC as a Member upon
the terms and conditions set forth herein.
2.02 Name of LLC
The name under which the LLC shall conduct its business is
RT Tri-State LLC or such other name as the Members may select. In the event
that either of the Members shall transfer its Interest pursuant to the
provisions set forth herein or shall transfer its interest in one or more
Properties, the name under which the LLC shall conduct its business shall be
modified at the transferring Member's request such that the transferring
Member's name (or any reference to such name (including its initials)) shall
be removed from the LLC's name or, if applicable, the name of the Property
Owner in which such Member no longer owns an interest, at the time of such
transfer.
2.03 Place of Business
The location of the principal place of business of the LLC
shall be c/o Reckson Associates Realty Corp., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The principal place of business of the LLC shall be changed to
such other place or places within the United States as the Operating Member
may from time to time determine, provided that, if necessary, the Members
shall amend the Certificate in accordance with the applicable requirements of
the LLC Act. The Operating Member may establish and maintain such other
offices and additional places of business of the LLC, either within or without
the State of New York, as TIAA LLC shall approve, such approval not to be
unreasonably withheld.
2.04 Registered Office and Registered Agent
The street address of the initial registered office of the
LLC shall be Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the LLC's registered agent at such address shall be CT
Corporation. The Operating Member may hereafter change the registered agent
and registered office and, if necessary, the Members shall amend the
Certificate in accordance with the applicable requirements of the LLC Act to
reflect such change.
ARTICLE III
PURPOSES AND POWERS OF LLC
3.01 Purposes
The purposes of the LLC shall be to acquire, own, hold,
finance, lease, operate and sell and otherwise dispose of or deal with and
exercise any rights it may have with respect to (i) the Property Owners and
(ii) in the LLC's capacity as owner of the Property Owners, the Properties,
and to do all other things reasonably incident thereto, in accordance with the
terms of this Agreement.
3.02 Powers
The LLC shall have the power to do any and all acts and
things necessary, appropriate, advisable or convenient for the furtherance and
accomplishment of the purposes of the LLC, including, without limitation, to
engage in any kind of activity and to enter into and perform obligations of
any kind necessary to, or in connection with, or incidental to, the
accomplishment of the purposes of the LLC, so long as said activities and
obligations may be lawfully engaged in or performed by a limited liability
company under the LLC Act.
ARTICLE IV
TERM OF LLC
The existence of the LLC commenced on the date upon which
the Certificate was duly filed with the Recording Office and shall continue
until the Termination Date, unless dissolved and liquidated before the
Termination Date in accordance with the provisions of Article XI.
ARTICLE V
CAPITAL
5.01 Capital Contributions and Percentage Interests of
the Members
(a) (i) On the date hereof, TIAA LLC has made a Capital
Contribution to the LLC in cash in the amount of $135,975,000.00 in respect of
a 49% interest in the LLC (the "TIAA LLC Contribution"), which amount is being
adjusted as provided for in (b) below. The TIAA LLC Contribution was
immediately thereafter distributed to Reckson.
(ii) As of the date hereof, after taking into
account the distribution referred to in Section 5.01(a)(i) hereof, Reckson is
deemed to have contributed capital to the LLC of $141,525,000 (the "Reckson
Contribution").
(iii) The outstanding amount of each of the
TIAA LLC Contribution and the Reckson Contribution shall automatically (A)
be increased to reflect any additional Contributions made (or deemed made) by
Reckson or TIAA LLC, as the case may be, pursuant to Section 5.02 and (B)
shall be decreased to reflect any distributions of Net Extraordinary Cash Flow
made (or deemed made) to Reckson or TIAA LLC, as the case may be, after the
date hereof. The sum of (I) the amount of the Reckson Contribution (as so
increased or decreased) plus (II) the amount of the TIAA LLC Contribution
(as so increased or decreased) outstanding at any time is hereinafter referred
to as, the "Member Contributions").
(b) (i) As of 11:59 P.M. on the day immediately preceding
the date hereof, Reckson, on behalf of the Property Owners, shall close, or
cause to be closed, the books of the LLC and the Property Owners. Subject to
the further provisions of this Section 5.01, the revenues and expenses of the
Properties shall be apportioned and, except as otherwise provided herein (i)
Reckson shall be entitled to all revenues of the Properties from all sources,
including, without limitation, from the proceeds of operations, leasing, tax
certiorari proceedings (subject to the rights of tenants), utility or other
deposits, financing and payments on construction warranties and guarantees
(collectively, "Revenues") payable or accruing prior to the date hereof or
which are otherwise allocable to the period prior to the date hereof (whether
received before or after the date hereof), (ii) there shall be allocated to
Reckson all of the expenses of the Properties arising or accruing prior to the
date hereof, (iii) the LLC shall be entitled to all Revenues accruing from and
after the date hereof or which are otherwise allocable to the period on or
after the date hereof (whether received before or after the date hereof) and
(iv) there shall be allocated to the LLC all of the expenses of the Properties
arising or accruing on or after the date hereof. Revenues and expenses that
are allocable to a period of time falling in part before, and in part on or
after, the date hereof shall be apportioned between such respective portions
of the period in question according to the number of days in each, so that
Reckson will receive the portion of such revenues, and (except to the extent
otherwise provided herein) bear the portion of such expenses, apportioned to
the period before the date hereof, and the LLC will receive and bear the
balance of each.
(ii) Notwithstanding Section 5.01(b)(i), the
actual costs incurred in connection with the capital projects described on
Schedule 2-A and the costs set forth on Schedule 2-B shall be deemed to be
costs of the LLC.
(iii) All income, gains, losses, deductions and
credits of the LLC accruing prior to the date hereof shall be allocated to
Reckson. From and after the date hereof, the respective Interests of the
Members in the revenues, distributions, expenses, income, gains, losses,
deductions and credits of the LLC shall be in accordance with the provisions
of this Agreement.
(iv) For purposes of this Section 5.01(b),
Revenues for the period before the date hereof will not include rents that are
not payable in respect of such period notwithstanding the fact that generally
accepted accounting principles might treat some portion of the rents payable
in respect of the period after the date hereof as being allocable to the
period before the date hereof (e.g., because of straight-line accounting and
future rent step-ups).
(v) As to rental payments for fuel pass-alongs,
so-called escalation rent, percentage rent, or charges based upon real estate
taxes, operating expenses, labor costs, "▇▇▇▇▇▇'▇ wage rate," cost of living
increases or other similar items (such pass-alongs, escalation rent and
charges being collectively called "Overage Rent"), for the accounting period
in which the Closing occurs, if the date of this Agreement is prior to the
time when any such Overage Rent is payable, then such Overage Rent shall be
apportioned subsequent to the date hereof. The LLC shall receive in trust and
pay over to Reckson a pro-rated amount (on a per diem basis) of such Overage
Rent as and when collected. As to any Overage Rent payable subsequent to the
date hereof with respect to an accounting period which occurs prior to the
date hereof, the LLC shall receive and hold such Overage Rent in trust for
Reckson and pay the entire amount to Reckson promptly after receipt thereof.
Reckson shall furnish to the LLC all information with respect to the
accounting period in which the Closing occurs which is reasonably necessary
for the billing of such Overage Rent. If, prior to the date hereof, Reckson
shall collect any sums on account of Overage Rent for any accounting period
beginning prior to but ending subsequent to the date hereof, such sum shall be
apportioned as of the date hereof. The parties shall reconcile estimates of
Overage Rent under any Lease attributable to the period prior to the date
hereof with actual Overage Rent, when such amounts are actually determined by
the LLC after the date hereof. The LLC shall provide to Reckson an accounting
of all such amounts.
(c) Any and all amounts received by the LLC or any Property
Owner following Closing for rents due to Reckson prior to Closing (including
an amount equal to Reckson's share of rents receivable for the month in which
the Closing occurs) shall be paid to Reckson promptly after receipt. If at the
time of Closing any tenants are delinquent in the payment of rental, then any
rent received from any such tenant after the Closing shall be applied
thereafter in the following order of priority: (i) first, to rent arrearages
with respect to the month in which the Closing shall have occurred (subject to
apportionment pursuant to Section 5.01(b) above), (ii) second, to rent
arrearages with respect to the month immediately preceding the month in which
the Closing shall have occurred (which shall be paid to Reckson), (iii) third,
to rent arrearages with respect to the period following the month in which the
Closing shall have occurred (which shall be paid to the LLC) and, (iv) fourth,
to any other rent arrearages with respect to the period preceding the month in
which the Closing shall have occurred (which shall be paid to Reckson).
Notwithstanding the foregoing sentence, if a tenant specifies the particular
purpose and applicable time period for a payment, then such payment shall be
applied as so specified by the tenant. Any amounts so payable to Reckson after
the Closing shall be paid over by the LLC to Reckson promptly after receipt.
The LLC shall account to Reckson monthly with respect to same.
(d) If any tax reduction proceedings in respect of the
Properties are pending at the time of the Closing (other than proceedings in
respect of the current tax year or tax years commencing after the date hereof)
Reckson reserves, and shall have, the right to continue to prosecute the same
provided that Reckson shall not settle any claims in a manner which has a
material adverse effect on the LLC. The LLC shall have the right to prosecute
tax reduction proceedings for the current or subsequent tax years provided
that the LLC shall not settle the same in a manner which would have a material
adverse effect on a Reckson Owner. Any refunds or savings in the payment of
taxes resulting from tax reduction proceedings applicable entirely to tax
years prior to the current tax year shall belong to and be the property of
Reckson, and any refunds or savings in the payment of taxes applicable to the
tax years commencing from and after the date hereof shall belong to and be the
property of the LLC, subject in each case to the rights of any tenants to
receive any refunds. The refunds or savings in the payment of taxes applicable
to the current tax year (after payment of all attorneys' fees and other
expenses incurred in obtaining such refunds or savings and subject to the
rights of any tenants to receive refunds) shall be apportioned between Reckson
and the LLC on a per diem basis in accordance with Section 5.01(b)(i).
(e) (i) Reckson shall indemnify and hold harmless the LLC
and TIAA LLC from and against all loss, obligation, expense (including
reasonable counsel fees), damage and liability to the Properties or the
Property Owners resulting from claims asserted by third parties, but only if
and to the extent (A) such expenses, obligations and liabilities have arisen
or accrued prior to the date hereof or are allocable to the period prior to
the date hereof and (B) are not related to (I) the physical or environmental
condition of the Properties or any improvements located on the Properties or
any fixtures or equipment located thereon (except, solely with respect to the
environmental condition of the Properties, if Reckson has actual knowledge on
the date hereof that a claim in writing was received by a Reckson Owner
regarding such environmental condition during the period of time that a
Reckson Owner owned the applicable Property) or (II) any matters that would
ordinarily be covered by title insurance or are disclosed by the surveys of
the Properties (except for title claims as to which Reckson has actual
knowledge on the date hereof that a Reckson Owner received written notice of
during the period of time that such Reckson Owner owned the applicable
Property and which claims are not covered by TIAA LLC's title insurance
policy).
(ii) The LLC shall (and shall cause the Property Owners to)
defend, indemnify and hold harmless the Reckson Owners and their respective
Affiliates from all loss, obligation, expense (including reasonable counsel
fees), damage and liability in any way relating to claims asserted by third
parties relating to the Properties and/or the Property Owners but only to the
extent arising or accruing after the date hereof or which are allocable to the
period from and after the date hereof.
(f) The respective obligations of Reckson and the LLC with
respect to the matters set forth on Schedule 3 shall be as set forth on such
Schedule.
5.02 Additional Contributions
(a) The Members shall make additional Capital Contributions
in proportion to their respective Percentage Interests, in such amounts (i) as
may be required by the Business Plan, (ii) to pay any Necessary Expenses as
they become due if the LLC shall not have sufficient available Net Ordinary
Cash Flow or Cash Reserves to pay the same, (iii) to fund initial working
capital for the Property Owners in an amount agreed to by the Members on the
date hereof (the "Initial Working Capital") or (iv) as the Members may
otherwise agree. Such amounts shall be paid (A) in the case of additional
Capital Contributions required by the Business Plan, within 7 Business Days
after request therefor by the Operating Member (which request shall not be
given more than 45 days before the date on which such funds are required in
accordance with the Business Plan), (B) in the case of additional Capital
Contributions required to pay Necessary Expenses, within 15 Business Days
after request therefor by the Operating Member, (C) in the case of the Initial
Working Capital on the date hereof and (D) as the Members may otherwise agree.
Additional Capital Contributions which are required for the business of one of
the Property Owners shall be contributed by the LLC to such Property Owner (or
loaned by the LLC to the Property Owner on such terms as are determined by the
Members).
(b) If at any time or times either Member shall fail to
timely make any Capital Contribution which such Member is obligated to make
under Section 5.02(a) (such Member being referred to herein as a
"Non-Contributing Member"), and such failure shall continue for a period of 5
Business Days after notice of such failure from the other Member, the
Operating Member shall notify the other Member of such Member's failure to
make such Capital Contribution and the rights and remedies set forth below in
this Section 5.02 shall apply.
(i) The Member that has timely made its own
Capital Contribution (a "Contributing Member") may (but shall not be obligated
to), within 30 days after the expiration of the 5 Business-Day period referred
to above (such 30-day period is called the "Election Period") advance all or
any part of the portion of the Capital Contribution which the Non-Contributing
Member has failed to make (the amount so advanced, the "Default Amount") as a
loan (a "Default Loan") from the Contributing Member to the Non-Contributing
Member. The Contributing Member shall give notice thereof to the
Non-Contributing Member upon the Contributing Member's payment of the Default
Amount to the LLC. Any Default Loan shall bear interest on the unpaid
principal amount thereof at the Default Rate from the date advanced until the
date repaid.
(ii) If the Non-Contributing Member fails to repay
the full amount of any Default Loan plus all interest accrued thereon on or
prior to the date which is 180 days after the date such Default Loan was made
(such period of 180 days, the "Initial Period"), the Contributing Member shall
have an option for a period of 30 days thereafter to convert the outstanding
amount of the Default Loan plus all accrued interest thereon into a Capital
Contribution by the Contributing Member (a "Contributing Member
Contribution"). Such option shall be exercised, if at all, by written notice
(the date of such notice, the "Conversion Date") given not more than 30 days
after the end of the Initial Period. If the Contributing Member elects to make
a Contributing Member Contribution, (x) the Percentage Interest of the
Non-Contributing Member shall be decreased as of the Conversion Date by the
number of percentage points equal to the quotient (expressed as a percentage
and carried out to two (2) decimal places) of 110% of the amount so
contributed by the Contributing Member divided by the total amount of the
Member Contributions on the Conversion Date and (y) the Percentage Interest of
the Contributing Member shall be increased as of the Conversion Date by the
same number of percentage points. Except as set forth in Sections 5.02(e),
7.02(b), 7.02(c) and 10.03, the foregoing shall constitute the sole remedy of
the Contributing Member for the failure by the Non-Contributing Member to
repay the Default Loan.
(c) Unless and until a Default Loan is timely converted into
a Capital Contribution, a Default Loan may be prepaid without penalty or
premium. All payments in respect of a Default Loan shall be applied first on
account of accrued and unpaid interest and next on account of principal. If
more than one Default Loan is outstanding at the same time, all payments shall
be applied first to interest and principal outstanding on the oldest Default
Loan until the oldest Default Loan is paid off, before application to the next
oldest Default Loan.
(d) If the principal and interest due on a Default Loan
shall be converted into a Capital Contribution pursuant to Section
5.02(b)(ii), (x) no subsequent payment or tender of payment by the
Non-Contributing Member of the amount so converted or contributed shall affect
the Members' Capital Account and Percentage Interests as recalculated in
accordance with Section 5.02(b)(ii) and (y) the Non-Contributing Member shall
have neither the right nor the obligation to repay such interest and
principal.
(e) If any Member makes a Default Loan, then until the
earlier to occur of (i) the Conversion Date or (ii) the repayment in full of
such Default Loan plus all accrued interest thereon, all amounts which would
be distributed to the Non-Contributing Member under Sections 6.05 or 11.03 or
any other provision of this Agreement shall be paid to the Contributing Member
to repay such Default Loan and accrued interest. Such payments shall be
applied in accordance with the last two (2) sentences of Section 5.02(c), and
shall be considered, for all other purposes of this Agreement, to have been
distributed to the Defaulting Member.
(f) If any Contributing Member elects not to make a Default
Loan to the Non-Contributing Member, such Contributing Member shall have the
option (to be exercised within the Election Period (i) to have its Capital
Contribution (if previously made) returned (it being agreed that,
notwithstanding such return, such Member shall not be deemed a
Non-Contributing Member) or (ii) to treat the Non-Contributing Member's
Percentage Interest of the Capital Contribution made by such Contributing
Member as a Default Loan from such Contributing Member to the Non-Contributing
Member (in which event the provisions of (b) through (e) of this Section 5.02
shall be applicable thereto as if the Contributing Member had made a Capital
Contribution equal to its Percentage Interest of the Capital Contribution it
originally made and a Default Loan equal to the balance of the Capital
Contribution it originally made). If, within the Election Period, the
Contributing Member shall neither notify the Non-Contributing Member of an
election under this Section 5.02(f) nor make a Default Loan pursuant to
Section 5.02(b), the Contributing Member shall be deemed to have elected to
have its Capital Contribution returned.
(g) So long as there is no material adverse tax or other
consequence for Reckson, the LLC or any Property Owner or to the operation and
maintenance of any Property, at the request of TIAA LLC, all Capital
Improvements in excess of $100,000 per Capital Improvement (as increased by
the CPI Increase) to be funded by the LLC or the Property Owners shall be
funded from Capital Contributions to the LLC by the Members (in lieu of being
funded from Receipts of the LLC or the Property Owners.
5.03 Liability of Members
Except as otherwise provided in the LLC Act and this
Agreement, the debts, obligations and liabilities of the LLC, whether arising
in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the LLC, and the Members shall not be obligated personally for
any such debt, obligation or liability of the LLC solely by reason of being a
Member. The failure of the LLC to observe any formalities or requirements
relating to the exercise of its powers or management of its business or
affairs under the LLC Act or this Agreement shall not be grounds for imposing
personal liability on the Members for liabilities of the LLC.
5.04 Return of Capital
Except upon the dissolution of the LLC or as may be
specifically provided in this Agreement, no Member shall have the right to
demand or to receive the return of all or any part of its Capital Account or
its Capital Contributions to the LLC.
ARTICLE VI
ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS
6.01 Capital Accounts
(a) Each Member shall have a Capital Account which shall be
maintained in accordance with Regulations sections 1.704-1(b)(2)(iv) and
1.704-2. The Members agree that after consummation of the transactions
described in Section 5.01(a)(i) hereof, the Capital Account balances of the
Members on the date hereof are as follows:
TIAA LLC: $135,975,000.00
RECKSON: $141,525,000.00
The Members agree that on the date hereof the value of the
Properties, net of liabilities, is $277,500,000.00 (the "Initial Portfolio
Valuation").
(b) The Capital Account of each Member shall be increased
(i) by the amount of cash and the fair market value of any property (net of
any liability secured by such property that the LLC is considered to assume,
or take subject to, under Section 752 of the Code) contributed by such Member
to the LLC pursuant to Section 5.02 when such Capital Contribution is made
(ii) by any Net Income and gross income items allocated to such Member; and
(iii) as otherwise provided in this Agreement.
(c) The Capital Account of each Member shall be reduced by
(i) the amount of cash or the fair market value of any property (net of any
liability secured by such property that the Member is considered to assume or
take subject to Section 752 of the Code) distributed to such Member pursuant
to Section 6.05 when such distribution is made, (ii) the Net Loss and items of
deduction or expense allocated to such Member pursuant to Section 6.03
including, without limitation, any "partner nonrecourse deductions" (as
defined in Treas. Reg. Section 1.704-2(i)) and any "nonrecourse deductions"
(as defined in Treas. Reg. Section 1.704-2(b)) allocated to such Member
pursuant to Section 6.03 of this Agreement), and (iii) as otherwise provided
in this Agreement.
(d) Except as otherwise provided in this Agreement, whenever
it is necessary to determine the Capital Account of any Member, the Capital
Account of such Member shall be determined after giving effect to the
allocations of Net Income, Net Loss and other items realized prior or
concurrently to such time (including, without limitation, any Net Income and
Net Losses attributable to adjustments to Book Values with respect to any
concurrent distribution), and all contributions and distributions made prior
or concurrently to the time as of which such determination is to be made.
