EXHIBIT 10
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
RECKSON OPERATING PARTNERSHIP, L.P.
June 2, 1995
(amended on
December 6, 1995)
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 ORGANIZATIONAL MATTERS . . . . . . . . . . . . . . . . . . . . 14
Section 2.1. Continuation . . . . . . . . . . . . . . . . . . . . . 14
Section 2.2. Name . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.3. Registered Office and Agent: Principal Office . . . . 15
Section 2.4. Power of Attorney . . . . . . . . . . . . . . . . . . 15
Section 2.5. Term . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.6. Admission of Limited Partners . . . . . . . . . . . . 17
ARTICLE 3 PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.1. Purpose and Business . . . . . . . . . . . . . . . . . 17
Section 3.2. Powers . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 4 CAPITAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . 18
Section 4.1. Capital Contributions of the Partners . . . . . . . . 18
Section 4.2. Issuances of Additional Partnership Interests . . . . 19
Section 4.3. Contribution of Proceeds of Issuance of REIT
Shares . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.4. Preemptive Rights . . . . . . . . . . . . . . . . . . 21
ARTICLE 5 DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.1. Requirement and Characterization of
Distributions . . . . . . . . . . . . . . . . . . . . 21
Section 5.2. Amounts Withheld . . . . . . . . . . . . . . . . . . . 22
Section 5.3. Distributions Upon Liquidation . . . . . . . . . . . . 22
Section 5.4. Restricted Distributions . . . . . . . . . . . . . . . 22
ARTICLE 6 ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.1. Allocations For Capital Account Purposes . . . . . . . 22
ARTICLE 7 MANAGEMENT AND OPERATIONS OF BUSINESS . . . . . . . . . . . . . 23
Section 7.1. Management . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.2. Certificate of Limited Partnership . . . . . . . . . . 28
Section 7.3. Restrictions on General Partner Authority . . . . . . 29
Section 7.4. Reimbursement of the General Partner and
the Company . . . . . . . . . . . . . . . . . . . . . 29
Section 7.5. Outside Activities of the General Partner . . . . . . 31
Section 7.6. Contracts with Affiliates . . . . . . . . . . . . . . 31
Section 7.7. Indemnification . . . . . . . . . . . . . . . . . . . 32
Section 7.8. Liability of the General Partner . . . . . . . . . . . 34
Section 7.9. Other Matters Concerning the General Partner . . . . . 35
Section 7.10. Title to Partnership Assets . . . . . . . . . . . . . 36
Section 7.11. Reliance by Third Parties . . . . . . . . . . . . . . 36
ARTICLE 8 RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS . . . . . . . . . . 37
Section 8.1. Limitation of Liability . . . . . . . . . . . . . . . 37
Section 8.2. Management of Business . . . . . . . . . . . . . . . . 37
Section 8.3. Outside Activities of Limited Partners . . . . . . . . 38
Section 8.4. Return of Capital . . . . . . . . . . . . . . . . . . 38
Section 8.5. Rights of Limited Partners Relating to the
Partnership . . . . . . . . . . . . . . . . . . . . . 38
Section 8.6. Redemption Right . . . . . . . . . . . . . . . . . . . 39
ARTICLE 9 BOOKS, RECORDS, ACCOUNTING AND REPORTS . . . . . . . . . . . . 41
Section 9.1. Records and Accounting . . . . . . . . . . . . . . . . 41
Section 9.2. Fiscal Year . . . . . . . . . . . . . . . . . . . . . 42
Section 9.3. Reports . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 10 TAX MATTERS . . . . . . . . . . . . . . . . . . . . . . . 42
Section 10.1. Preparation of Tax Returns . . . . . . . . . . . . . 42
Section 10.2. Tax Elections . . . . . . . . . . . . . . . . . . . . 43
Section 10.3. Tax Matters Partner . . . . . . . . . . . . . . . . . 43
Section 10.4. Organizational Expenses . . . . . . . . . . . . . . . 45
Section 10.5. Withholding . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE 11 TRANSFERS AND WITHDRAWALS . . . . . . . . . . . . . . . . 46