6.02 Allocation of Net Income or Net Loss
Net Income or Net Loss, for each Fiscal Year (or portion
thereof) shall be allocated to the Members in accordance with their Percentage
Interests. The provisions in this Agreement pertaining to allocations and
adjustments of the Capital Accounts are intended to comply with Code Section
704(b) and the Regulations thereunder. Subject to TIAA LLC's approval, not to
be unreasonably withheld or delayed, Reckson is hereby authorized to make
appropriate modifications to such allocations and adjustments when needed to
comply with Code Section 704(b) or the Regulations thereunder to the extent
such modifications would not result in any material modification of the
economic arrangement of the Members as reflected in this Agreement.
6.03 Allocations of Nonrecourse Deductions; Minimum
Gain Chargeback; Qualified Income Offset
(a) Notwithstanding any other provision of this Agreement,
(i) "partner nonrecourse deductions" (as defined in Regulations Section
1.704-2(i)), if any, of the LLC shall be allocated to the Member which bears
the economic risk of loss within the meaning of Regulations Section
1.704-2(i), and (ii) "nonrecourse deductions" (as defined in Regulations
Section 1.704-2(b)) of the LLC shall be allocated to the Members in accordance
with their Percentage Interests.
(b) This Agreement shall be deemed to include "qualified
income offset," "minimum gain chargeback" and "partner nonrecourse debt
minimum gain chargeback" provisions within the meaning of the Regulations
under Section 704(b) of the Code. Accordingly, notwithstanding any other
provision of this Agreement, items of gross income shall be allocated to the
Members on a priority basis to the extent and in the manner required by such
provisions. Any allocations required to be made pursuant to this Section
6.03(b) (the "Regulatory Allocations") shall be offset, to the extent possible
without causing the LLC to fail to comply with the Regulations under Section
704(b) of the Code, by special allocations of other items of LLC income, gain,
loss, or deduction, so that, after such special offsetting allocations have
been made, each Member's Capital Account balance will be equal to the Capital
Account balance such Member would have had if the Regulatory Allocations had
not been made.
6.04 Tax Allocations; Allocation of Income and Loss
With Respect to LLC Interests Transferred
(a) For federal income tax purposes, except as otherwise
provided in Section 6.04(b), each item of income, gain, loss and deduction
shall be allocated among the Members in the same manner as its corresponding
item of book income, gain, loss or deduction is allocated pursuant to this
Article VI.
(b) In accordance with Code Sections 704(b) and 704(c) and
the Regulations thereunder, income, gain, loss and deduction with respect to
any Property contributed to the capital of the LLC shall, solely for federal
income tax purposes, be allocated among the Members so as to take into account
any variation between the adjusted basis of such Property for federal income
tax purposes and its Book Value upon its contribution. If the Book Value of
any LLC Asset is adjusted, subsequent allocations of taxable income, gain,
loss and deduction with respect to such LLC Asset shall take account of any
variation between the adjusted basis of such LLC Asset for federal income tax
purposes and the Book Value of such LLC Asset in the manner prescribed under
Code Sections 704(b) and 704(c) and the Regulations thereunder. In
implementing the provisions of the prior two sentences, the LLC shall employ
the traditional allocation method described in Regulation Section 1.704-3(b).
(c) If any Interest is transferred during any Fiscal Year in
accordance with this Agreement, the Net Income or Net Loss (and other items
referred to in Section 6.02) attributable to such Interest for such Fiscal
Year shall be allocated between the transferor and the transferee by closing
the books of the LLC as of the date of the transfer, or by any other method
permitted under Code Section 706 and the Regulations thereunder and agreed to
by the Members, including the transferor and the transferee.
6.05 Distributions of Net Ordinary Cash
Flow and Net Extraordinary Cash Flow
(a) Distributions in Accordance with Percentage Interests.
Except as provided in Section 5.01, 5.02(e) and 11.03, Net Ordinary Cash Flow
and Net Extraordinary Cash Flow shall be distributed to the Members in
proportion to their respective Percentage Interests.
(b) Net Ordinary Cash Flow. The Operating Member shall
determine Net Ordinary Cash Flow at least monthly on a cumulative year-to-date
basis and apply and distribute Net Ordinary Cash Flow as provided in this
Section 6.05 on or before the 24th day of the following month. Notwithstanding
the preceding sentence, which is intended to permit interim distributions of
Net Ordinary Cash Flow, the Operating Member shall calculate Net Ordinary Cash
Flow on an annual basis and if the annual audited report of the LLC should
show that there was any over-distribution of Net Ordinary Cash Flow to a
Member, such Member shall repay the over-distribution within 30 days after
receipt of such report. If such annual audited report should show that there
was an under-distribution of Net Ordinary Cash Flow to a Member, such
under-distribution shall be paid to such Member within 30 after receipt of
such report.
(c) Net Extraordinary Cash Flow. The Operating Member shall
calculate Net Extraordinary Cash Flow (other than Net Extraordinary Cash Flow
arising from a sale incidental to the dissolution and liquidation of the LLC
which shall be distributed in accordance with Section 11.03) and apply and
distribute such Net Extraordinary Cash Flow to the Members, as provided in
Section 6.05, reasonably and promptly after the LLC's receipt thereof.
Notwithstanding the preceding sentence, which is intended to permit interim
distributions of Net Extraordinary Cash Flow, the Operating Member shall
determine Net Extraordinary Cash Flow on an annual basis and if the annual
audited report of the LLC should show that there was any over-distribution of
Net Extraordinary Cash Flow to a Member, such Member shall repay the
over-distribution within 30 days after receipt of such report. If such annual
audited report should show that there was an under-distribution of Net
Extraordinary Cash Flow to a Member, such under-distribution shall be paid to
such Member within 30 days after receipt of such report.
(d) No Restoration of Funds. Except as provided in Sections
6.05(b) and 6.05(c), no Member shall be required to restore to the LLC any
funds properly distributed to such Member pursuant to any of the provisions of
this Section 6.05 or pursuant to Section 11.03, unless required by applicable
law.
(e) Limitation on Distributions. No Member shall be entitled
to (i) receive any distribution from the LLC (including a withdrawal of any of
such Member's capital) except pursuant to this Section 6.05 and Section 11.03,
(ii) receive interest from the LLC upon any capital contributed to the LLC, or
(iii) receive property other than cash in return for such Member's Capital
Contributions.
6.06 Section 754 Election
The Operating Member shall cause the LLC to file on its tax
return for the year ending December 31, 2000 an election under Section 754 of
the Code to provide for an adjustment to the adjusted tax basis of LLC Assets.
ARTICLE VII
MANAGEMENT
7.01 General Scope of Duties and Authority
Except as specifically provided in this Agreement to the
contrary, the business and affairs of the LLC (including, without limitation,
the right of the LLC to take any action as a member of the Property Owners)
shall be carried on and managed by the Operating Member, who shall have full,
exclusive and complete right, power and authority with respect thereto.
Notwithstanding the foregoing, the Member that is not the Operating Member
shall upon request of the Operating Member, join in such execution and/or
execute and deliver any instruments the Operating Member may reasonably
require to confirm the Operating Member's authority hereunder. On the date
hereof, each Property Owner has entered into a Management Agreement with
Managing Agent governing the management and leasing of the Properties.
7.02 Joint Decisions
Notwithstanding the provisions of Section 7.01, the
Operating Member shall not take any of the following actions (collectively,
the "Joint Decisions") unless such Joint Decision has been approved by the
Non-Operating Member or is set forth in the Business Plan (it being understood
that for all purposes hereof, all Joint Decisions shall require the consent of
both the Operating Member and the Non-Operating Member); provided, with
respect to Sections 7.02(a)(i), 7.02(a)(ix), 7.02(a)(x), 7.02(b)(i) and
7.02(b)(iii) below, (i) such consent shall not be unreasonably withheld or
delayed (and with respect to Sections 7.02(a)(x) and 7.02(b)(iii) shall take
into account the timing and quality of the service to be performed and the
quality of the service provider) and (ii) if the other Member fails to grant
or deny its consent within 7 Business Days after a request for such consent
has been made, such consent shall be deemed given.
(a) At all times throughout the term of this Agreement the
following shall be a Joint Decision:
(i) entering into or causing any Property Owner to
enter into any Lease which is inconsistent with the Leasing Guidelines;
(ii) entering into or causing any Property Owner to
enter into any modification, amendment, surrender or termination, other than
pursuant to an option contained in a Lease, which (x) shortens the term of any
Lease, (y) reduces the amount paid by the tenant or (z) materially increases
the landlord's obligations thereunder, which in the case of (x), (y) or (z)
will have a Net Cost to the landlord of $100,000.00 (as increased by the CPI
Increase) or more with respect to a single transaction or $250,000.00 (as
increased by the CPI Increase) with respect to all of the transactions entered
into by all Property Owners in a single calendar year; provided, that without
the consent of the Non-Operating Member, the Operating Member may settle
disputes with tenants in the ordinary course of business and terminate Leases
of tenants in default. As used herein the term "Net Cost" means the amount, if
any, by which the present value (applying a discount rate of 10% per annum) as
of the effective date of the transaction in question of the aggregate amount
of payments to be foregone or made by the landlord (net of any amounts to be
received by the landlord in connection with the transaction) exceeds the
present value (applying such discount rate) as of such date of the revenue
which the applicable Property Owner reasonably expects to receive from a
replacement tenant with respect to whom such Property Owner has either
executed a Lease or which has been specifically identified and negotiations
with such replacement tenant have progressed to the point that the Operating
Member reasonably expects a Lease to be executed;
(iii) the modification or amendment by any Property
Owner of its Management Agreement (other than de minimis modifications or
amendments) or the waiver of any default under the Management Agreement or the
selection of a replacement Managing Agent or the determination of the terms of
any replacement Management Agreement;
(iv) any borrowing by the LLC or any Property Owner;
provided, that without the Non-Operating Member's consent, but subject to
Section 10.03(g), the Operating Member shall be permitted to effectuate a Loan
which meets the Loan Guidelines in accordance with Section 10.03 and may
effectuate equipment financing in the ordinary course of business;
(v) acquisition by the LLC or any Property Owner of any
real property other than the Properties;
(vi) except as otherwise provided in this Agreement,
selling, or otherwise disposing of any Property or Property Owner or issuing
additional Interests;
(vii) except as expressly provided in this Agreement
admitting to the LLC or to any Property Owner additional or successor Members;
(viii) taking any other action with respect to any
matter which, pursuant to the express provisions of this Agreement, requires
the approval, consent or agreement of all of the Members;
(ix) incurring or causing a Property Owner to incur any
expenditure, charge or cost in any given month (other than Necessary Expenses)
which is inconsistent with the Business Plan or exceeds the budgeted line item
cost in the Operating Budget and Capital Budget by more than 10% or increases
the Budgets by 7% or more (exclusive of increases attributable to temporary
timing differences arising in the ordinary course of business); provided,
however, that in incurring Necessary Expenses the Operating Member shall act
prudently and in the best economic interest of the LLC, Property Owners and
Properties;
(x) accepting or causing a Property Owner to accept a
bid in excess of $100,000.00 (as increased by the CPI Increase) for any
Capital Improvement, but only if and to the extent such bid is greater than
110% of the lowest conforming bid received for such Capital Improvement from
qualified bidders;
(xi) engaging in any transaction between the LLC or any
Property Owner and any Member or any Affiliate of a Member. Notwithstanding
anything to the contrary contained herein, the Members herein approve (1) the
form and substance of the Management Agreement entered into on the date hereof
(and the transactions with Affiliates permitted thereby) and (2) the
transactions described in Section 13.25 below, subject in each case to the
provisions thereof;
(xii) making or causing a Property Owner to make any
loans to any Person which are not in furtherance of the stated purposes or
intended business of the LLC or any Property Owner as set forth in this
Agreement or executing or becoming liable under any guaranty (in whatever
form) by the LLC or any Property Owner of the obligations of any Person other
than the LLC or any Property Owner or otherwise for ordinary course
obligations (e.g., endorsing checks);
(xiii) taking any action not in furtherance of the
stated purposes or intended business of the LLC as set forth in this
Agreement;
(xiv) entering or causing a Property Owner to enter
into any joint venture (regardless of the form of the joint venture) with
another Person;
(xv) executing and delivering any document which is
prohibited under the LLC Act or this Agreement;
(xvi) amending, modifying or terminating this Agreement
or, except as provided in this Agreement, any of the organizational documents
and organizational instruments governing the Property Owners; and
(xvii) commencement on behalf of the LLC or any
Property Owner of any voluntary case under any bankruptcy, insolvency or
similar law.
(b) The additional matters set forth in clauses (i)-(iii)
below shall require a Joint Decision only if and for so long as (x) the
Operating Member is a Non-Contributing Member, (y) the Non-Operating Member is
not a Non-Contributing Member and (z) the sum of (1) the principal amount of
all unpaid Default Loans which are then outstanding to Reckson made pursuant
to Section 5.02(b)(i) of this Agreement plus (2) the principal amount of any
Default Loans to Reckson converted to a Capital Contribution pursuant to
Section 5.02(b)(ii) of this Agreement, exceeds the amount of $5,000,000.00.
The period in which these Joint Decisions are required is herein referred to
as the "Default Loan Period":
(i) entering into a Lease inconsistent with the Leasing
Guidelines;
(ii) incurring or causing any Property Owner to incur
LLC Charges to perform any Capital Improvements exclusive of Capital
Improvements (w) required on account of emergencies (i.e. as necessary to
avoid imminent danger to life or property), (x) required to comply with Legal
Requirements or obligations under any Lease (other than a general obligation
under a Lease to maintain the Property in a first-class condition) or other
third party agreement binding upon the LLC or any Property Owner, (y) for
which the Operating Member had accepted bids (even if it had not executed a
binding contract) prior to the commencement of the Default Loan Period and (z)
which in the good faith judgment of the Operating Member are necessary to be
performed in order to avoid undue financial burden on the Property Owners or a
negative affect on any Property; and
(iii) accepting a bid in excess of $50,000.00 (as
increased by the CPI Increase) for any Capital Improvement, but only if and to
the extent the bid is greater than 110% of the lowest conforming bid received
for such Capital Improvement from qualified bidders.
(c) All decisions which theretofore may have been made
solely by the Operating Member in its capacity as such relating to the
operation and management of the LLC, the Property Owners and the Properties
("OM Decisions") shall become a Joint Decision, and the Operating Member, in
its capacity as such, will cease to be able to take any action without the
consent of the Non-Operating Member, if any of the events described in clause
(i) through (xii) below (each, an "OM Termination Event") occurs and, solely
with respect to clause (vi), (ix), (x) or (xii)(B) below, continues beyond any
applicable notice and grace periods contained herein, or if no such notice and
grace periods shall be contained herein, such OM Termination Event continues
uncured for a period of 15 days after written notice, provided, that if such
OM Termination Event is of the type described in clauses (x) or (xii)(B) and
cannot reasonably be cured in such cure period and the Operating Member shall
have commenced to cure such OM Termination Event within such cure period and
thereafter diligently and expeditiously proceeds to cure the same, such cure
period shall be extended for so long as it shall require the Operating Member
in the exercise of due diligence to cure such default, it being agreed that no
such extension shall be for a period in excess of 120 days from the date of
the initial written notice from the Non-Operating Member to the Operating
Member identifying an OM Termination Event and provided further, that no such
event shall constitute an OM Termination Event if prior to the date of the
occurrence of such event, an event of the same nature as those set forth in
clause (i), (vi), (vii) (viii) or (x) has occurred and is continuing on the
part of the Non-Operating Member. For the avoidance of doubt, the parties
confirm that, except as otherwise provided in Section 10.03(g), all of
Reckson's rights under Articles 9 and 10 are not "OM Decisions" and Reckson
may continue to exercise such rights notwithstanding the occurrence of an OM
Termination Event. The OM Termination Events are:
(i) The principal amount of all unpaid Default Loans
which are then outstanding to Reckson pursuant to Section 5.02(b)(i) of this
Agreement plus the principal amount of any Default Loan converted to a Capital
Contribution pursuant to Section 5.02(b)(ii) of this Agreement exceeds the
amount of $10,000,000.00, but only if the Non-Operating Member is not a
Non-Contributing Member;
(ii) a Change in Control described in Section
9.06(a)(ii)(B) occurs;
(iii) a transfer of the Operating Member's Interest
described in Section 9.06(b)(ii) occurs;
(iv) The Operating Member's pledged Interest is
purchased or acquired as a result of foreclosure by a Non-Approved Entity as
described in Section 9.09(a)(iii);
(v) any act committed by the Operating Member or any of
its partners, principals, agents or employees (but only if such act was
committed at the direction or express consent of a member of Senior Management
of Reckson), which constitutes willful malfeasance, fraud, embezzlement,
theft, or a felony and which materially ▇▇▇▇▇ the business affairs of the LLC;
(vi) the Operating Member fails to close or otherwise
materially defaults under Section 9.05 or 9.06(a) (with respect to the closing
of a Put Sale) of this Agreement;
(vii) The Operating Member transfers its Interest in
violation of Article 9 of this Agreement;
(viii) the Operating Member becomes Bankrupt;
(ix) Reckson effectuates a Loan in violation of Section
10.03 of this Agreement;
(x) the Operating Member willfully breaches any
material term(s) of this Agreement which causes a material adverse effect to
the value of the LLC taken as a whole; provided, that such action shall not be
deemed to be an OM Termination Event if, following the final determination of
the reduction in the LLC's value directly resulting from such breach (either
by agreement of the parties or by a decision of an arbitrator in accordance
with Section 13.30), the Operating Member repays such amount to the LLC;
(xi) the Managing Agent (provided the Managing Agent is
then an Affiliate of the Operating Member) improperly transfers the Management
Agreement and/or its interest therein in violation of the Management
Agreement; or
(xii) any act(s) (A) described in subparagraph (v) or
(viii) of this Section 7.02(c) or (B) any act described in subparagraph (x) of
this Section 7.02(c) which in the case of (A) or (B) occur with respect to the
Managing Agent (provided the Managing Agent is then an Affiliate of the
Operating Member).
If an OM Termination Event occurs, the Non-Operating
Member will have the option to terminate the Management Agreement on behalf of
the LLC and propose a successor Managing Agent, subject to the Operating
Member's reasonable approval as to the identity of such successor and the
terms of the Management Agreement. Any dispute between the Members regarding
whether an OM Termination Event has occurred shall be resolved by arbitration
in accordance with Section 13.30 and, pending the determination of the
arbitration, no OM Termination Event shall be deemed to have occurred.
7.03 Business Plan
(a) (i) On or before October 15th, or at least 75 days
before the beginning of each Fiscal Year, the Operating Member shall prepare
and submit to the Non-Operating Member for its reasonable approval a proposed
pro forma business plan in preliminary draft form for the promotion, operation
and maintenance of each Property, taking into consideration the then current
market conditions and for the operation of the LLC during the succeeding
Fiscal Year (each, as the same may be modified as provided below, a "Business
Plan"). Each Business Plan shall consist of an operating budget, as same may
be modified as provided below (the "Operating Budget"), a Capital Improvements
budget, as same may be modified as provided below (the "Capital Budget";
together with the Operating Budget, the "Budgets"), and the leasing
guidelines, as same may be modified as provided below (the "Leasing
Guidelines"). The form of Business Plan shall be substantially as set forth in
the Fiscal Year 2000 Business Plan for each Property, as more particularly set
forth on Exhibit C. Each Operating Budget shall show, on a month-by-month
basis, in reasonable detail, each line item of anticipated income and expense
including, without limitation, amounts required to establish, maintain and/or
increase Cash Reserves. Each Capital Budget shall show, in reasonable detail,
anticipated expenditures for Capital Improvements with respect to each
Property or portion thereof. The Leasing Guidelines for each Property shall
specify net average effective rent over the term of the Lease on a
Property-by-Property basis, and with respect to each Property, on a
space-by-space basis, taking into account Base Rent, the term of the Lease,
leasing commissions due to any outside leasing brokers or as set forth in the
Management Agreement, including overrides to the Managing Agent, tenant
improvements, free rent and any other tenant concessions. Unless the Operating
Member otherwise elects, the Leasing Guidelines shall provide for payment of a
"full commission" to outside leasing brokers representing a prospective
tenant. The Operating Member shall submit to the Non-Operating Member within
15 days after delivery of the proposed Business Plan (which shall in no event
be later than November 1) a revised Business Plan. Within 15 days following
delivery of the revised Business Plan, but no later than November 15, the
Non-Operating Member shall submit to the Operating Member any comments to the
revised Business Plan. The Operating Member shall submit to the Non-Operating
Member, within 15 days thereafter, but no later than December 1, the final
Business Plan incorporating the Non-Operating Member's comments and revisions
(the "Final Plan"). The Non-Operating Member shall approve or disapprove the
Final Plan within 15 days after receipt thereof, but no later than December
15, which, as so approved, shall constitute the "Business Plan". If Operating
Member shall fail to submit any comments or revisions to any draft of the
Business Plan on or prior to the dates set forth above, the Non-Operating
Member shall be deemed to have granted its consent to any such draft.
(ii) The Operating Member may, from time to time and at
any time, modify the Business Plan without the Non-Operating Member's consent
to reflect changes in market conditions and to provide for payment of
Necessary Expenses. If the Operating Member modifies the Business Plan
pursuant to the preceding sentence on account of changes in market conditions,
it shall give prompt written notice thereof to the Non-Operating Member
together with a written explanation of the reason(s) therefor. In other
circumstances, the Operating Member may, from time to time and at any time,
modify the Business Plan but only with the prior written consent of the
Non-Operating Member, which consent shall not be unreasonably withheld or
delayed and shall be deemed given if the Non-Operating Member fails to grant
or deny such consent within 10 Business Days after receipt of the proposed
modification. The Business Plan, as modified in accordance with this
subsection (ii) (either or without the consent of the Non-Operating Member),
shall be deemed to be the Business Plan for all purposes herein.
(iii) The Operating Member shall use diligent, good
faith efforts to cause the Managing Agent to operate each Property in
conformity with the applicable Budgets and the permitted variances therefrom
as set forth in Section 7.02(a)(ix). The Non-Operating Member acknowledges and
agrees that the Budgets are only an estimate and not a guaranty by the
Operating Member or the Managing Agent and there may be substantial variations
between the estimates set forth in the Business Plan and actual results.
(b) On the date hereof the Members have adopted the Business
Plan for each Property for the Fiscal Year 2000 as set forth on Exhibit C,
annexed hereto and made a part hereof. On the date hereof, the Members have
adopted for each Property a projection of the anticipated Capital Budget for
the Fiscal Years 2001 and 2002 as set forth on Exhibit D, annexed hereto and
made a part hereof, it being acknowledged and agreed by the Members that such
Capital Budget projection is only an estimate and not a guaranty by Reckson or
the Managing Agent and there may be substantial variations between the
estimates set forth in the projected Capital Budgets and the actual results.
The Operating Member shall be entitled to cause the Property Owners to pay all
LLC Charges as and when due to the extent such LLC Charges are either
consistent with the Business Plan or are a permitted variance therefrom as set
forth in Section 7.02(a)(ix) or are Necessary Expenses.
(c) During any period when the Members fail to reach
agreement on any portions of any Business Plan for any Property prior to the
commencement of the Fiscal Year to which such Business Plan relates, such
Property shall be operated during such Fiscal Year (i) in accordance with such
portions of such Business Plan as to which agreement has been reached, (ii) at
rates or levels of expenditures as are actually charged or incurred with
respect to Necessary Expenses and (iii) with respect to those portions of such
Business Plan which are discretionary and as to which agreement has not been
reached at rates or levels of expenditures comparable to those of the
preceding Fiscal Year, (x) increased by the CPI Increase (computed for this
purpose from the January 1st of the last Fiscal Year for which a Business Plan
was approved to December 31st of the Fiscal Year immediately preceding the
Fiscal Year to which the Business Plan in dispute relates) and (y) increased
or decreased to reflect increases or decreases in the percentage of such
Property occupied by tenants since the last Fiscal Year for which a Business
Plan was approved (but only to the extent the Operating Member reasonably
determines that such increases or decreases are reasonably related to the
level of such Property's occupancy).
7.04 Other Activities of Members
Any Member may own, purchase, sell, or otherwise deal in any
manner with any property not owned by the LLC or a Property Owner without
notice to any other Member, without participation of any other Member, and
without liability to the LLC, a Property Owner or any other Member and any
such Member may, without notice to any other Member and without obligation to
present to the LLC or to a Property Owner or any other Member an opportunity
of any kind whatsoever, acquire, sell (subject to Section 7.05, to the extent
applicable), finance, lease, operate, manage, develop or syndicate any real
property not owned by the LLC or of a Property Owner, free of any claim
whatsoever of the other Member or the LLC. No Member shall incur any liability
to the LLC or to a Property Owner or any other Member as a result of such
Member's interest in such other property or pursuit of such other business
interests, and neither the LLC nor any Member or Property Owner shall have any
right to participate in such other property or business or to receive or share
in any income or profits derived therefrom.
7.05 Right of First Negotiation on ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
If and so long as Reckson or any Affiliate of Reckson owns
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ("▇▇▇ JFK"), and, at any time during
the term of this Agreement Reckson or such Affiliate shall desire to sell 101
JFK pursuant to a single-property transaction (as opposed to selling 101 JFK
as part of a multi-property transaction, in which case this Section 7.05 shall
not apply and the rights of TIAA LLC under the Section 7.05 shall terminate
upon the consummation of such sale), Reckson shall give a notice to TIAA LLC
(the "Offering Notice"), which notice shall set forth the desire of Reckson or
such Affiliate to so sell 101 JFK. Within 10 Business Days after the giving of
the Offering Notice, TIAA LLC shall give a notice to Reckson (the "Response
Notice") stating whether or not TIAA LLC desires to purchase 101 JFK. If the
Response Notice states that TIAA LLC desires to purchase 101 JFK, then the
parties shall proceed to negotiate in good faith to reach agreement on the
terms of the sale and purchase of 101 JFK, and for a period of 15 Business
Days after the giving of the Response Notice, Reckson shall not negotiate with
any third party to sell 101 JFK. If, at the end of such 15 Business-Day
period, Reckson and TIAA LLC are unable to agree on the terms of such sale and
purchase for any reason, or if TIAA LLC shall fail timely to deliver the
Response Notice, then the rights of TIAA LLC under this Section 7.05 shall
terminate and Reckson may sell 101 JFK to any third party on any terms. The
parties further acknowledge that in the event 101 JFK is transferred to an
Affiliate of Reckson, this Section 7.05 shall not be triggered, but TIAA LLC's
right under this Section 7.05 shall be preserved and, in the event Reckson's
Affiliate shall desire to sell 101 JFK to a party which is not an Affiliate of
Reckson, Reckson shall cause such Affiliate to adhere to the terms of this
Section 7.05.
ARTICLE VIII
BANK ACCOUNTS; BOOKS AND RECORDS;
STATEMENTS; TAXES; FISCAL YEAR
8.01 Books of Account
At all times during the existence of the LLC, the books of
account of the LLC and each Property Owner shall be prepared and kept by the
Operating Member in accordance with GAAP, which shall reflect all LLC and each
Property Owner's transactions and shall be appropriate and adequate for the
LLC's and each Property Owner's business, and which books of account shall be
maintained at the principal place of business of the LLC. Any Member or its
duly authorized representatives shall have the right at any time to inspect
and copy such books of account during normal business hours upon reasonable
notice. Any Member and its duly authorized representatives shall have the
right to examine (and copy) or conduct an audit of the LLC's and each Property
Owner's books and records at any time during normal business hours and upon
reasonable notice at the LLC's principal place of business. Any such
examination or special audit (i.e., audits other than the annual audits for
the LLC and each Property Owner which shall be conducted as of December 31 at
the LLC's sole cost and expense) shall be performed at such Member's sole cost
and expense.
8.02 Fiscal Year
Unless the Members shall agree otherwise, the fiscal year of
the LLC and the Property Owners for financial, accounting, federal, state and
local income tax purposes (the "Fiscal Year") shall be the calendar year
(except that the first Fiscal Year of the LLC and the Property Owners (for
financial and accounting purposes) shall begin on the date hereof and the last
Fiscal Year of the LLC and the Property Owners shall end on the last day of
the term of this Agreement).
8.03 Bank Accounts
All funds of the LLC shall be deposited in the LLC's name in
one or more separate bank accounts (each, a "Bank Account") at a bank selected
by the Operating Member. Each such Bank Account shall be used exclusively for
the LLC's funds and no other funds shall be commingled therein. Withdrawals
may be made from such Bank Account only by the Operating Member and only for
purposes authorized under this Agreement. All withdrawals from the Bank
Account shall be made only upon the signature of an authorized signatory of
the Operating Member. The LLC may, at the Operating Member's option, establish
one or more bank accounts in the name of the Property Owners to hold the funds
of the Property Owners and/or security deposits of tenants or to comply with
the requirements of a lender to the LLC or to a Property Owner.
8.04 Financial Statements
Within 90 days after the end of each Fiscal Year, the
Operating Member shall prepare and deliver to the Non-Operating Member a
financial report of the LLC for the preceding Fiscal Year, including a balance
sheet, a statement of operations and statements of Members' Capital Accounts,
changes in financial position, Net Ordinary Cash Flow and Net Extraordinary
Cash Flow and Adjusted Net Ordinary Cash Flow, all of which shall be audited
by the LLC Accountants in accordance with generally accepted auditing
standards, and all of which (except for the reports of Net Ordinary Cash Flow
and Net Extraordinary Cash Flow and other reports prepared on a cash basis)
shall be prepared in accordance with GAAP (the "Annual Report"). All financial
statements prepared pursuant to this Section 8.04 shall present fairly the
financial position and operating results of the LLC. TIAA LLC acknowledges
that any financial projections that have been or are hereafter delivered to
TIAA LLC (the "Projections") (a) reflect a number of estimates, assumptions
and judgments concerning anticipated results of the Properties, (b) were not
prepared with a view to disclosure or compliance with published guidelines of
the SEC or the guidelines established by the American Institute of Certified
Public Accountants regarding projections or forecasts and (c) do not purport
to present operations at the Properties in accordance with generally accepted
accounting principles. The Projections are and will be subject to certain
risks and uncertainties that could cause actual results to differ
substantially from the Projections. None of Reckson or any of its Affiliates
or representatives has made or makes any representation to TIAA LLC or any
other person regarding the actual performance of the Properties compared to
the information contained in the Projections and each of them expressly
disclaims any representation or warranty, express or implied, as to the
accuracy or completeness of the Projections.
8.05 Tax Returns; Tax Matters Partner
(a) The Operating Member shall cause all LLC tax returns to
be timely filed with the applicable government authorities within allowable
time periods, including extensions, and shall use reasonable efforts to
provide such tax returns in a timely manner to the Members with the necessary
information, including Schedules K-1, with respect to the operations of the
LLC to allow them to file their own tax returns. The Operating Member shall
provide TIAA LLC with copies of the LLC's form K-1 at least 15 days prior to
the date such tax returns shall be filed.
(b) The Operating Member shall act as the "tax matters
partner" of the LLC as provided in Section 6231 of the Code and the
Regulations thereunder. Each Member hereby approves of such designation and
agrees to execute, certify, acknowledge, deliver, swear to, file, and record
at the appropriate public offices such documents as may be deemed necessary or
appropriate to evidence such approval. The tax matters partner shall take such
reasonable actions to insure that TIAA LLC will be a "notice partner", as such
term is defined under Section 6231 of the Code. Expenses incurred by the
Operating Member in acting in its capacity as "tax matters partner" shall be
deemed to be LLC Charges.
8.06 Partnership
The LLC shall be treated as a partnership for federal income
tax purposes and no Member shall make any election (for tax purposes or
otherwise) inconsistent with such treatment.
8.07 Management Agreement Records
The Operating Member shall use reasonable efforts to enforce
Managing Agent's obligations under the Management Agreement, and, without
limiting the foregoing, shall cause the Managing Agent to provide the Members
with copies of the reports required to be furnished by Managing Agent to Owner
under Paragraph III(D)(iii) of each Management Agreement as in effect on the
date hereof (or the comparable provisions of any future Management Agreement)
and, upon TIAA LLC's request, the LLC will (A) cause the Managing Agent to
provide to TIAA LLC copies of all bids in excess of $100,000 (as increased by
the CPI Increase) (or $50,000 (as increased by the CPI Increase) during any
Default Loan Period) and (B) cause a cost adjuster/contract auditor to be
engaged to review specific bid and vendor selection decisions.
ARTICLE IX
TRANSFERS OF INTERESTS; RIGHT OF FIRST REFUSAL; PLEDGES
9.01 Restrictions on Transfers and Pledges of LLC Interests
(a) The term "transfer" or "Transfer" when used in this
Agreement shall mean any sale, assignment, conveyance, gift or transfer.
(b) The term "pledge" or "Pledge" when used in this
Agreement shall mean any pledge, hypothecation, mortgage, or granting of a
security interest.
(c) The term "Interest Alteration" when used in this
Agreement shall mean a change in the Members' respective Interests, Percentage
Interests, Capital Accounts, rights to act as Operating Member (and the
decision-making authority appurtenant thereto) or any other rights,
obligations and responsibilities under this Agreement or with respect to the
Properties.
(d) The term "Upper Tier Transfer" means, with respect to
any Member, any transfer of ownership interests in an entity or issuance of
additional ownership interests, or any other transaction howsoever effected,
which results in a change in the ultimate beneficial ownership of such Member
by its Parent. The term Upper Tier Transfer does not include a transfer of
ownership interests in, or issuance of additional ownership interests in, or
any other transaction howsoever effected which results in a change in
ownership of the Parent of a Member, it being understood however, that a
Change in Control with respect to a Reckson Party may trigger the consequences
set forth in Section 9.06.
(e) The term "Transfer (or transfer) of an Interest" means
only a direct Transfer of an Interest and does not include an Upper Tier
Transfer.
(f) The term Parent, when used with respect to (I) Reckson,
means Reckson OP and (II) TIAA LLC, means Teachers; provided however, if as a
result of a Transfer or Upper Tier Transfer permitted under this Agreement,
Reckson ceases to be a Special Affiliate of Reckson OP or TIAA LLC shall cease
to be a Special Affiliate of Teachers, this paragraph (f) shall be amended to
identify the new parent of Reckson or TIAA LLC, as applicable, and references
to the Reckson Parties shall be deemed to refer to such new parent. This
paragraph (f) shall apply with respect to any subsequent Transfer or Upper
Tier Transfer.
(g) The term "Upper Tier Pledge" means with respect to any
Member, any pledge of all or any part of the ownership interests in a Member
(as opposed to a pledge of the Interest itself) or in any subsidiary of such
Member's Parent which directly, or through ownership of other Persons, owns an
interest in such Member.
(h) Except as permitted under this Article 9 and under
Article 10, neither Member may transfer or pledge all or any portion of its
Interest hereunder without the prior written consent of the other Member,
which consent may be withheld in such other Member's sole and absolute
discretion. Except as permitted under this Article 9 and Article 10, neither
Member may permit any Upper Tier Transfer or Upper Tier Pledge with respect to
it, without the prior written consent of the other Member, which consent may
be withheld in such other Member's sole and absolute discretion. Upon a
Member's transfer of its Interest to any person or entity ("Transferee") under
and in accordance with this Article 9, such Transferee shall be admitted as a
substitute Member in lieu of such Transferring Member.
9.02 Intentionally Omitted
9.03 Transfers and Pledges to Affiliates
(a) Notwithstanding Section 9.01, each Member may, without
the consent of the other Member, transfer or pledge all, but not part, of its
respective Interest in the LLC to an Affiliate of such Member and each Member
may permit Upper Tier Transfers and Upper Tier Pledges to Affiliates of such
Member; provided that following any such transfer, pledge, Upper Tier Transfer
or Upper Tier Pledge (or the foreclosure (or transfer in lieu of foreclosure)
of any pledge or Upper Tier Pledge), the new Member shall (x) with respect to
Reckson, be a Special Affiliate of Reckson OP and (y) with respect to TIAA
LLC, be a Special Affiliate of Teachers.
(b) Notwithstanding Section 9.01, Reckson shall be
permitted, without the consent of the other Member, to transfer all, but not a
part, of its Interest in the LLC or to effectuate Upper Tier Transfers with
respect to all, but not part, of the ownership interests in Reckson, to an
entity which is an Actively Managed Entity; provided that if at any time after
such transfer a majority of the Senior Management of Reckson at the time of
such transfer shall cease to be actively involved in the Actively Managed
Entity, then the Modified Buy-Sell Rights may be triggered by either party,
but there shall not otherwise be any Interest Alteration as a result thereof.
There shall be no restriction on transfers of Interests or Upper Tier
Transfers with respect to an Actively Managed Entity so long as it remains an
Actively Managed Entity.
(c) Any transfer or pledge or Upper Tier Transfer or Upper
Tier Pledge pursuant to this Section 9.03 shall not result in any Interest
Alteration.
9.04 Right of First Refusal
(a) From and after the date which is 180 days from the date
of this Agreement, (i) if TIAA LLC desires to transfer its Interest to a party
other than pursuant to Section 9.03 or (ii) if Reckson desires to transfer its
Interest other than pursuant to Section 9.03 to an Approved Entity, and in
either such case the Member which so desires to Transfer (the "Transferring
Member") shall obtain a bona fide third party offer to purchase the Interest
of the Transferring Member (the "Applicable Interest"), then the following
provisions shall apply:
(i) The Transferring Member shall give to the other
Member (the "Non-Transferring Member") a written notice (the "First Refusal
Notice") setting forth:
(A) the name, address and any other information
reasonably necessary to identify the proposed transferee; and
(B) the material business terms and conditions of
the proposed transfer including the price (the "Offering Price") at
which the Transferring Member proposes to transfer the Applicable
Interest. Such material business terms and conditions shall in all
events provide (i) that the Applicable Interest constitutes the
entire Interest of the Transferring Member in the LLC, and any
outstanding Default Loans held by the Transferring Member (but no
other assets), and (ii) the Offering Price will be payable entirely
in cash, in immediately available funds.
(ii) Within 45 days following the delivery of the
First Refusal Notice (the "Binding Commitment Period"), the Non-Transferring
Member may, by notice in writing to the Transferring Member (the "Binding
Commitment Notice") elect to make a binding commitment to purchase (at the
Offering Price specified in the First Refusal Notice or on any other terms
agreed to by the parties) the Applicable Interest.
(iii) Simultaneously with delivery of the Binding
Commitment Notice on or before the end of the Binding Commitment Period, the
Non-Transferring Member shall deliver to the New York office of one of the
five largest national title insurance companies in the United States which
shall be designated by the Transferring Member in the First Refusal Notice
(the "Escrow Agent"), a non-refundable amount (the "Deposit") equal to 10% of
the Offering Price which shall be held in escrow pursuant to an escrow
agreement in a form reasonably agreeable to the parties, and the
Non-Transferring Member shall be obligated to purchase the Applicable Interest
on the date (x) selected by the Non-Transferring Member on not less than 20
days written notice to the Transferring Member and (y) not more than 180 days
following the end of the Binding Commitment Period. The Binding Commitment
Notice shall be void ab initio if the Non-Transferring Member fails to deliver
the Deposit simultaneously with the delivery of the Binding Commitment Notice.
The date upon which the closing of the purchase of the Applicable Interest
shall occur shall be called the "ROFR Closing Date".
(b) On the ROFR Closing Date:
(i) the Transferring Member shall deliver to the
Non-Transferring Member a duly executed and acknowledged instrument of
assignment conveying the Applicable Interest to the Non-Transferring Member or
its designee(s) free and clear of all liens and encumbrances, except for such
liens and encumbrances as set forth in the First Refusal Notice which
assignment shall contain a surviving representation and warranty as to the
ownership of such Interest and the absence of such liens and encumbrances;
(ii) the Transferring Member shall (A) unless
otherwise provided in the First Refusal Notice, pay all transfer, stamp or
similar taxes due in connection with the conveyance of the Applicable Interest
and (B) pay any amounts due to the Non-Transferring Member or the LLC under
this Agreement;
(iii) the Non-Transferring Member shall pay the
Offering Price (as adjusted by the credits and apportionments herein set
forth) by wire transfer in immediately available funds;
(iv) if pursuant to the terms of the First Refusal
Notice, the proposed transferee was obligated to indemnify, assume or cause to
be released or satisfied any debts, obligations or claims against the LLC or
any Property Owner for which the Transferring Member or its Affiliate is or
may be personally liable (collectively, "Recourse Coverage"), the
Non-Transferring Member shall be obligated to provide the same Recourse
Coverage, and if pursuant to the First Refusal Notice the proposed transferee
would provide the Recourse Coverage by a creditworthy entity (i.e., an entity
having assets other than its interest in the LLC) the Non-Transferring Member
shall provide (or guaranty) such Recourse Coverage by an entity which has
assets other than in its interest in the LLC, and which, considering the
obligations involved, has creditworthiness which is either as creditworthy as
the entity to have been provided pursuant to the First Refusal Notice or, if
not, is, considering the obligations involved, reasonably satisfactory to the
Transferring Member;
(v) the LLC shall close its books as of the ROFR
Closing Date;
(vi) Net Ordinary Cash Flow and Net Extraordinary Cash
Flow to the ROFR Closing Date shall be distributed in accordance with the
provisions of Article VI unless the First Refusal Notice provides for no
apportionment or apportionment on a different basis in which event in lieu of
such distribution, apportionment shall be made in accordance with the First
Refusal Notice;
(vii) the Offering Price shall (A) except to the
extent otherwise provided in the First Refusal Notice, be increased by the
aggregate amount of all additional Capital Contributions made by the
Transferring Member on account of the Applicable Interest in the period
between the date of the First Refusal Notice and the ROFR Closing Date and (B)
be decreased by any Net Extraordinary Cash Flow distributed to the
Transferring Member on account of the Applicable Interest during such period,
except to the extent the First Refusal Notice provides that Net Extraordinary
Cash Flow (specified as to source and amount) would be retained by the
Transferring Member without reduction in the Offering Price, in which event no
such decrease shall be made on account of the specified Net Extraordinary Cash
Flow so distributed;
(viii) the Members shall execute all amendments to
fictitious name, membership or similar certificates necessary to reflect the
withdrawal of the Transferring Member from the LLC (if applicable), the
admission of any new Member to the LLC (if applicable), the termination of the
LLC, or as may otherwise be required by law or as is contemplated by Section
2.02; and
(ix) each Member shall be reasonable and shall
cooperate with the other Member and the transferee in consummating the
transaction contemplated by this Section 9.04(b), including, without
limitation, by executing such documents as may reasonably be required in
connection therewith.
(c) If the Non-Transferring Member fails timely to deliver a
Binding Commitment Notice to the Transferring Member, the Transferring Member
shall have the right, subject to this Section 9.04(c), to sell the Applicable
Interest to the proposed transferee specified in the First Refusal Notice,
provided that (i) the gross purchase price (without deduction for any
brokerage or similar fees payable in connection with such sale or any
apportionment in the nature of those described in Section 5.01(b)) is at a
price not less than 97.5% of the Offering Price, (ii) the other terms and
conditions of the sale, when taken as a whole, are not less favorable to the
Transferring Member than the terms and conditions set forth in the First
Refusal Notice, (iii) the closing of such sale shall occur not later than 150
days after expiration of the Binding Commitment Period, except as otherwise
provided in this Agreement and upon such Closing the proposed transferee shall
succeed to all the rights, obligations and responsibilities of the
Transferring Member without any Interest Alteration. The Non-Transferring
Member shall within 10 Business Days after request therefor from the
Transferring Member, execute and deliver such documentation as the
Transferring Member shall reasonably request evidencing the Non-Transferring
Member's declining (or deemed declining) of the right to purchase the
Applicable Interest, but the failure to do so shall in no way affect the
Transferring Member's right to sell the Applicable Interest as described
herein.
(d) If the Transferring Member does not close a sale of the
Applicable Interest which satisfies the requirements of Section 9.04(c) above
within the 150-day period described in Section 9.04(c), then the Transferring
Member may not sell the Applicable Interest without again giving notice to the
Non-Transferring Member pursuant to Section 9.04(a) above.
(e) If the Transferring Member or the Non-Transferring
Member shall fail to close the sale of an Applicable Interest contemplated by
this Section 9.04 after the Binding Commitment Notice has been given, then,
unless such failure would have been excused under the terms set forth in the
First Refusal Notice, the non-failing Member may, as its sole remedies (i)
seek specific performance of the failing Member's obligations or (ii) if the
failing Member shall be the Non-Transferring Member, the Transferring Member
may (x) retain the Deposit as liquidated damages; and (y) if such failure was
not due to a prohibition under applicable law which first arose after the
delivery of the Binding Commitment Notice, thereafter sell its Interest (one
time only) to any entity, whether or not an Approved Entity, without invoking
the right of first refusal described in this Section 9.04 and such buyer shall
succeed to all of the rights, obligations and responsibilities of the
Transferring Member under this Agreement without any Interest Alteration.
(f) No First Refusal Notice may be given with respect to a
transfer of any direct or indirect owner of an Interest as opposed to the
Interest itself. If a Member wishes to effectuate an Upper Tier Transfer not
permitted under Section 9.03 it must comply with the provisions of this
Section 9.04 with respect to its Interest (but not with respect to an upper
tier interest).
9.05 Buy-Sell of Properties
(a) Either Member may at any time tender to the other Member
a written offer (a "Property Offer Notice") in which the offering member (the
"Property Offering Member") requests that the LLC direct the sale of one or
more specified Properties owned by the Property Owners at the time of the
Property Offer Notice (each such Property, a "Sale Property" and collectively,
the "Sale Properties") to (i) the non-offering Member (the "Property Receiving
Member") or (ii) the Property Offering Member; provided, however that such
Property Offer Notice may only be given at any time after (x) the third (3rd)
anniversary of the date hereof with respect to 400 Garden City Plaza, 90
▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇; (y) the fourth (4th) anniversary of the date
hereof with respect to 275 Broadhollow and Stamford Towers; and (z) the fifth
(5th) anniversary of the date hereof with respect to 51 JFK and 1305 ▇▇▇▇
▇▇▇▇▇▇▇ (the time restrictions set forth in the foregoing clauses (x), (y) and
(z) shall be referred to collectively as the "Buy-Sell Lockouts" and
individually as a "Buy-Sell Lockout"). Notwithstanding the foregoing Buy-Sell
Lockouts, a Property Offer Notice may be sent at any time, but only with
respect to a sale of all of the Properties after the occurrence of an OM
Termination Event or as otherwise expressly stated in this Agreement.
(b) The Property Offer Notice shall stipulate a distinct and
separate value, in dollars, for each Sale Property, free and clear of all LLC
liabilities secured by or otherwise relating to such Sale Property (the "Sale
Price").
(c) Within a period (the "Property Commitment Period") of 45
days after receipt of the Property Offer Notice, the Property Receiving Member
shall deliver to the Property Offering Member, a notice (the "Binding Property
Notice") stating the Property Receiving Member's binding commitment (stated
separately with respect to each Sale Property) to either (i) direct the
applicable Property Owner(s) to sell the Sale Property to the Property
Offering Member for the Sale Price, or (ii) purchase such Sale Property for
the Sale Price. If the Property Offer Notice shall cover more than one Sale
Property, the Property Receiving Member shall have the right, in the Binding
Property Notice, to elect to purchase one or more of the Sale Properties
covered by the Property Offer Notice and direct a Property Owner to sell to a
Property Offering Member the Sale Property(ies) not elected to be purchased by
the Property Receiving Member. Within 10 days after receipt of the Binding
Property Notice, each Property Purchasing Party (as defined below) shall
deliver to the Escrow Agent a deposit in an amount equal to 10% of the Sale
Price for each Sale Property to be purchased by such Property Purchasing
Party, which amount shall be non-refundable (except in the event of the
selling Property Owner(s)' failure to convey title under this Section 9.05, in
which case such deposit shall be returned to the purchasing Member) and shall
be held in escrow pursuant to an escrow agreement reasonably agreeable to the
parties. The closing of the purchase of each Sale Property shall occur on a
date (xx) selected by the Property Purchasing Party for such Sale Property on
not less than 20 days prior written notice to the Property Selling Party (as
defined below) and (yy) no more than 120 days following the delivery of the
Binding Property Notice. If the Property Receiving Member fails to deliver a
Binding Property Notice on or before the close of the Property Commitment
Period, the Property Receiving Member shall be deemed to have elected to
direct the applicable Property Owner(s) to sell each Sale Property to the
Property Offering Member or its designee(s).
(d) For purposes of the remainder of this Section 9.05, (A)
the Member who shall purchase (or whose designee(s) shall purchase) a Sale
Property shall be called the "Property Purchasing Party", (B) the other Member
shall be called the "Property Selling Party" and (C) the date upon which the
Property Purchasing Party is obligated to close on the purchase of a Sale
Property shall be called the "Sale Closing Date".
On the Sale Closing Date:
(i) the Property Purchasing Party shall take title to
each Sale Property in its "as is" physical condition;
(ii) the Property Purchasing Party shall deliver to
the selling Property Owner the Sale Price (less the deposit) set forth in the
Property Offer Notice by wire transfer in immediately available funds and the
deposit, together with all interest accrued thereon, shall be transferred from
the Escrow Agent to the selling Property Owner (which aggregate amount shall
be distributed to the Members in accordance with Section 6.05(c) of this
Agreement);
(iii) the Property Selling Party shall cause the
selling Property Owner to pay all transfer, stamp or similar taxes due in
connection with the conveyance of each Sale Property;
(iv) the Property Selling Party shall cause the
selling Property Owner to deliver to the Property Purchasing Party or its
designee a duly executed and acknowledged bargain and sale deed without
covenants or the equivalent form of deed for the particular state in which the
Sale Property is located, or assignment instrument with respect to 90 ▇▇▇▇▇▇▇
conveying the applicable Sale Property to the Property Purchasing Party or its
designee(s), subject to all liens, encumbrances and other matters affecting
title thereto (other than LLC liabilities secured by, or otherwise relating
to, the applicable Sale Property) which conveyance shall be without any
representation, warranty or recourse against the selling Property Owner or the
LLC;
(v) all items of revenue and expense of the applicable
Property Owner which are customarily apportioned in the sale of properties
comparable to such Sale Property shall be apportioned between the selling
Property Owner and the Property Purchasing Party for the current calendar
period as of 11:59 p.m. on the day preceding the Sale Closing Date in
accordance with the customs and practices usual in transactions involving
properties comparable to the Sale Properties; and
(vi) the selling Property Owner and the Property
Purchasing Party shall deliver such additional instruments (without
representation or warranty by the Property Selling Party) which are
customarily delivered by buyers or sellers of properties comparable to the
Properties.
(e) If the selling Property Owner or the Property Purchasing
Party shall fail to close the sale of any Sale Property contemplated by this
Section 9.05 on or before the Sale Closing Date, then the non-failing party
may (i) require the failing party to specifically perform its obligation, (ii)
if the failing party is the Property Purchasing Party, the Property Selling
Party shall direct the selling Property Owner to retain the deposit as
liquidated damages or (iii) if the failing party is the Operating Member, the
provisions of Section 7.02(c) shall apply.
(f) If any Property Owner has entered into a contract to
sell a Property in accordance with the terms hereof, no Member shall have the
right to designate such Property as a Sale Property unless and until such
contract terminates without a closing occurring thereunder.
9.06 Special Transfer Provisions Applicable to Reckson
(a) Change in Control of Reckson Associates. The following
shall apply with respect to a Change in Control of a Reckson Party:
(i) Approved Entity/Actively Managed Entity Transfer.
If, after giving effect to a Change in Control of a Reckson Party, such
Reckson Party is an Approved Entity or an Actively Managed Entity, then such
Change in Control may be consummated without any rights on the part of TIAA
LLC and without any Interest Alteration.
An "Actively Managed Entity" shall mean an entity in
which the Senior Management of Reckson Associates remains actively involved in
the management of the LLC and the Properties, including without limitation,
development of the Business Plan, and does not merely act as a fee manager.
An "Approved Entity" is each entity listed on Schedule
4 attached hereto and a Majority-Owned Affiliate thereof (the "Approved Entity
List"), as the same may be modified in accordance with the following:
At any time and from time to time Reckson may propose
additional entities to add to the Approved Entity List (each, a "Proposed
Addition") by giving written notice of such Proposed Addition to TIAA LLC.
TIAA LLC shall have 10 Business Days from receipt of notice of a Proposed
Addition to approve or reject the Proposed Addition, and TIAA LLC's failure to
reject a Proposed Addition within such 10 Business-Day period shall be deemed
an approval of such Proposed Addition. TIAA LLC may reject a Proposed Addition
only if (x) TIAA LLC acting reasonably and in good faith can cite to specific
events, instances, financial circumstances or reputational information that
would deter a prudent investor from becoming a party to this Agreement with
the Proposed Addition or determines that such Proposed Addition would create a
Material Business Conflict, or (y) TIAA LLC or any of its Majority-Owned
Affiliates acting reasonably and in good faith rejects such Proposed Addition
because it is then actively involved (i.e., a plaintiff or a defendant) in or
has previously been actively involved in a material lawsuit with the Proposed
Addition. TIAA LLC acting reasonably and in good faith may, upon written
notice to Reckson, require the removal of any entity on the Approved Entity
List if and only to the extent that TIAA LLC (1) possesses evidence that the
financial condition of such Approved Entity has materially adversely changed
since the date such entity was placed on the Approved Entity List due to a
specific event or series of events or (2) in good faith can cite to specific
events, instances, financial circumstances or reputational information
demonstrating that there has occurred a material adverse change with respect
to such entity which would deter a prudent investor from becoming a party to
this Agreement with such Approved Entity or (3) TIAA LLC or any of its
Majority-Owned Affiliates is then actively involved in a material lawsuit with
such entity. Notwithstanding the foregoing, in no event may TIAA LLC require
the removal of any entity from the Approved Entity List after it has been
notified by Reckson that the Reckson Party has either entered into an
agreement with such entity which might result in a Change in Control of such
Reckson Party or is having substantive discussions with such entity which may
lead to such agreement. Any dispute between the Members regarding the addition
or removal of an entity from or to the Approved Entity List shall be resolved
by arbitration in accordance with Section 13.30.
(ii) Non-Approved Entity Change in Control.
(A) If a Change in Control of a Reckson Party is proposed (a
"Proposed Non-Approved Entity Change in Control") which, after giving effect
to such Change in Control, would result in the applicable Reckson Party (or
the successor entity owning the Interest or the interests in Reckson) being
neither an Approved Entity nor an Actively Managed Entity (each a
"Non-Approved Entity") and such Change in Control is not an Involuntary Change
In Control (as defined below), Reckson shall notify TIAA LLC of the proposed
Change in Control and the identity of the proposed transferee (the "Change in
Control Notice"). A Change in Control Notice shall state that such notice is a
request for TIAA LLC's approval that (I) such Proposed Non-Approved Entity
Change in Control does not create a TIAA LLC Conflict and (II) if no TIAA LLC
Conflict is triggered, such proposed Non-Approved Entity may be added to the
Approved Entity List. Not more than 21 days from receipt of such Change in
Control Notice, TIAA LLC shall advise Reckson by written notice (the "Conflict
Notice") if the Proposed Non-Approved Entity Change in Control creates a TIAA
LLC Conflict (as defined below), in which case the provisions of this
9.06(a)(ii)(A) shall apply, or, if TIAA LLC reasonably determines that the
Proposed Non-Approved Entity does not create a TIAA LLC Conflict, but
nevertheless believes that such entity should not be added to the Approved
Entity List (a "TIAA Determined Non-Approved Entity"), the provisions of
Section 9.06(a)(ii)(B) shall apply. If TIAA LLC does not send the Conflict
Notice within 21 days following receipt of the Change in Control Notice, the
Proposed Non-Approved Entity Change in Control shall, subject to the other
terms and conditions hereof, be deemed approved by TIAA LLC with the same
force and effect as if the other party thereto were an Approved Entity and
TIAA LLC shall be deemed to have waived its Put Sale rights. A "TIAA LLC
Conflict" shall mean a Material Business Conflict or an ERISA Problem. An
"ERISA Problem" shall occur if the applicable Change in Control would, in the
opinion of outside counsel to TIAA LLC (which outside counsel shall be
Debevoise & ▇▇▇▇▇▇▇▇ (or another firm reasonably acceptable to Reckson)), (i)
cause the LLC to be deemed to hold "plan assets" within the meaning of ERISA
or (ii) be reasonably likely to result in TIAA LLC (or Teachers) becoming
party to a "prohibited transaction" under ERISA; provided, that no ERISA
Problem shall exist for so long as the LLC is qualified as a Real Estate
Operating Company ("REOC") and if because of such qualification (or otherwise)
the LLC is entitled to the same legal protection in all material respects as
it is entitled under current law. The Members agree to use commercially
reasonable efforts to cause the LLC to be and remain qualified as a REOC so
long as the requirements therefor remain substantially the same as they are on
the date of this Agreement.
If TIAA LLC furnishes to Reckson a Conflict Notice stating
that the Proposed Non-Approved Entity Change in Control creates a TIAA LLC
Conflict, and Reckson does not dispute such determination as provided below,
Reckson shall have 10 Business Days from receipt of such Conflict Notice to
elect (without prejudice to its rights under Section 9.06(a)(ii)(B) below) by
notice to TIAA LLC to (1) abandon the Proposed Non-Approved Entity Change of
Control, in which event there shall be no Interest Alteration or (2) proceed
with the Proposed Non-Approved Entity Change in Control, in which event TIAA
LLC may elect, by notice to Reckson (the "Put Election Notice") within 10
Business Days from receipt of the Reckson Election Notice, to sell its
Interest in the LLC to Reckson or its designee (the "Put Sale") at a price
(the "Put Sale Price") which is the greater of (x) the "Adjusted Portfolio
Valuation" (which shall mean an amount calculated by multiplying TIAA LLC's
then current Percentage Interest by the aggregate of the Allocated Values of
the Properties then owned by the Property Owners and subtracting any Net
Extraordinary Cash Flow distributed to TIAA LLC with respect to such
Properties as of such date) and (y) TIAA LLC's then Percentage Interest in the
appraised fair market value of the Properties as determined below (the
"Properties Appraised Market Value").
If Reckson shall dispute TIAA's determination that the
proposed entity created a TIAA LLC Conflict, such dispute shall be resolved by
arbitration in accordance with Section 13.30.
If a Change in Control of a Reckson Party with a
Non-Approved Entity shall have occurred which did not result from a merger,
sale of assets or other transaction entered into voluntarily by the Reckson
Party (an "Involuntary Change in Control"), promptly following Reckson's
receipt of notification that such Involuntary Change in Control occurred,
Reckson shall furnish to TIAA LLC a Change in Control Notice and the
provisions set forth above in this paragraph (A) shall apply.
The Properties Appraised Market Value shall be determined in
accordance with Section 13.30 of this Agreement, except that the arbitration
procedure shall be modified as follows: within 30 days following receipt of
the Put Election Notice, each of Reckson and TIAA LLC shall prepare a
calculation of the Properties Appraised Market Value and submit such
calculation to the arbitrator, who, solely for purposes of this Section
9.06(a)(ii), shall be an MAI-designated appraiser having at least 10 years
experience in appraising Class A Office buildings in the New York Metropolitan
area (the "Appraiser"). TIAA LLC and Reckson shall appoint the Appraiser
within 30 days of receipt of the Put Election Notice (or, if TIAA LLC and
Reckson are unable to agree upon an Appraiser within said 30-day period), then
the selection of the Appraiser shall be governed by the selection process set
forth in Section 13.30. Each of Reckson and TIAA LLC shall submit to the
Appraiser its calculation of the Properties Appraised Market Value. Within 20
days after receipt of such submissions, the Appraiser shall make a
determination of the Properties Appraised Market Value, which determination
shall be limited to selecting as the Properties Appraised Market Value either
Reckson's or TIAA LLC's calculation.
The Put Sale shall close on or prior to the date (the "Put
Closing Date") that is (x) 30 days following TIAA LLC's delivery of the Put
Election Notice, with respect to an Involuntary Change In Control and (y) in
all other cases, simultaneously with the closing of the Proposed Non-Approved
Entity Change in Control (or on such date as otherwise agreed to in writing by
the parties). On the Put Closing Date:
(I) TIAA LLC shall deliver to Reckson (or its
designee) a duly executed and acknowledged instrument of assignment conveying
its Interest to Reckson or its designee(s) free and clear of all liens and
encumbrances, which assignment shall contain a surviving representation and
warranty as to ownership of such interest and the absence of such liens and
encumbrances;
(II) TIAA LLC shall (A) unless otherwise agreed to by
the parties, pay any transfer, stamp or similar taxes due in connection with
the conveyance of its Interest, to the extent attributable to any portion of
the Put Sale Price which is in excess of the Adjusted Portfolio Valuation and
(B) pay any amounts due to Reckson or the LLC under this Agreement;
(III) Reckson (or its designee) shall (A) unless
otherwise agreed to by the parties pay any transfer, stamp or similar taxes
due in connection with the transfer of TIAA LLC's Interest to the extent
attributable to any portion of the Put Sale Price which is equal to the
Adjusted Portfolio Valuation and (B) pay the Put Sale Price (as adjusted by
the credits and apportionments herein set forth) by wire transfer in
immediately available funds;
(IV) Net Ordinary Cash Flow and Net Extraordinary Cash
Flow to the Put Closing Date shall be distributed in accordance with the
provisions of Article VI unless the parties agree to apportionment on a
different basis;
(V) the Put Sale Price shall (A) be increased by the
aggregate amount of all additional Capital Contributions made by TIAA LLC in
the period between the date of the Put Election Notice and the Put Closing
Date and (B) be decreased by any Net Extraordinary Cash Flow distributed to
TIAA LLC during the period; and
(VI) the Members shall execute all amendments to
fictitious name, membership or similar certificates necessary to reflect the
withdrawal of TIAA LLC from the LLC (if applicable), the admission of any new
Member to the LLC (if applicable), the termination of the LLC, or as may
otherwise be required by law or as is contemplated by Section 2.02.
If there is an Involuntary Change in Control and a dispute
arises as to the amount of the Put Sale Price, the Put Sale shall close in all
respects on the scheduled Put Closing Date except that the Put Sale Price
dispute shall be resolved by arbitration in accordance with Section 13.30. On
the scheduled Put Closing Date Reckson shall (I) pay to TIAA LLC the amount
(the "Reckson Amount") set forth in Reckson's calculation of Properties
Appraised Market Value (or, if applicable, the Adjusted Portfolio Valuation)
that was submitted to the Appraiser and (II) place in an escrow account an
amount (the "Disputed Amount") equal to the difference between TIAA LLC's
calculation of Properties Appraised Market Value (or, if applicable, the
Adjusted Portfolio Valuation) that was submitted to the Appraiser and the
Reckson Amount. At Reckson's election, Reckson may deliver to TIAA LLC a
letter of credit in the Disputed Amount. The escrow account shall be held by a
party mutually agreeable to the parties and the distribution of the Disputed
Amount shall be governed by an escrow agreement mutually agreeable to the
parties acting reasonably. The Disputed Amount (if the same shall not be in
the form of a letter of credit) shall be placed in an interest bearing
account. Upon the arbitrator's final determination of the Put Sale Price, the
Disputed Amount (plus all accrued interest (if applicable)) shall be delivered
to the party whose calculation was selected by the arbitrator.
(B) If a Proposed Non-Approved Entity Change in Control does
not (or is deemed not to) cause a TIAA LLC Conflict, but TIAA LLC notifies
Reckson in the Conflict Notice that the proposed entity is a TIAA-Determined
Non-Approved Entity, then, Reckson shall have 10 Business Days from receipt of
any such notice (but without prejudice to its rights below) to elect by
written notice to TIAA LLC to (I) if the Change in Control is not an
Involuntary Change in Control, abandon the proposed Non-Approved Entity Change
of Control, in which event there will be no Interest Alteration or (II)
proceed with the Proposed Non-Approved Entity Change of Control in which case
(and in the case of an Involuntary Change of Control to an entity which is a
Non-Approved Entity), following the consummation of the Change in Control, the
provisions of Section 7.02(c) shall apply and, subject to the further
provisions of this Section 9.06(a)(ii)(B), the Buy-Sell Rights set forth in
Section 9.05 may be exercised (x) despite any Buy-Sell Lockouts and (y) only
with respect to all of the Properties (such modified Buy-Sell Rights shall be
referred to as the "Modified Buy-Sell Rights").
If Reckson shall dispute TIAA LLC's determination of a
proposed entity as a TIAA-Determined Non-Approved Entity, such dispute shall
be resolved by arbitration in accordance with the terms of Section 13.30. If
the arbitrator finds that TIAA LLC properly determined that such entity was a
Non-Approved Entity, then, following such arbitrator's determination, either
party may exercise the Modified Buy-Sell Rights and if the Modified Buy-Sell
Rights are exercised by either party within 120 days following the
arbitrator's determination and if TIAA LLC shall be the party purchasing any
Sale Properties under Section 9.05, TIAA LLC shall pay, subject to the last
sentence of this paragraph, an amount equal to 97% of the amount that would
otherwise be payable by TIAA LLC under Section 9.05(c) and if Reckson shall be
the party purchasing any Sale Properties under Section 9.05 Reckson shall pay,
subject to the last sentence of this paragraph, 103% of the amount that would
otherwise be payable by Reckson under Section 9.05(c). If, however, the
arbitrator determines that TIAA LLC improperly determined that the proposed
entity was a Non-Approved Entity, then TIAA LLC may, for a period ending on
the date that is 120 days following the closing of the applicable Proposed
Non-Approved Entity Change of Control, exercise the Modified Buy-Sell Rights
and (x) if TIAA LLC shall be the party purchasing any Sale Properties, TIAA
LLC shall pay, subject to the last sentence of this paragraph, an amount equal
to 103% of the amount that would otherwise be payable by TIAA LLC under
Section 9.05(c) and (y) if Reckson shall be the party purchasing any Sale
Properties, Reckson shall pay, subject to the last sentence of this paragraph,
an amount equal to 97% of the amount that Reckson would otherwise have paid
under Section 9.05(c). Solely for the purposes of calculating any premium or
discount contemplated by this paragraph, the amount payable by Reckson or TIAA
LLC shall be calculated by (a) subtracting from the amount payable by the
Property Purchasing Party under Section 9.05, the amount that would be
distributed by the LLC under Section 6.05(c) in connection with such
transaction to the Member which is (or which designated) the Property
Purchasing Member and (b) then applying the discount or premium to such
remaining amount.
Notwithstanding anything to the contrary contained
herein (and regardless of any notices or elections made by the Members) if
Reckson shall notify TIAA LLC that a proposed Change in Control with respect
to a Reckson Party has been withdrawn, abandoned or terminated prior to the
consummation thereof, then (i) any Put Election Notice given by TIAA LLC or
any Modified Buy-Sell Rights invoked by either Member shall be deemed void,
(ii) there shall be no Interest Alteration and (iii) the rights and the
obligations of the parties shall be returned as if there had been no such
proposed Change in Control.
(b) Other Transfers by Reckson.
(i) If Reckson proposes to transfer its Interest to a
Non-Approved Entity other than in connection with a Change in Control with
respect to a Reckson Party (a "Proposed Non-Approved Entity Transfer"),
Reckson shall give written notice to TIAA LLC identifying the proposed
transferee (the "Transfer Notice") which shall be deemed to be a request to
add the proposed transferee to the Approved Entity List. TIAA LLC shall advise
Reckson by written notice within 21 days after receipt of the Transfer Notice
(the "Conflict Notice") if the Proposed Non-Approved Entity Transfer creates a
TIAA LLC Conflict and whether such entity will be added to the Approved Entity
List. If TIAA LLC does not send the Conflict Notice within such 21-day period,
the Proposed Non-Approved Entity Transfer shall be deemed approved by TIAA
LLC. If the Conflict Notice is timely delivered and properly identifies a TIAA
LLC Conflict, then Reckson shall have 10 Business Days from receipt of the
Conflict Notice to elect by notice to TIAA LLC to (A) proceed with the
Proposed Non-Approved Entity Transfer, in which event either party shall be
entitled to invoke the Modified Buy-Sell Rights so long as the Sale Closing
Date occurs on or prior to the closing of the Proposed Non-Approved Entity
Transfer or (B) abandon the Proposed Non-Approved Entity Transfer, in which
event there shall be no Interest Alteration. If the Conflict Notice is timely
delivered and provides that such entity will not be added to the Approved
Entity List, the provisions of Section 9.06(b)(ii) shall apply. Any dispute as
to whether a TIAA LLC Conflict occurred under this Section 9.06(b)(i) or
whether TIAA LLC properly refused to add the proposed transferee to the
Approved Entity List shall be resolved by arbitration in accordance with
Section 13.30.
(ii) If Reckson proposes to transfer its Interest to a
Non-Approved Entity in a transfer other than a Change in Control with respect
to a Reckson Party which does not cause (or is deemed not to cause) a TIAA LLC
Conflict or which causes a TIAA LLC Conflict but was approved by TIAA LLC and
the transfer closes, then (A) the provisions of Section 7.02(c) shall apply
and (B) either party may, at any time thereafter, invoke the Modified Buy-Sell
Rights.
9.07 Conditions Applicable to All Transfers
(a) (i) Notwithstanding anything to the contrary contained
in this Agreement, any transfer, of any Interest by a Member or any Upper Tier
Transfer with respect to a Member shall be made in full compliance with (A)
all applicable statutes, laws, ordinances, rules and regulations of all
federal, state and local governmental bodies, agencies and subdivisions having
jurisdiction over the LLC or any Property Owners or the Properties and (B) the
mortgages, loan agreements, and other material agreements binding upon the LLC
and any affected Property Owner at the time of such transfer. In the event
that any filing, application, approval or consent is required in connection
with any such transfer, the "Responsible Member" (as hereinafter defined)
shall promptly make such filing or application or obtain such approval or
consent, at its sole expense, and shall reimburse the other Member for any
costs or expenses (including attorneys' fees) incurred by such Member in
connection with any filing, application, approval or consent.
(ii) The "Responsible Member" shall be transferring
Member. In the event the Responsible Member shall fail to comply with its
obligations as such, the other Member, upon 10 Business Days prior written
notice to the Responsible Member, may do so at the sole cost and expense of
the Responsible Member and adjourn the closing for such periods of time as are
necessary, and all amounts so incurred by the other Member, including
accounting, attorneys and other professional fees, shall be payable by the
Responsible Member upon demand.
(b) Notwithstanding anything to the contrary contained in
this Agreement, no transfer of the Interest of any Member shall be binding
upon the other Member unless (i) registration is not required under the
Securities Act of 1933, as amended, in respect of such transfer, (ii) such
transfer does not violate any applicable federal or state securities, real
estate syndication, or comparable laws, (iii) such transfer will not be
subject to, or such transfer, when aggregated with prior transfers in
accordance with applicable law, will not result in the imposition of, any
state, city or local transfer taxes to the LLC, the Property Owners or the
non-transferring Member (except to the extent it is specifically provided
herein that the non-transferring Member is obligated to pay all or a portion
of such taxes), unless the transferring Member agrees to pay such transfer tax
and to indemnify the non-transferring Member, (iv) the transfer does not
create any risk that the LLC will be treated as a publicly-traded partnership
within the meaning of Section 7704 of the Code and the Treasury Regulations
promulgated thereunder, (v) true copies of the instruments of transfer
executed and delivered pursuant to or in connection with such transfer shall
have been delivered to such other Member, (vi) in the case of a transfer of a
direct Interest the transferee shall have delivered to such other Member an
executed and acknowledged assumption agreement pursuant to which the
transferee assumes all the obligations of the transferor from and after the
date of such transfer under, and agrees to be bound by all the provisions of,
this Agreement (or, in the case where the transferee is an Affiliate of the
transferor, from and after the date of this Agreement), subject to the
limitations of liabilities set forth herein and (vii) the transferee shall
have executed, acknowledged and delivered any instruments required under the
LLC Act to effect such transfer and its admission to the LLC. The transferee
may also be required to make certain representations, warranties and covenants
to evidence compliance with U.S. federal and state securities laws, including,
but not limited to, representations as to its net worth, sophistication and
investment intent. Notwithstanding anything in this Agreement to the contrary,
in no event shall an Interest be transferred to a Person who is the subject of
any pending bankruptcy proceedings, or to a Person who is a minor or who
otherwise lacks legal capacity, and any attempt to effect a transfer to such a
Person shall be void and of no effect and shall not bind the LLC.
(c) At the election of the purchasing Member (or if
requested by any other Member remaining in the LLC), any change of ownership
of the Interest of any Member will, if practically and commercially feasible,
be structured to avoid a termination of the LLC for federal income tax
purposes so long as the selling Member is not obligated to increase its costs
and/or liability, unless the purchasing Member(s) provides a reasonably
acceptable indemnity to the selling Member.
(d) The transferring Member shall remain primarily liable
for all accrued obligations (as of the date of transfer) of the transferring
Member under this Agreement, notwithstanding any transfer pursuant to this
Article 9 or Article 10, unless the transferee agrees to assume in writing all
accrued obligations of the transferring member, in which event the
transferring Member shall have no further obligation after a transfer. In
connection with any transfer permitted under this Article 9 or under Article
10, each Member hereby consents to the withdrawal of the transferring Member
as a Member and the admission of the transferee as a Member with the rights of
the transferring Member hereunder.
(e) The LLC, each Member and any other Person or Persons
having business with the LLC, need deal only with Members who are admitted as
Members or as substituted Members of the LLC, and they shall not be required
to deal with any other Person by reason of transfer by a Member or by reason
of the death of a Member, except as otherwise provided in this Agreement. In
the absence of the substitution (as provided herein) of a Member for a
transferring or a deceased Member, any payment to a Member or to a Member's
executors or administrators shall acquit the LLC and the Members of all
liability to any other Persons who may be interested in such payment by reason
of an assignment by, or the death of, such Member.
9.08 Admission of Transferee
Any person or entity who becomes a Member, accepts, ratifies
and agrees to be bound by all actions duly taken pursuant to the terms and
provisions of this Agreement by the LLC prior to the date of its membership in
the LLC and, without limiting the generality of the foregoing, specifically
ratifies and approves all agreements and other instruments as may have been
properly executed and delivered on behalf of the LLC or any Property Owner in
accordance with this Agreement prior to said date and which are in force and
effect on said date. Unless and until a transferee is admitted as a
substituted Member, the transferee shall be entitled only to allocations and
distributions with respect to such Interest in accordance with this Agreement,
and shall have no right to any information or accounting of the affairs of the
LLC, shall not be entitled to inspect the books or records of the LLC, and
shall not have no right to exercise any of the powers, rights, and privileges
of a Member hereunder.
9.09 Pledge of Interest
(a) Either Member (a "Member Debtor") may, provided same is
permitted under the terms of any then existing loan documents binding upon the
LLC or any Property Owner, Pledge all (but not part) of its Interest to an
Approved Pledgee to secure a debt or obligation of such Member Debtor or of an
Affiliate of such Member Debtor, to such Approved Pledgee, pursuant to an
agreement which is expressly subject to the provisions of this Section 9.09;
and such pledged Interest may be transferred by foreclosure, assignment in
lieu thereof or other enforcement of such a pledge; provided and upon the
condition that (i) the Person (the "Purchaser", who may be the Approved
Pledgee) who purchases or otherwise acquires the pledged Interest does so
subject to all of the terms and conditions of this Agreement as it may have
been modified or amended, (ii) the Purchaser, for its acquisition of a pledged
Interest to be effective, shall comply with the provisions of Section 9.07 and
9.08 but not 9.04 and (iii) in the case of Reckson's pledged Interest which is
being foreclosed upon, assigned in lieu thereof or otherwise transferred in
enforcement of such Pledge if the Purchaser is a Non-Approved Entity, then
TIAA LLC may upon foreclosure or transfer to the Purchaser (A) immediately
exercise the Modified Buy-Sell Rights and (B) the provisions of Section
7.02(c) shall apply. Subject to the immediately preceding sentence, the
Members hereby consent to any transfer resulting from the foreclosure of a
Pledge permitted under this Section 9.09, or an assignment in lieu thereof, or
other such enforcement of such a Pledge, the withdrawal of a Member Debtor if
its entire Interest was so transferred, and the admission of the Purchaser as
a substitute Member, as the case may be, with all of the rights of the Member
Debtor hereunder including, without limitation, its rights with respect to
management and distributions. No such pledge, foreclosure or other enforcement
shall require the Approved Pledgee or its Affiliate to assume the obligations
of a Member Debtor hereunder unless and until such Approved Pledgee or its
Affiliate acquires the pledged Interest of such Member Debtor.
(b) If an Approved Pledgee of a Member Debtor's Interest
shall have given the other Member a written notice specifying such Approved
Pledgee's name and address, then, whenever the other Member shall thereafter
give notice to such Member Debtor of a default by the Member Debtor under this
Agreement, the other Member shall also give such Approved Pledgee at such
address a copy of each notice given by the other Member to the Member Debtor
in the same manner and at the same time as any such notice is given to the
Member Debtor. No such notice by the other Member shall be deemed to have been
given to the Member Debtor unless and until a copy thereof shall have been so
given to the Approved Pledgee. The other Member will accept performance by any
such Approved Pledgee of any covenant or obligation on the Member Debtor's
part to be performed hereunder, with the same force and effect as though
performed by the Member Debtor and the Approved Pledgee shall be entitled to
the same notice and grace periods as the Member Debtor hereunder. In the event
that an OM Termination Event under Section 7.02(c) occurs and the Approved
Pledgee subsequently (whether before or after any foreclosure or
transfer-in-lieu of foreclosure to the Approved Pledgee) cures the applicable
OM Termination Event, such event shall no longer be deemed to be an OM
Termination Event and (x) if there has been no transfer of Reckson's Interest
by foreclosure (or transfer in lieu thereof) Reckson's rights as Operating
Member shall be restored as if no OM Termination Event shall have occurred and
(y) if such a transfer has occurred and the transferee is an Approved Entity,
such transferee shall be entitled to act as Operating Member as if no OM
Termination Event occurred. For purposes of the preceding sentence, an OM
Termination Event which by its nature is not curable by an Approved Pledgee
(i.e. those described in clauses (ii), (iii), (vii), (viii) and (xi) of
Section 7.02(c), and clause (xii) of such Section insofar as it relates to the
Bankruptcy of the Manager) shall be deemed cured if, after giving effect to a
foreclosure or transfer in lieu thereof, the OM Termination Event no longer
exists (for example, with respect to clause (viii) the Approved Pledgee is not
bankrupt or with respect to clause (vii) the transferee is permitted under the
terms of this Agreement to hold the Interest it acquired). The Members shall
not terminate, or modify in any material respect, this Agreement without the
prior written consent of each Approved Pledgee, except to the extent required
hereunder.
(c) The Member which is not the Member Debtor shall not
unreasonably withhold its consent to the execution by the LLC of such
instruments as are reasonably required by an Approved Pledgee in order to
ensure the perfection of its security interest in the Member Debtor's
Interest.
(d) "Approved Pledgee" means (i) an Approved Entity; (ii) an
Institutional Lender to whom assets other than the pledged Interest are being
Pledged; (iii) a proposed pledgee to whom the other Member does not reasonably
object within 10 Business Days after written notification from the Member
Debtor identifying the proposed pledgee; (iv) a pledgee to secure any existing
or future line of credit of the Reckson Companies or (v) a pledgee required in
connection with a Change in Control under Section 9.06(a). Notwithstanding the
foregoing, if, at the time Reckson intends to grant a pledge, the proposed
pledgee is a person who if it became the Member would cause a TIAA LLC
Conflict, then TIAA LLC may disapprove of the proposed pledgee.
ARTICLE X
SALE AND FINANCING OF PROPERTIES
10.01 Sale of Properties to Third Parties
(a) Either Member (the "Property Recommending Member") may,
at any time after the expiration of the relevant Buy-Sell Lockout (or prior
thereto, Reckson) tender to the other Member (the "Non-Approving Member") a
written offer (a "Third Party Offer Notice") in which the Property
Recommending Member recommends that the LLC direct the sale of one or more
specified Properties owned by the Property Owners at the time of the Third
Party Offer Notice (each such Property, a "Third Party Sale Property" and
collectively, the "Third Party Sale Properties") to a third party. The Third
Party Offer Notice shall (i) provide a gross sales price for each of the Third
Party Sale Properties, free and clear of all liabilities secured by or
otherwise relating to such Third Party Sale Properties (the "Third Party Sale
Price") and (ii) provide the LLC Accountants' calculation of the amount that
would be distributed to each Member under Article VI (after paying all LLC
liabilities secured by or otherwise relating to such Third Party Sale
Properties (as determined by the LLC Accountants) as provided in such Article
if the Third Party Sale Properties were sold for cash in an amount equal to
the value set forth in the Third Party Property Offer Notice. The
Non-Approving Member shall have 45 days from receipt of the Third Party
Property Offer Notice to deliver to the Property Recommending Member a notice
(the "Binding Third Party Property Notice") stating its binding commitment to
either (x) approve the proposed sale of the Third Property Sale Properties
subject to the further provisions of this Section 10.01 and direct the
applicable Property Owner(s) to market the Third Party Sale Properties, in
which event the Property Recommending Member shall market the Third Party Sale
Properties on behalf of the applicable Property Owner for a period of up to
180 days (the "Marketing Period") or (y) purchase the Third Party Sale
Properties by delivering to the Escrow Agent a deposit in an amount equal to
10% of the price set forth in the Third Party Property Offer Notice, which
amount shall be non-refundable (except in the event of the Property
Recommending Member's failure to deliver title, in which case such deposit
shall be returned to the Non-Approving Member) and shall be held in escrow
pursuant to an escrow agreement reasonably satisfactory to each of the Members
and the Property Recommending Member shall be obligated to close on the
purchase of the Third Party Sale Properties on a date (x) selected by the
Non-Approving Member on not less than 20 days written notice to the Property
Recommending Member and (y) no more than 120 days following the delivery of
the Binding Third Party Property Notice. In the event that a third party bona
fide purchaser who is unaffiliated with the Property Recommending Member
enters into a binding contract to buy the Third Party Sale Properties, which
contract shall (A) provide for a minimum deposit of not less than 5% of the
Third Party Sale Price to be paid simultaneously with the execution of such
contract, (B) contain no financing contingencies and (C) be on otherwise
commercially reasonable terms during the Marketing Period at a gross purchase
price (without any deduction for any brokerage commissions or similar fees
payable in connection with such sale and without adjustment for apportionments
(a "Valid Third Party Contract") then the Property Recommending Member shall
deliver to the Non-Approving Member the proposed contract (which shall be in a
form that the Property Recommending Member is willing to execute) and if (A)
the proposed contract is a Valid Third Party Contract and (B) the price set
forth in the proposed contract is not less that 97.5% of the Third Party Sale
Price, then the Non-Approving Party shall be deemed to have approved the Valid
Third Party Contract. If, however, the Valid Third Party Contract is less than
97.5% of the Third Party Sale Price stated in the Third Party Offer Notice and
the Property Recommending Member is willing to sell at such lesser price (the
"Lesser Price Offer") then upon written notice by the Property Recommending
Member to the Non-Approving Member, (xx) the Non-Approving Member shall have
the right to purchase the Third Party Sale Properties pursuant to the terms of
the applicable Valid Third Party Contract at the Lesser Price Offer as if such
notice were a Third Party Sale Notice, except that the time to deliver a
Binding Third Party Property Notice shall be reduced to a 15-day period or
(yy) if the Non-Approving Member does not timely elect to so purchase the
Third Party Sale Properties then the Property Recommending Member may cause
the applicable Property Owner to sell the Third Party Sale Properties to such
bona fide third party for the Lesser Price Offer with the closing of such sale
to occur within 180 days. Any dispute as to whether a proposed contract is a
Valid Third Party Contract shall be resolved by arbitration in accordance with
Section 13.30.
(b) For purposes of the remainder of this Section 10.01, (i)
the Member who shall purchase (or whose designee(s) shall purchase) the Third
Party Sale Properties shall be called the "Third Party Property Purchasing
Party", (ii) the Property Owner which sells the Third Party Sale Properties to
the Third Party Property Purchasing Party shall be called the "Selling
Property Owner" and (iii) the date upon which the Third Party Property
Purchasing Party is obligated to close on the purchase of the Third Party Sale
Properties shall be called the "Sale Closing Date".
On the Sale Closing Date:
(A) unless otherwise provided in the Valid Third Party
Contract (if applicable), the Third Party Property Purchasing Party shall take
title to each Sale Property in its "as is" physical condition;
(B) the Third Party Property Purchasing Party shall
deliver to the Selling Property Owner the purchase price (less the deposit)
set forth in the Valid Third Party Contract by wire transfer in immediately
available funds and the deposit, together with all interest accrued thereon,
shall be transferred from the Escrow Agent to the Selling Property Owner;
(C) unless otherwise provided in the Valid Third Party
Contract (if applicable), the Selling Property Owner shall pay the transfer,
stamp or similar taxes due in connection with the conveyance of each Third
Party Sale Property;
(D) each Selling Property Owner shall deliver to the
Third Party Property Purchasing Party or its designee a duly executed and
acknowledged bargain and sale deed without covenant (or equivalent form for
the particular state in which the Third Party Sale Property is located) or
assignment instrument with respect to 90 ▇▇▇▇▇▇▇ conveying the applicable
Third Party Sale Property to the Third Party Property Purchasing Party or its
designee(s), subject to all liens, encumbrances and other matters affecting
title thereto other than LLC liabilities secured by, or otherwise relating to,
the Third Party Sale Property, which conveyance shall be without any
representation, warranty or recourse against the Selling Property Owner or the
LLC unless otherwise provided in the Valid Third Party Contract (if
applicable);
(E) unless otherwise provided in the Valid Third Party
Contract (if applicable), all items of revenue and expense of the Selling
Property Owner which are customarily apportioned in the sale of properties
comparable to such Third Party Sale Property shall be apportioned between the
Selling Property Owner and the Third Party Property Purchasing Party for the
current calendar period as of 11:59 p.m. on the day preceding the Sale Closing
Date in accordance with the customs and practices usual in transactions
involving properties comparable to the Third Party Sale Properties; and
(F) the Selling Property Owner and the Third Party
Property Purchasing Party shall deliver such additional instruments (without
representation or warranty by the Property Owner) which are customarily
delivered by buyers or sellers of properties comparable to the Properties
being sold.
(c) If the Selling Property Owner or the Property Purchasing
Party shall fail to close the sale of any Third Party Sale Property
contemplated by this Section 10.01, after the end of the commitment period
provided in the relevant sale contract, then, unless such terms would have
been excused under the terms set forth in the Valid Third Party Contract (if
applicable) the non-failing party may, as its sole remedies (i) seek specific
performance of the failing party's obligations or (ii) if the failing party is
the Third Party Property Purchasing Party, the Selling Property Owner may
retain the deposit as liquidated damages. In addition, if the failing party is
the Third Party Property Purchasing Party and if such failure was not due to a
prohibition under applicable law first arising after the date the Property
Purchasing Party elected to purchase, the Property Recommending Member may
thereafter sell the Third Property Sale Properties to any unrelated third
party pursuant to a Valid Third Party Contract without the Third Party
Property Purchasing Party having any rights to purchase such Properties under
this Section 10.01 or otherwise consent thereto.
(d) If any Property Owner has entered into a contract to
sell a Property, neither Member shall have the right to designate such
Property as a Third Party Sale Property unless and until such contract
terminates without a closing occurring thereunder.
10.02 Relationship of Certain Rights
If a Member has initiated the procedures under Section 9.04,
9.05 or 10.01 with respect to any or all of the Properties, no Member shall
initiate any procedure under any such Section until the proceeding first
initiated shall have been fully exercised, exhausted or extinguished, except
that if a Member has initiated the procedures under Section 9.05 or 10.01 with
respect to less than all of the Properties either Member may initiate the
procedures under Section 9.05 or 10.01 with respect to other Properties,
subject to the restrictions set forth in this Agreement.
10.03 Financing/Refinancing by Reckson
(a) Subject to the provisions of Section 10.03(b) and
10.03(g), at any time and from time to time during the term of this Agreement,
Reckson may elect to effectuate one or more borrowings or refinance any
existing borrowing at then current market rates and terms (each such financing
transaction, a "Loan") that satisfies each of the following requirements (the
"Loan Guidelines"):
(i) after giving effect to any Loan, the weighted
average interest rate on all Loans secured by any one Property shall not
exceed 9% taking into account (A) any Loans (or portions thereof) which bear a
fixed rate and (B) any Loans (or portion thereof) which, although bearing a
floating rate are subject to a "cap", "collar" or other hedge which has the
effect of limiting the interest rate (assuming the maximum rate after giving
effect to such cap, collar or other hedge). Any Loan which shall bear interest
at a floating rate shall be subject to a cap, collar or other hedge which has
the effect of limiting the interest rate;
(ii) after giving effect to any Loan, the aggregate
loan to value ratio with respect to the Property affected by such Loan shall
not exceed 65% based on the lender's appraisal of the fair market value of the
Property securing the Loan, or if there is no such lender's appraisal, on the
appraised fair market value of the Property secured by the Loan on a date
which is not more than 180 days prior to the Loan Closing Date based on an
appraisal prepared by an appraiser retained by the Operating Member and
reasonably approved by the other Member setting forth the appraiser's opinion
of the fair market value of said Property valued free and clear of other
indebtedness of the LLC;
(iii) the Loan shall be nonrecourse to the LLC, the
Property Owners and the Members, except it may be recourse to (or guaranteed
by) the LLC and the Property Owners and Reckson or its Affiliates with respect
to environmental issues, fraud, misapplication of funds or other standard
carve-outs which are then customary for non-recourse mortgage loans and the
Loan may be recourse to (or guaranteed by) the Property Owner of the Property
securing the Loan;
(iv) no Loan may be secured by more than one Property
(i.e. cross-collateralization is not permitted);
(v) participation or contingent payments based on
revenues, sales, proceeds from the Loan, appreciation in value or other items
shall not be permitted;
(vi) the amortization schedule for the Loan shall be
no less than 20 years; and
(vii) the Loan shall not have a term of more than 10
years; and
(viii) the Loan shall either (x) be prepayable at any
time without premium or penalty (other than customary breakage costs for
floating rate loans) or (y) permit transfers by Reckson of its Interest to
TIAA LLC without penalty or default.
(b) If Reckson desires to cause one or more Property Owners
to effectuate a borrowing in accordance with Section 10.03(a), Reckson shall
first send a notice to TIAA LLC describing the proposed Loan, including the
identity of the Property to be secured by each such Loan and a summary of the
proposed terms and conditions of the financing, which terms and conditions
must comply with the Loan Guidelines (the "Proposed Loan Notice"). Within 10
Business Days following delivery of the Proposed Loan Notice, TIAA LLC acting
reasonably and in good faith may by written notice object to the proposed Loan
but only on the basis that the proposed Loan either does not meet the Loan
Guidelines or that the proposed Loan is inappropriate for the Property. A
proposed Loan shall be deemed "inappropriate for the Property" only if the
Loan would either create undue risk of default (e.g. because of the leasing
profile of the Property) or harm Property operations (e.g. leave insufficient
cash flow (taking into anticipated reserves) to meet reasonably projected
capital needs). For the avoidance of doubt, the parties confirm that a Loan
will not be deemed "inappropriate for the Property" because it contains
features (such as restrictions on sale and/or prepayment penalties) which
would make it more difficult to sell the Property or an interest in the
Property Owner during the term of the Loan or because TIAA LLC would prefer
different financial terms (e.g. floating vs. fixed rate or vice versa or a
longer or shorter terms). If TIAA LLC objects to a proposed Loan it shall set
forth it reasons therefor in reasonable detail in its objection notice. The
failure of TIAA LLC to timely object to a Proposed Loan Notice shall be deemed
a waiver of its right to do so. Reckson may respond to any such objection
notice by (i) modifying the terms of the proposed Loan to satisfy the
objections of TIAA LLC or (ii) submitting to arbitration in accordance with
Section 13.30 as to whether TIAA LLC has properly objected to the Proposed
Loan Notice or (iii) elect not to proceed with the Loan. If (x) TIAA LLC is
determined in two (or more) separate arbitration proceedings to have not
properly objected to a Proposed Loan Notice, TIAA LLC shall forfeit the right
to object to future Proposed Loan Notices based on the Loan being
"inappropriate for the Property" for a 24-month period from the second of such
arbitrator's decisions and for a 24-month period from any succeeding
arbitrator's decision and (y) if TIAA LLC is determined in two (or more)
separate arbitration proceedings to have properly objected to a Proposed Loan
Notice, Reckson shall be prohibited from effectuating a Loan without TIAA
LLC's approval for a 12-month period from such second arbitrator's decision
and for a 12-month period from any succeeding arbitrator's decision.
(c) If TIAA LLC does not object (or is deemed to waive its
right to object) to a proposed Loan, then within 10 Business Days following
delivery of the Proposed Loan Notice (the "ROFO Period"), TIAA LLC may cause
Teachers to send to Reckson a binding loan commitment (the "Binding Loan
Commitment") in which Teachers offers to make the Loan upon terms and
conditions which in every material respect are the same or more favorable to
the Borrower than those stated in the Proposed Loan Notice; provided, however,
Reckson may reject any such Binding Loan Commitment if in its reasonable
judgment the making of the Loan by Teachers (or the terms thereof) is
reasonably likely to create any negative tax consequences for Reckson. If
Reckson elects to cause the applicable Property Owner to accept the Binding
Loan Commitment, the closing of the Loan shall occur on the date specified in
the Binding Loan Commitment.
(1) If TIAA LLC fails timely to deliver a Binding Loan
Commitment to Reckson, Reckson shall have the right, subject to satisfaction
of the Loan Guidelines and provided TIAA LLC has not properly objected (or has
been deemed to have waived its objection) as provided in paragraph (b) above,
to cause the applicable Property Owner to effectuate the borrowing
substantially in accordance with the Proposed Loan Notice, provided that the
closing of the Loan occurs within 180 days after the date of the failure to
deliver the Binding Loan Commitment.
(2) If Reckson does not cause the applicable Property
Owner to close the Loan, which satisfies the requirements of subparagraph (1)
above within the 180-day period described therein, then Reckson may not cause
such Property Owner to effectuate a Loan without again giving a Proposed Loan
Notice to TIAA LLC pursuant to this paragraph (c).
(3) If Teachers executes a Binding Loan Commitment
which is accepted by Reckson on behalf of a Property Owner and Teachers
thereafter wrongfully fails to close on the Loan contemplated thereby, TIAA
LLC shall thereafter have no further right to deliver a Binding Loan
Commitment to Reckson with respect to any proposed Loan. The foregoing shall
be in addition to any other rights and remedies available to Reckson, the LLC
or the applicable Property Owner with respect to such failure.
(d) If Reckson or any Affiliate elects to give an
environmental indemnity or guaranty recourse carve-outs to a lender in
connection with a Loan, the LLC and the Property Owners, subject to Section
13.05, shall indemnify, defend and hold harmless Reckson from and against all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, proceedings, costs, expenses and disbursements of any kind or nature
whatsoever (including, without limitation, all costs and expenses of defense,
appeal, and settlement of any and all suits, actions, or proceedings
threatened or instituted against the indemnified party and all costs of
investigations in connection therewith) which may be imposed on, incurred by,
or asserted against Reckson in any way relating to or arising out of such
indemnity or guaranty of recourse carve-outs.
(e) If in connection with this Section 10.03, Reckson or any
Affiliate (other than the LLC or any Property Owner) would or could
potentially become personally liable to a lender for any sum on account of the
LLC opposing in any manner whatsoever the foreclosure of a mortgage given by
any Property Owner to such lender or any other enforcement proceeding under
such mortgage or any other instrument entered into in connection therewith,
Reckson may cause the relevant Property Owner to elect not to oppose a
foreclosure or other enforcement proceeding by such lender.
(f) In connection with any Loan, (i) Reckson may execute and
deliver on behalf of the LLC and the Property Owners notes, mortgages,
security agreements, pledges of equity interest in the Property Owners,
assignment of rents and leases, environmental indemnities, non-recourse
carve-out guarantees and other customary loan documents, (ii) Reckson or its
Affiliate may (x) give any guaranty contemplated by 10.03(a)(iii) and (y)
guaranty any Loan if there is a default under such Loan or Reckson reasonably
believes a default is likely; provided that the LLC and the Property Owners
(other than the borrowing Property Owner) shall not indemnify Reckson with
respect to any such guaranty under this sub-clause (y) but the borrowing
Property Owner shall so indemnify Reckson, and TIAA LLC shall have the right,
but not the obligation, to issue a similar guaranty, and (iii) Reckson may
cause the LLC or any Property Owner to enter into any "bankruptcy remote"
covenants required by the lender under the Loan, including, without
limitation, requiring the Property Owner to comply with "single purpose
entity" covenants and the admission of unaffiliated third parties as
"independent managers" or "independent members" (with a nominal or
non-economic interest) with approval rights over bankruptcy filings and
certain other matters as is customarily required to comply with bankruptcy
remote requirements.
(g) If an OM Termination Event has occurred, Reckson must
obtain TIAA LLC's prior written consent to effectuate any Loan. TIAA agrees
not to unreasonably withhold such consent if the OM Termination Event is of
the type described in Section 7.02(c)(ii), (iii) or (iv). If, following an OM
Termination Event of the type described in Section 7.02(c) (ii), (iii) or
(iv), Reckson delivers a Proposed Loan Notice to TIAA LLC under Section
10.03(b) and TIAA LLC does not consent to the proposed Loan described in the
Proposed Loan Notice, if Reckson disputes the reasonableness of TIAA LLC's
refusal to consent, such dispute shall be resolved by arbitration in
accordance with Section 13.30. If the arbitration shall be resolved in favor
of Reckson, Reckson shall be permitted to effectuate the proposed Loan
notwithstanding any such OM Termination Event; provided that (i) either party
may exercise the Modified Buy Sell Rights and (ii) Reckson may not so
effectuate the Loan if, within 15 days following the determination of such
arbitration, TIAA LLC shall exercise such Modified Buy Sell Rights, in which
case Reckson may not enter into such Loan until the closing of the Buy-Sell
occurs under Section 9.05.
ARTICLE XI
DISSOLUTION AND LIQUIDATION
11.01 Events Causing Dissolution
The LLC shall be dissolved and its affairs wound up upon the
occurrence of any of the following:
(a) the Members consent in writing to such dissolution;
(b) the sale or other disposition (voluntarily or
involuntarily) by the LLC of all or substantially all of the LLC Assets and
the collection of all amounts derived from any such sale or other disposition,
including all amounts payable to the LLC under any promissory notes or other
evidences of indebtedness taken by the LLC (unless the Members shall elect to
distribute such indebtedness to the Members in liquidation), and the
satisfaction of contingent liabilities of the LLC in connection with such sale
or other disposition;
(c) the Termination Date;
(d) the occurrence of any event that, under the LLC Act,
would cause the dissolution of the LLC or that would make it unlawful for the
business of the LLC to be continued; or
(e) any Member becomes Bankrupt.
11.02 Right to Continue Business of the LLC
Upon an event described in Section 11.01(c), (d) or (e) (but
not an event described in Section 11.01(d) that makes it unlawful for the
business of the LLC to be continued), the LLC thereafter shall be dissolved
and liquidated unless, within 90 days after the event described in any of such
Sections, an election to continue the business of the LLC shall be made in
writing by the Members. If such an election to continue the LLC is made, then
the LLC shall continue until another event causing dissolution in accordance
with this Article XI shall occur.
11.03 Distributions Upon Dissolution
(a) Upon the dissolution of the LLC, the Operating Member
(or any other Person responsible for winding up the affairs of the LLC) shall
proceed without any unnecessary delay to sell or otherwise liquidate the LLC
Assets (including the assets of the Property Owners) and pay or make due
provision for the payment of all debts, liabilities and obligations of the LLC
and the Property Owners.
(b) Subject to Section 5.02(e), the net liquidation proceeds
and any other liquid assets of the LLC after the payment of all debts,
liabilities and obligations of the LLC and the Property Owners (including,
without limitation, all amounts owing to either Member under this Agreement or
under any agreement between a Property Owner and a Member entered into by the
Member other than in its capacity as a Member in the LLC), the payment of
expenses of liquidation of the LLC, and the establishment of a reasonable
reserve in an amount estimated by the Operating Member to be sufficient to pay
any amounts reasonably anticipated to be required to be paid by the LLC or a
Property Owner, shall be distributed to the Members pro rata, in accordance
with their respective Percentage Interests. In paying the debts, liabilities
and obligations of the LLC or any other Property Owner any available funds
shall be applied (to the extent practical and permitted by law), first, to
repay any indebtedness or liabilities of the LLC and the Property Owners for
which the Members (or any guarantor of the obligations of the LLC or a
Property Owner) shall have recourse liability, second, to repay any other
indebtedness or liabilities of the LLC or a Property Owner, and third to repay
any loans made to the LLC or a Property Owner by the Members (in proportion to
the amounts so loaned together with the accrued interest thereon).
(c) Each of the Members shall be furnished with a statement
prepared by, or under the supervision of, the LLC Accountants, the Operating
Member and any other person or entity responsible for winding up the affairs
of the LLC which shall set forth the assets and liabilities of the LLC as of
the date of complete liquidation. Upon dissolution and liquidation of the LLC,
the Members shall execute, acknowledge and cause to be filed any notice or
certificate required by law to reflect the termination of the LLC.
ARTICLE XII
REPRESENTATIONS AND WARRANTIES
12.01 Representations and Warranties
(a) Reckson represents and warrants to TIAA LLC the
following as of the date hereof; provided, however, that, except as otherwise
expressly provided below, the representations and warranties contained in
paragraphs (i), (v) and (x) below shall only relate to the Leases set forth on
Schedule 5 (the "Applicable Leases"). In addition, at such time as an estoppel
certificate for an Applicable Lease is executed by the applicable tenant and
delivered to TIAA LLC, the representations and warranties set forth in such
paragraphs shall be of no force or effect with respect to such Applicable
Lease, except to the extent a representation or warranty shall be inconsistent
with an item set forth in the applicable estoppel certificate, in which case
such representation or warranty shall continue to be applicable.
(i) Schedule 6 sets forth all Leases. True and
complete copies of the Applicable Leases have been delivered to TIAA LLC and
constitute the entire agreement between landlord and Tenant with respect to
the premises demised thereunder. The Applicable Leases have not been amended
or modified by Reckson or any Affiliate of Reckson, except as set forth on
said Schedule 5 or, to the best of Reckson's knowledge, otherwise amended or
modified. Schedule 5 sets forth all security deposits held by or on behalf of
Reckson under the Applicable Leases. Except as set forth on Schedule 5:
(A) to the best of Reckson's knowledge, no tenant
under an Applicable Lease (a "Tenant") is more than 30 days in
arrears in the payment of base rent due under its Applicable Lease;
Reckson has not given any written notice to any Tenant that such
Tenant has failed to perform any of its material obligations under
its Applicable Lease, which failure remains uncured;
(B) Reckson has not received written notice from
any Tenant that Reckson has failed to perform any of its material
obligations under its Applicable Lease, which failure remains
uncured; and
(C) Reckson has not received written notice from
any Tenant that such Tenant is insolvent and/or has filed for
bankruptcy and/or reorganization:
(ii) Reckson has not received written notice of and,
to the best of Reckson's knowledge, there are no pending condemnation
proceeding or similar proceeding affecting any of the Properties.
(iii) Except for violations (which shall be governed
exclusively by clause (v) below), Reckson has not received written notice
(including a summons or complaint) of any action, suit, litigation, proceeding
or governmental investigation, which remains pending against the Properties,
is not covered by insurance and if adversely determined would have a material
adverse affect on the Properties.
(iv) Reckson has not granted to any Person any right
or option to acquire any of the Properties or any interest in the LLC or in
any other Property Owner.
(v) To the best of Reckson's knowledge, Schedule 5
sets forth all tenant improvement work and tenant work allowances
outstanding with respect to the Applicable Leases.
(vi) Reckson has not received, during the 12-month
period immediately preceding the date hereof, written notice from any
governmental entity having jurisdiction over any of the Properties of any
violation of law applicable to the Properties which violation remains uncured.
(vii) To the best of Reckson's knowledge, Schedule 7
sets forth all of the brokerage commissions outstanding and unpaid
relating to the Properties.
(viii) To the best of Reckson's knowledge, all
licenses and permits required to be obtained by Reckson in connection with the
present use and occupancy of any Property have been obtained and are in full
force and effect, other than any licenses and permits the failure of which to
obtain and be in full force and affect would not have a material adverse
effect on the present use and occupancy of such Property and other than
licenses and permits which a tenant is obligated to obtain pursuant to a
Lease.
(ix) Reckson has delivered to TIAA LLC true and
correct copies of the annual income and expense statements for 1997, 1998 and
1999 and the semi-annual income and expense statements for the period ending
6/30/2000 with respect to each Property for the entire period for which
Reckson (or its Affiliate) has owned such Property.
(x) Except as set forth on Schedule 5, Reckson has
paid or performed all of Landlord's obligations under all Applicable Leases
which are a condition to a Tenant's initial occupancy thereunder and required
to be performed prior to the date hereof.
(xi) Reckson is a "non-foreign person" within the
meaning of Section 1445 of the Code, and, concurrently herewith, Reckson shall
deliver to TIAA LLC a confirmatory affidavit.
(xii) Reckson is not an "employee benefit plan", as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974
("ERISA"), or a "plan", as defined in Section 4975(e) of the Internal Revenue
Code (the "Code"), and the assets of Reckson have not been deemed "plan
assets" of one or more such plans for purposes of Title I of ERISA or Section
4975 of the Code. Reckson is not a "governmental plan" within the meaning of
Section 3(32) of ERISA, and no transaction by or with Reckson is subject to or
in violation of any state statutes applicable to regulation of investments of
and fiduciary obligations with respect to governmental plans.
(xiii) Reckson has heretofore delivered to TIAA LLC
true and complete copies of each of the material contracts affecting the
Property (the "Contracts"); each of the Contracts is in full force and effect
and has not been modified or amended; Reckson is not in default of any of its
material obligations under any of the Contracts and knows of no material
default on the part of the other parties thereto; and the Contracts represent
the complete agreement between Reckson and such other parties as to the
services to be performed or materials to be provided thereunder and the
compensation to be paid for such services or materials, as applicable, and
such other parties possess no unsatisfied claim against Reckson.
(xiv) All insurance policies held by Reckson, the LLC
or any Other Property Owner relating to or affecting the Properties are
described in Schedule 8 hereof; all of such policies are in full force and
effect and Reckson has not received any notice of default or notice
terminating or threatening to terminate any of such insurance policies that
remains uncured.
(xv) To the best of Reckson's knowledge, each Property
Owner owns, leases or has the legal right to use all personal property
(whether tangible or intangible) currently employed in the operation of its
respective Property except where the failure to own, lease or have the legal
right to use such property would not have a material adverse effect on the
applicable Property.
(xvi) The sole ground lease applicable to the
Properties is the Ground Lease, a true and complete copy of which has been
delivered to TIAA LLC. To Reckson's knowledge (A) there exists no default (or
event, condition or act that, with the giving of notice or lapse of time, or
both, would become a default) of 90 ▇▇▇▇▇▇▇ LLC under the Ground Lease, (B)
the Ground Lease is in full force and effect and (C) all rents, additional
rents and sums payable pursuant to the Ground Lease that were or are due and
payable have been paid.
(xvii) There are no collective bargaining agreements
or other labor union contract to which Reckson is a party. None of the
Property Owners has any employees. There are no material controversies pending
between the Managing Agent and any of its employees at the Properties and as
of the date hereof, there are no strikes, slowdowns, work stoppages or
lockouts pending with respect to any employees of the Managing Agent at the
Properties.
(xviii) Neither Reckson nor any Affiliate thereof owns
any interest, or has an option to acquire any interest in (A) any of the
Properties or Property Owners that is not subject to the terms of this
Agreement, or (B) any land adjacent to the Properties that was acquired for
the purposes of the expansion of any of the Properties.
(xix) No third party is entitled to receive any
interest, rent or other payments from any Property Owner calculated based on
the cash flow, receipts or income of any of the Properties.
(xx) Reckson is not a party to any written contract
having a remaining non-cancelable term of more than one year and involving the
payment of more than $100,000 per year affecting any Property.
(xxi) The aggregate tax basis of the LLC in the
Properties immediately before the Closing is not less than $225,000,000.
(xxii) The admission of TIAA LLC to the LLC will not
create a default under any agreement binding as of the date hereof upon the
LLC or any Property Owner.
Any and all uses of the phrase, "to the best of Reckson's
knowledge" or other references to Reckson's knowledge in this Agreement shall
mean the actual, present, conscious knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ (the "Reckson Knowledge Individuals") as to a fact at the time given
after inquiry of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, F.D. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Managing Directors"). Without limiting the
foregoing, TIAA LLC acknowledges that the Reckson Knowledge Individuals have
not performed and are not obligated to perform any investigation or review of
any files or other information in the possession of Reckson, or to make any
inquiry of any persons, or to take any other actions in connection with the
representations and warranties of Reckson set forth in this Agreement other
than inquiry of the Managing Directors. Neither the actual, present, conscious
knowledge of any other individual or entity, nor the constructive knowledge of
the Reckson Knowledge Individuals or of any other individual or entity, shall
be imputed to the Reckson Knowledge Individuals.
(b) The representations and warranties contained in Section
12.01(a) shall survive for 12 months following the date hereof (the "Rep.
Closing Date"). Each such representation and warranty shall automatically be
null and void and of no further force or effect on the Rep. Closing Date
unless, prior to the Rep. Closing Date, TIAA LLC shall have commenced a legal
proceeding (a "Proceeding") against Reckson alleging that Reckson shall be in
breach of such representation or warranty and that TIAA LLC shall have
suffered actual damages as a result thereof in excess of $250,000.00 (the
"Rep. Basket"). Notwithstanding anything to the contrary contained herein TIAA
LLC shall not have claim for any breach of a representation or warranty if
TIAA LLC had actual knowledge of such breach on or before the date hereof. If
TIAA LLC shall have timely commenced a Proceeding and a court of competent
jurisdiction shall, pursuant to a final, non-appealable order in connection
with such Proceeding, determine that (i) Reckson was in breach of any
applicable representation or warranty as of the date of this Agreement, (ii)
TIAA LLC suffered actual damages (the "Damages") by reason of such breach in
an amount exceeding the Rep. Basket and (iii) TIAA LLC did not have actual
knowledge of such breach on or prior to the date hereof, then, subject to the
next sentence, TIAA LLC shall be entitled to receive an amount equal to the
Damages minus the Rep. Basket. Notwithstanding anything to the contrary
contained herein (A) if Reckson breaches any representation or warranty with
respect to a particular Property or Properties, then Reckson's liability to
TIAA LLC and TIAA LLC's damages for such breach shall not exceed Reckson's
Percentage Interest in the allocated value of that Property or Properties and
(B) in no event shall Reckson's liability for all breaches exceed
$7,500,000.00 in the aggregate. Any amounts payable to TIAA LLC under this
Section 12.01(b) shall be paid to TIAA LLC within 30 days following the entry
of such final, non-appealable order and delivery of a copy thereof to Reckson.
TIAA LLC's sole remedy for breach of a representation or warranty contained
herein is to seek damages, subject to the limitations in this paragraph.
(c) Each Member hereby represents and warrants to the other
Member as of the date hereof that:
(i) It has the requisite partnership or limited
liability company corporate power and authority to enter into and perform the
terms of this Agreement; the execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly
authorized and no other partnership, corporate, limited liability company or
other action on the part of such Member or any of its shareholders, partners
or members is necessary in order to permit such Member to consummate the
transactions contemplated hereby. This Agreement constitutes the valid and
binding obligation of such Member, enforceable in accordance with its terms as
the same may be limited, however, by applicable insolvency, bankruptcy or
other laws affecting creditors' rights generally or by general principles of
law.
(ii) Neither the execution, delivery or performance by
such Member of this Agreement or the transactions contemplated hereby will
conflict with, or will result in a breach of, or will constitute a default
under, (A) any agreement or instrument by which such Member may be bound or
(B) any legal requirement or any other judgment, statute, rule, law, order,
decree, writ or injunction of any court or governmental authority.
(iii) Other than as set forth herein, no approval,
consent, order or authorization of, or designation, registration or
declaration with, any governmental authority or other third party is required
in connection with the valid execution and delivery of, and compliance with,
this Agreement by the Member and the performance by the Member of the
transactions contemplated hereby which has not heretofore been obtained.
(iv) The tax identification number of such Member is
as set forth by its signature block to this Agreement.
(d) TIAA LLC acknowledges that, except as expressly set
forth in this Agreement, neither Reckson nor any of its Affiliates has made,
and no such party is liable for or bound in any manner by, any express or
implied warranties, guaranties, promises, statements, inducements,
representations or information pertaining to the Properties, the Property
Owners, the income, expenses, operation or tax benefits of Reckson, the
Properties, the status of the Interests or any other matter or thing with
respect thereto.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.01 Compliance with LLC Act
Each Member agrees not to take any action or fail to take
any action which, considered alone or in the aggregate with other actions or
events, would result in the termination of the LLC under the LLC Act.
13.02 Additional Actions and Documents
Each of the Members hereby agrees to take or cause to be
taken such further actions, to execute, acknowledge, deliver and file or cause
to be executed, acknowledged, delivered and filed such further documents and
instruments, and to use commercially reasonable efforts to obtain such
consents, as may be necessary or as may be reasonably requested in order to
fully effectuate the purposes, terms and conditions of this Agreement.
13.03 Notices
All notices, demands, requests, or other communications
which may be or are required to be given, served, delivered, or sent by any
party to any other party pursuant to this Agreement shall be in writing and
shall be mailed by first-class, registered or certified mail, return receipt
requested, postage prepaid, or transmitted by hand delivery (including
delivery by internationally recognized courier), or facsimile transmission
(with a copy simultaneously delivered by one of the other permitted methods of
delivery), addressed as follows:
(a) To Reckson:
c/o Reckson Associates Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
(b) To TIAA LLC:
Teachers Insurance and Annuity
Association College Retirement Equities Fund
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Managing Director, Real Estate Portfolio
and Vice President of Investments-Real Estate
with a copy to:
To TIAA LLC:
Teachers Insurance and Annuity
Association College Retirement Equities Fund
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Counsel, Real Estate Law
and Vice President of Investments-Real Estate
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served,
delivered or sent. Each notice, demand, request, or communication which shall
be mailed, delivered or transmitted in the manner described above shall be
deemed, given, served or delivered at such time as it is received by the
addressee upon presentation or at such times as delivery is attempted in the
case of any change in address as to which notice was not given to the other
party as required hereunder or in the case of a refusal to accept delivery.
No provision in this Agreement that a failure of one Member
to timely respond or object to a specified notice shall be treated as, or
deemed to be, the approval of such Member of the matter set forth in the
specified notice (or as a waiver of the Member's right to object thereto)
unless such specified notice states in ALL CAPITAL LETTERS that the failure to
timely respond or object to such specified notice within a specified time
period set forth herein shall be treated as approval of such matter set forth
herein (or as a waiver of such Member's right to object thereto).
13.04 Expenses
(a) TIAA LLC shall pay all costs of its due diligence in
connection with this transaction. Each Member shall each pay its own legal
fees and expenses in connection with the preparation, negotiation and
execution of this Agreement. TIAA LLC shall be responsible for paying all
costs of title insurance to insure its Interest and is exclusively entitled to
any proceeds which may result from the title policies insuring its Interest.
Reckson is exclusively entitled to any proceeds which may result from the
title insurance policies insuring the Properties and the Property Owners'
title therein as of the day before the date hereof. All other costs and
expenses attributable to TIAA LLC's acquisition of its Interest shall be
deemed to be LLC Charges. TIAA LLC acknowledges that, in connection with the
transfer of the Properties to the LLC, TIAA LLC shall waive any obligation on
the part of Operating Member to pursue Reckson OP under the warranty deeds
executed in connection with such transfers and, if such a claim is made, any
amounts collected pursuant to such claim shall be retained solely by Reckson.
(b) In the event of any dispute which results in legal
proceedings between the Members, all reasonable legal fees, court costs and
disbursements incurred in connection with such action by the party prevailing
in such legal proceedings after a final non-appealable judgment of a court of
competent jurisdiction has been entered shall be paid by the party not
prevailing in such action within 10 days after demand therefor.
13.05 Obligations Are Without Recourse
Notwithstanding anything to the contrary contained in this
Agreement, no recourse shall be had against either Member, whether by levy or
execution or otherwise, for the payment of any loans or other payments due or
for any other claim under this Agreement or based on the failure of
performance or observance of any of the terms and conditions of this Agreement
against such Member, the partners, members or shareholders of such Member or
any predecessor, successor or Affiliate of such Member or any of their
respective assets other than such Member's Interest or any undistributed Net
Ordinary Cash Flow or Net Extraordinary Cash Flow due or to become due to such
Member (collectively, "Undistributed Income") or against any principal,
partner, shareholder, controlling person, officer, director, agent or employee
of any of the aforesaid Persons, under any rule of law, statute or
constitution, or by the enforcement of any assessment or penalty, or
otherwise, nor shall any of such Persons be personally liable for any
contributions, loans, payments or claims, or liable for any deficiency
judgment based thereon or with respect thereto, it being expressly understood
that the sole remedies of the LLC or any other Member with respect to such
amounts and claims shall be against such Interest and such Member's
Undistributed Income, and that all such liability of the aforesaid Persons,
except as expressly provided in this Section, is expressly waived and released
as a condition of, and as consideration for, the execution of this Agreement;
provided, however, that nothing contained in this Agreement (including,
without limitation, the provisions of this Section), (a) shall constitute a
waiver of any obligation of a Member under this Agreement, (b) shall be taken
to prevent recourse to and the enforcement against such Interest and
Undistributed Income for all of the respective liabilities, obligations, and
undertakings of the aforesaid Persons contained in this Agreement, (c) shall
be taken to prevent recourse to and the enforcement against (i) a transferring
Member of its liabilities, obligations and undertakings contained in any
instrument of assignment or indemnity delivered in connection with such
transfer (but such recourse shall be limited to the proceeds received by such
transferring Member in connection with the assignment to the purchasing Member
(or its designee)) or (ii) any security delivered by any of the aforesaid
Persons pursuant to this Agreement or (d) shall be taken to limit or restrict
any action or proceeding against any of the aforesaid Persons which does not
seek damages or a money judgment or does not seek to compel payment of money
(or the performance of obligations which would require the payment of money)
by any of the aforesaid Persons. For the purposes of this Section 13.05, the
term "shareholder" shall be deemed to include the shareholders of any
corporation which is a shareholder, principal, partner or agent and the term
"partner" shall be deemed to include the partners of any partnership which is
(w) a partner in a partnership, (x) a shareholder in a corporation, (y) a
principal or (z) an agent.
13.06 Time of the Essence
Except as otherwise expressly provided in this Agreement,
time shall be of the essence with respect to all time periods set forth in
this Agreement.
13.07 Ownership of LLC Assets
The Interest of each Member shall be personal property for
all purposes. All real and other property owned by the LLC shall be deemed
owned by the LLC as LLC property. No Member, individually, shall have any
direct ownership of such property and title to such property shall be held in
the name of the LLC.
13.08 Status Reports
Recognizing that each Member may find it necessary from time
to time to establish to third parties, such as accountants, banks, mortgagees,
prospective transferees of its Interest, or the like, the then current status
of performance of the LLC and the Interests, each Member shall, within 10
Business Days following the written request of the other Member (provided any
such written request is not made more than twice in any 12-month period),
furnish a written statement (in recordable form, if requested) on the status
of the following:
(a) that this Agreement is unmodified and in full force and
effect (or if there have been modifications, that this Agreement is in full
force and effect as modified and stating the modifications);
(b) stating whether or not to the best knowledge of such
certifying Member (i) the other Member in the LLC is in default in keeping,
observing or performing any of the terms contained in this Agreement and, if
in default, specifying each such default (limited to those defaults of which
the certifying Member has knowledge) and (ii) there has occurred an event that
with the passage of time or the giving of notice, or both, would ripen into a
default hereunder on the part of such other Member (limited to those events of
which the certifying Member has knowledge);
(c) stating the amount of Default Loans made by or to such
certifying Member and the amount of accrued but unpaid interest thereon; and
(d) stating the Percentage Interests of the Members; and
(e) to the best of the knowledge and belief of the party
making such statement, with respect to any other matters as may be reasonably
requested by the other Member.
Such statement may be relied upon (and shall state that it may be relied upon)
by the other Member and any other Person for whom such statement is requested,
but no such statement shall operate as a waiver as to any default or other
matter as to which the Member executing it did not have actual knowledge.
13.09 Survival
Subject to the provision of Section 12.01(b), it is the
express intention and agreement of the Members that all covenants, agreements,
statements, representations, warranties and indemnities made in this Agreement
shall survive the execution and delivery of this Agreement.
13.10 Waivers
Neither the waiver by the LLC or either Member of a breach
of or a default under any of the provisions of this Agreement, nor the failure
of the LLC or either Member, on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right, remedy or privilege
hereunder, shall thereafter be construed as a waiver of any subsequent breach
or default of a similar nature, or as a waiver of any such provisions, rights,
remedies or privileges hereunder. Each Member hereby waives the right to trial
by jury in connection with any legal proceeding between the Members with
respect to this Agreement or the LLC.
13.11 Exercise of Rights
No failure or delay on the part of either Member or the LLC
in exercising any right, power or privilege hereunder and no course of dealing
between the Members or between a Member and the LLC shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. Except as otherwise provided
in this Agreement, the rights and remedies herein expressly provided are
cumulative and not exclusive of any other rights or remedies which either
Member or the LLC would otherwise have at law or in equity or otherwise.
13.12 Binding Effect
Subject to any provisions hereof restricting assignment,
this Agreement shall be binding upon and shall inure to the benefit of both
Members and their respective heirs, devises, executors, administrators, legal
representatives, successors and assigns.
13.13 Limitation on Benefits of this Agreement
It is the explicit intention of the Members that no Person
other than the Members and the LLC is or shall be entitled to bring any action
to enforce any provision of this Agreement against either Member or the LLC,
and that the covenants, undertakings and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only
by, the Members (or their respective successors and assigns as permitted
hereunder), and the LLC.
13.14 Severability
The invalidity of any one or more provisions hereof or of
any other agreement or instrument given pursuant to or in connection with this
Agreement shall not affect the remaining portions of this Agreement or any
such other agreement or instrument or any part thereof, all of which are
inserted conditionally on their being held valid in law; and in the event that
one or more of the provisions contained herein or therein should be invalid,
or should operate to render this Agreement or any such other agreement or
instrument invalid, this Agreement and such other agreements and instruments
shall be construed as if such invalid provisions had not been inserted.
13.15 Amendment Procedure
This Agreement may only be modified or amended by the
unanimous written consent of the Members.
13.16 Entire Agreement
This Agreement and any agreements executed contemporaneously
herewith contain the entire agreement between the Members with respect to the
matters contemplated herein, and supersede all prior oral or written
agreements, commitments or understandings with respect to the matters provided
for herein and therein.
13.17 Headings
Article, Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed
to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
13.18 Governing Law
This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed in accordance with the laws of Delaware (but not including the
choice of law rules thereof).
13.19 Execution in Counterparts
To facilitate execution, this Agreement may be executed in
as many counterparts as may be required; and it shall not be necessary that
the signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall
be sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
13.20 Consents and Approvals
No consent or approval requested of either Member shall be
effective unless such consent or approval shall be delivered by such Member in
a written instrument in advance of the action with respect to which such
consent or approval was requested.
13.21 Brokerage
Each Member represents and warrants to the other Member that
it has not dealt with any broker in connection with the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
except Eastdil Realty ("Broker"). Reckson will pay the Broker's commission by
separate agreement and will indemnify TIAA LLC from any claims asserted
against TIAA LLC or the LLC by Broker. Each Member shall indemnify the other
and the LLC from any claims asserted against the other Member or the LLC by
reason of any party other than Broker claiming to have dealt with such Member.
13.22 Indemnification
(a) The LLC shall indemnify each of the Members and hold
them and their Affiliates (collectively, the "Indemnitees") harmless from and
against any and all claims, demands, losses, damages, liabilities, lawsuits
and other proceedings, judgments, awards, costs and expenses (including
reasonable attorneys' fees, disbursements and court costs) to the extent the
same arise directly or indirectly from the ownership, operation, use,
maintenance or management of the Properties, provided the same does not arise
out of the gross negligence or willful misconduct of, or willful breach of the
express terms of this Agreement by, such Indemnitee. The LLC shall indemnify,
defend and protect each Member from any losses, liabilities, damages, costs
and expenses (including, without limitation, reasonable attorneys' fees and
disbursements) incurred by each Member by reason of its acts or omissions
which are for or on behalf of the LLC, except for such Member's gross
negligence or willful misconduct or willful breach of the express terms of
this Agreement; provided, however, that in seeking to recover from the LLC
either Member may look solely to the LLC Assets and neither Member (nor any of
their Affiliates) shall be personally liable nor shall any of their (or their
Affiliates') assets be available to satisfy any claim or judgment awarded to
either Member seeking indemnity hereunder. Except in the case of gross
negligence or willful misconduct or willful breach of the express terms of
this Agreement by a Member, neither Member shall be liable to the other Member
or the LLC for (i) any act or omission performed or omitted in good faith,
(ii) such Member's failure or refusal to perform any act, except those
required by the terms of this Agreement or (iii) the negligence, dishonesty or
bad faith of any agent, consultant or broker of the LLC selected, engaged or
retained in good faith and with reasonable prudence. The indemnification
provided by this Section 13.22 shall be recoverable only out of the LLC
Assets, and neither Member shall have any personal liability (or obligation to
contribute capital to the LLC) on account thereof. The Members shall be
entitled to rely on the advice of counsel or public accountants experienced in
the matter at issue and any act or omission of such Member pursuant to such
advice shall in no event subject either Member to liability to the LLC or the
other Member.
(b) Without limiting the provisions of Section 13.22(a)
above, in any action brought against either Member pursuant to the LLC Act,
the Member named as a defendant in such suit shall be entitled to be
indemnified to the fullest extent permitted under Section 18-108 of the LLC
Act or any other applicable law (the "Indemnity Laws") and, to the fullest
extent permitted under the Indemnity Laws, the LLC shall advance any expenses
incurred by such defending Member in defending such action, subject to
repayment.
13.23 Business Day Extension
In the event any time period or any date provided in this
Agreement ends or falls on a day other than a business day, then such time
period shall be deemed to end and such date shall be deemed to fall on the
next succeeding business day, and performance hereunder may be made on such
Business Day with the same force and effect as if made on such other day.
13.24 Consent to Jurisdiction
Any legal suit, action or proceeding against either Member
arising out of or relating to this Agreement, may be instituted in any Federal
or state court in New York, New York, and each of the Members hereby waives
any objection which it may now or hereafter have to the laying of venue of any
such suit, action or proceeding, and each of the Partners hereby irrevocably
submits to the jurisdiction of any such court in any such suit, action or
proceeding.
13.25 Transactions with Affiliates
Anything contained in this Agreement to the contrary
notwithstanding, in addition to the Management Agreement, the Operating Member
may cause the LLC or the Property Owners to enter into agreements or other
arrangements for the furnishing to the LLC of goods or services with Frontline
Capital Group LLC ("Frontline") or any entity in which Frontline has a direct
or indirect investment or any Person who is an Affiliate of the Operating
Member (including, but not limited to, agreements or arrangements for the
construction of Tenant improvements and other construction relating to the
Properties and telephone, internet and other communication services) if such
agreements or other arrangements shall be on fair market terms and the
services shall be competitive with those that the LLC would have obtained from
an unaffiliated third party of quality and reputation similar to such
Affiliate.
13.26 No Presumption
This Agreement shall be construed without regard to any
presumption against the party causing this Agreement to be drafted.
13.27 Confidentiality
(a) Each of the Members represents and warrants that prior
to the date hereof it has not, except with the consent of the other Members,
disclosed any of the terms, conditions, obligations or matters contained in,
or relating to, this Agreement and the transactions contemplated herein other
than to their respective counsel, accountants and other advisors and their
members, partners, managers, investors and lenders. Each of the Members
covenants and agrees (and agrees to cause its employees, agents, or
Affiliates) not to disclose the economic terms of this Agreement except (i) to
any lender providing financing to the LLC, (ii) to such Member's lenders,
accountants and attorneys, (iii) to any prospective purchaser of its Interest,
so long as such party is bound by a confidentiality agreement on terms which
are substantially similar in all respects to this Section 13.05, (iv) pursuant
to a subpoena or order issued by a court, arbitrator or governmental body,
agency or official, (v) to one or more of its potential investors, (vi)
pursuant to any other governmental requirements (e.g., securities law
requirements), or (vii) with the prior written consent of the other Member. To
avoid any ambiguity, TIAA LLC recognizes and agrees that Reckson will be
required to file this Agreement with the Securities and Exchange Commission.
In the event that either Member shall receive a request to disclose any of the
terms of this Agreement under a subpoena or order, such Member shall (x)
promptly notify the LLC and the other Member, (y) consult with the LLC on the
advisability of taking steps to resist or narrow such request, and (z) if
disclosure is required or deemed advisable, reasonably cooperate with the LLC
(at no cost to such Member) in any attempt it may make to obtain an order or
other assurance that confidential treatment will be accorded those terms of
this Agreement that are disclosed.
(b) No Member shall issue any press releases or other
announcements regarding the transactions contemplated hereby unless the other
Member first shall reasonably approve such release or announcement, in
writing.
13.28 Intentionally Omitted
13.29 Cooperation of Operating Member
In the event of any proposed sale, assignment or other
transfer of all or a portion of a Property or portion thereof or a transfer of
an interest in any Member or a Transfer of any Member's Interest in accordance
with the terms hereof, the Operating Member shall, or shall cause the Managing
Agent to, upon reasonable notice, (a) make available to the prospective
transferee at all reasonable hours all books of account, correspondence,
leases, and all other information related to the Properties and to the
management thereof at the request and expense of the requesting Member, or
copies thereof; and (b) cause the management personnel involved directly or
indirectly in the affairs of the LLC and the Property Owners to cooperate
fully with the requesting Member and its proposed transferee or designees of
either of them and furnish information in their possession as reasonably
requested by such persons as to the status of the affairs of the LLC and the
Property Owners.
13.30 Arbitration
(a) Except as otherwise expressly provided herein, any
dispute requiring arbitration in accordance with the terms of this Agreement
shall be finally settled by arbitration in accordance with the CPR Institute
for Dispute Resolution Rules for Non-Administered Arbitration, except as
modified herein. The place of arbitration shall be New York, New York. Either
Party may commence arbitration by addressing to the other party a notice of
arbitration. Within 5 days after receipt of the notice of arbitration, the
respondent shall deliver to the claimant a notice of defense. In the event
respondent does not deliver such a notice, all claims set forth in the demand
shall be deemed denied.
(b) The arbitration shall be conducted by a sole arbitrator
jointly appointed by the parties within 10 days of receipt by the respondent
of the notice of arbitration. If the parties have not jointly appointed an
arbitrator by that time, either party may request the CPR to appoint the sole
arbitrator, and the CPR shall endeavor to make the appointment within 5 days
of that request, provided, however, that its failure to meet that deadline
shall in no way impair the effectiveness of the appointment. The CPR shall
endeavor to appoint as arbitrator a person with substantial experience in the
real estate business, but the appointee's qualifications or lack of
qualifications in this respect shall under no circumstances impair the
effectiveness of the appointment or provide cause for challenge. The CPR shall
have no obligation to follow the procedures set forth in Rule 6, but shall
instead appoint a person whom it deems qualified to serve.
(c) The arbitrator shall have authority to take all steps
necessary and appropriate in order to hold a hearing within 40 days of his or
her appointment and to render an award within 5 days thereafter. The
arbitrator shall have full discretion to set the procedure or modify the Rules
in any way he or she deems necessary in order to meet those deadlines,
provided, however, that failure to meet those deadlines shall in no way affect
the validity or effectiveness of the award.
(d) The arbitrator shall have no authority to award damages
of any kind in connection with any matter or claim that is subject to
arbitration under this Agreement and the parties expressly waive their right
to seek any damages for any matter or claim which is subject to arbitration
hereunder.
(e) The arbitration and this clause shall be governed by
Title 9 (Arbitration) of the United States Code, and judgment on the award may
be entered by any court of competent jurisdiction. The arbitrator's award
shall be final and binding upon the parties. The parties herewith consent to
jurisdiction in the federal and state courts located in the County of New
York, State of New York, for the purpose of enforcing the award.
(f) Each party is required to continue to perform its
obligations under this Agreement pending final resolution of any dispute
arising out of or relating to this Agreement, unless to do so would be
impossible or impracticable under the circumstances.
13.31 Lender's Rights
If a mortgage is granted with respect to a Property, the
mortgagee may foreclose on its collateral free and clear of any rights under
Articles 9 or 10 on the part of the Members under this Agreement.
13.32 Art Work
All art work at or on the Properties as of the date hereof
(except for the art work described on Schedule 9) (all such art work other
than as set forth on Schedule 9, is collectively, the "Reckson Artwork"),
shall be the exclusive personal property of members of Senior Management of
Reckson or Affiliates of Reckson other than a Property Owner. Reckson or any
of its agents may at any time remove the Reckson Artwork and the LLC shall
agree to cure any damage to the Properties caused by such removal other than
structural damage, which shall be the responsibility of Reckson.
Notwithstanding the foregoing, no rental (or other fee) shall be charged to
the Property Owner or the LLC in connection with the Reckson Artwork.
13.33 Signage
Reckson may place at the Properties signs, logos and other
items identifying the Properties as "Reckson" or "RA" properties or as
properties "managed by Reckson" (or employing similar nomenclature); provided
that in no event shall it be stated on such items that the Properties are
"owned" by Reckson.
13.34 Ground Lease
Without in any way limiting Reckson's rights elsewhere under
this Agreement, Reckson may cause the LLC to guarantee to the landlord under
the Ground Lease the obligations of the tenant thereunder accruing from and
after the date hereof, it being understood and acknowledged by TIAA LLC that a
primary purpose of such guarantee shall be to obtain the release of Reckson OP
from its obligations under the Ground Lease.
IN WITNESS WHEREOF, the undersigned have caused this
Operating Agreement to be duly executed on their behalf as of the day and year
first hereinabove set forth.
RECKSON TRI-STATE MEMBER LLC
Reckson Operating Partnership, L.P.
By: Reckson Associates Realty Corp.,
its general partner
By:__________________________
Name:
Title:
Tax Identification Number:
▇▇-▇▇▇▇▇▇▇
TIAA TRI-STATE LLC
By: Teachers Insurance And Annuity
Association, its sole Member
By:__________________________
Name:
Title:
Tax Identification Number:
SCHEDULE 3
The parties acknowledge that in connection with its
engineering review of Stamford Towers TIAA LLC had identified a
potential issue relating to the installation of the exterior pre-cast
concrete facade panels (the "Potential Issue"). From and after the
date hereof, Reckson, acting reasonably and in good faith, with the
best interest of the LLC in mind, will continue to investigate and
take the appropriate actions in addressing the Potential Issue,
including retaining Wiss Janney, or another reputable engineering
firm reasonably acceptable to TIAA LLC, to prescribe a plan of action
to further investigate the Potential Issue. If as a result of such
investigation the engineering firm recommends that repairs be made to
remediate the Potential Issue, Reckson shall promptly cause the LLC
to make such repairs. The cost of such repairs shall be borne as
follows:
(a) The first $823,000 of cost shall be borne by the LLC as
an LLC Charge;
(b) Any additional cost shall be contributed by Reckson to
the LLC (without any increase in its Capital Account or any increase
in its deemed Capital Contribution or Percentage Interest).
OPERATING AGREEMENT
OF
RT TRI-STATE LLC
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.............................................................................................2
ARTICLE II FILING/ADMISSION; NAME; PLACE OF BUSINESS.............................................................19
2.01 Filing/Admission of TIAA LLC.......................................................................19
2.02 Name of LLC........................................................................................19
2.03 Place of Business..................................................................................20
2.04 Registered Office and Registered Agent.............................................................20
ARTICLE III PURPOSES AND POWERS OF LLC...........................................................................20
3.01 Purposes...........................................................................................20
3.02 Powers.............................................................................................20
ARTICLE IV TERM OF LLC...........................................................................................21
ARTICLE V CAPITAL................................................................................................21
5.01 Capital Contributions and Percentage Interests of the Members......................................21
5.02 Additional Contributions...........................................................................24
5.03 Liability of Members...............................................................................27
5.04 Return of Capital..................................................................................27
ARTICLE VI ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS.......................................................27
6.01 Capital Accounts...................................................................................27
6.02 Allocation of Net Income or Net Loss...............................................................28
6.03 Allocations of Nonrecourse Deductions; Minimum Gain Chargeback; Qualified Income Offset...........28
6.04 Tax Allocations; Allocation of Income and Loss With Respect to LLC Interests Transferred...........29
6.05 Distributions of Net Ordinary Cash Flow and Net Extraordinary Cash Flow...........................30
6.06 Section 754 Election...............................................................................31
ARTICLE VII MANAGEMENT...........................................................................................31
7.01 General Scope of Duties and Authority..............................................................31
7.02 Joint Decisions....................................................................................31
7.03 Business Plan......................................................................................36
7.04 Other Activities of Members........................................................................39
7.05 Right of First Negotiation on 101 JFK Parkway......................................................39
ARTICLE VIII BANK ACCOUNTS; BOOKS AND RECORDS; STATEMENTS; TAXES; FISCAL YEAR...................................40
8.01 Books of Account...................................................................................40
8.02 Fiscal Year........................................................................................40
8.03 Bank Accounts......................................................................................40
8.04 Financial Statements...............................................................................41
8.05 Tax Returns; Tax Matters Partner...................................................................41
8.06 Partnership........................................................................................42
8.07 Management Agreement Records.......................................................................42
ARTICLE IX TRANSFERS OF INTERESTS; RIGHT OF FIRST REFUSAL; PLEDGES...............................................42
9.01 Restrictions on Transfers and Pledges of LLC Interests.............................................42
9.02 Intentionally Omitted..............................................................................43
9.03 Transfers and Pledges to Affiliates................................................................43
9.04 Right of First Refusal.............................................................................44
9.05 Buy-Sell of Properties.............................................................................48
9.06 Special Transfer Provisions Applicable to Reckson..................................................50
9.07 Conditions Applicable to All Transfers.............................................................57
9.08 Admission of Transferee............................................................................59
9.09 Pledge of Interest.................................................................................59
ARTICLE X SALE AND FINANCING OF PROPERTIES.......................................................................61
10.01 Sale of Properties to Third Parties...............................................................61
10.02 Relationship of Certain Rights....................................................................64
10.03 Financing/Refinancing by Reckson..................................................................64
ARTICLE XI DISSOLUTION AND LIQUIDATION...........................................................................68
11.01 Events Causing Dissolution........................................................................68
11.02 Right to Continue Business of the LLC.............................................................69
11.03 Distributions Upon Dissolution....................................................................69
ARTICLE XII REPRESENTATIONS AND WARRANTIES.......................................................................70
12.01 Representations and Warranties....................................................................70
ARTICLE XIII MISCELLANEOUS PROVISIONS............................................................................75
13.01 Compliance with LLC Act...........................................................................75
13.02 Additional Actions and Documents..................................................................75
13.03 Notices...........................................................................................76
13.04 Expenses..........................................................................................77
13.05 Obligations Are Without Recourse..................................................................78
13.06 Time of the Essence...............................................................................79
13.07 Ownership of LLC Assets...........................................................................79
13.08 Status Reports....................................................................................79
13.09 Survival..........................................................................................80
13.10 Waivers...........................................................................................80
13.11 Exercise of Rights................................................................................80
13.12 Binding Effect....................................................................................80
13.13 Limitation on Benefits of this Agreement..........................................................80
13.14 Severability......................................................................................81
13.15 Amendment Procedure...............................................................................81
13.16 Entire Agreement..................................................................................81
13.17 Headings..........................................................................................81
13.18 Governing Law.....................................................................................81
13.19 Execution in Counterparts.........................................................................82
13.20 Consents and Approvals............................................................................82
13.21 Brokerage.........................................................................................82
13.22 Indemnification...................................................................................82
13.23 Business Day Extension............................................................................83
13.24 Consent to Jurisdiction...........................................................................83
13.25 Transactions with Affiliates......................................................................84
13.26 No Presumption....................................................................................84
13.27 Confidentiality...................................................................................84
13.28 Intentionally Omitted.............................................................................85
13.29 Cooperation of Operating Member...................................................................85
13.30 Arbitration.......................................................................................85
13.31 Lender's Rights...................................................................................86
13.32 Art Work..........................................................................................86
13.33 Signage...........................................................................................87
13.34 Ground Lease......................................................................................87
SCHEDULES
---------
SCHEDULE 1 ALLOCATED VALUES
SCHEDULE 2-A LLC CAPITAL PROJECT COSTS
SCHEDULE 2-B LLC LEASING COSTS
SCHEDULE 3 MISCELLANEOUS LIABILITIES UNDER LEASES
SCHEDULE 4 APPROVED ENTITY LIST
SCHEDULE 5 APPLICABLE LEASES
SCHEDULE 6 LEASES
SCHEDULE 7 BROKERAGE COMMISSIONS
SCHEDULE 8 INSURANCE
SCHEDULE 9 RECKSON ARTWORK
EXHIBITS
EXHIBIT A FORM OF MANAGEMENT AGREEMENT
EXHIBIT B INTENTIONALLY OMITTED
EXHIBIT C FISCAL YEAR 2000 BUSINESS PLAN
EXHIBIT D CAPITAL BUDGET PROJECTIONS FOR FISCAL
YEARS 2001 AND 2002