Section 11.1. Transfer . . . . . . . . . . . . . . . . . . . . . . 46
Section 11.2. Transfer of the Company's General Partner
Interest and Limited Partner Interest . . . . . . . . 47
Section 11.3. Limited Partners' Rights to Transfer . . . . . . . . 47
Section 11.4. Substituted Limited Partners . . . . . . . . . . . . 49
Section 11.5. Assignees . . . . . . . . . . . . . . . . . . . . . . 49
Section 11.6. General Provisions . . . . . . . . . . . . . . . . . 50
ARTICLE 12 ADMISSION OF PARTNERS . . . . . . . . . . . . . . . . . . 51
Section 12.1. Admission of Successor General Partner . . . . . . . 51
Section 12.2. Admission of Additional Limited Partners . . . . . . 51
Section 12.3. Amendment of Agreement and Certificate of
Limited Partnership . . . . . . . . . . . . . . . . . 52
ARTICLE 13 DISSOLUTION, LIQUIDATION AND TERMINATION . . . . . . . . . 53
Section 13.1. Dissolution . . . . . . . . . . . . . . . . . . . . . 53
Section 13.2. Winding Up . . . . . . . . . . . . . . . . . . . . . 54
Section 13.3. Compliance with Timing Requirements of
Regulations . . . . . . . . . . . . . . . . . . . . . 56
Section 13.4. Deemed Distribution and Recontribution . . . . . . . 56
Section 13.5. Rights of Limited Partners . . . . . . . . . . . . . 57
Section 13.6. Notice of Dissolution . . . . . . . . . . . . . . . . 57
Section 13.7. Termination of Partnership and Cancellation
of Certificate of Limited Partnership . . . . . . . . 57
Section 13.8. Reasonable Time for Winding-Up . . . . . . . . . . . 57
Section 13.9. Waiver of Partition . . . . . . . . . . . . . . . . . 57
ARTICLE 14 AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS . . . . . . . 58
Section 14.1. Amendment of Partnership Agreement . . . . . . . . . 58
Section 14.2. Meetings of the Partners . . . . . . . . . . . . . . 59
ARTICLE 15 GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . 61
Section 15.1. Addresses and Notice . . . . . . . . . . . . . . . . 61
Section 15.2. Titles and Captions . . . . . . . . . . . . . . . . . 61
Section 15.3. Pronouns and Plurals . . . . . . . . . . . . . . . . 61
Section 15.4. Further Action . . . . . . . . . . . . . . . . . . . 61
Section 15.5. Binding Effect . . . . . . . . . . . . . . . . . . . 61
Section 15.6. Creditors . . . . . . . . . . . . . . . . . . . . . . 61
Section 15.7. Waiver . . . . . . . . . . . . . . . . . . . . . . . 62
Section 15.8. Counterparts . . . . . . . . . . . . . . . . . . . . 62
Section 15.9. Applicable Law . . . . . . . . . . . . . . . . . . . 62
Section 15.10. Invalidity of Provisions . . . . . . . . . . . . . . 62
Section 15.11. Entire Agreement . . . . . . . . . . . . . . . . . . 62
EXHIBITS
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Exhibit A - Partners Contributions and Partnership Interests
Exhibit B - Capital Account Maintenance
Exhibit C - Special Allocation Rules
Exhibit D - Notice of Redemption
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
RECKSON OPERATING PARTNERSHIP, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF RECKSON
OPERATING PARTNERSHIP, L.P. (this "Agreement"), dated as of June 2, 1995, is
entered into by and among Reckson Associates Realty Corp., a Maryland
Corporation (the "Company"), and the Persons (as defined below) whose names
are set forth on Exhibit A as attached hereto (as it may be amended from time
to time).
WHEREAS, the Company and the Persons whose names are set forth on
Exhibit A, as attached hereto, desire to enter into this Amended and Restated
Agreement of Limited Partnership of Reckson Operating Partnership, L.P. (the
"Partnership"); and
WHEREAS, the Company and the Persons whose names are set forth on
Exhibit A, as attached hereto, will make certain capital contributions to the
Partnership;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this
Agreement.
"Act" means the Delaware Revised Uniform Limited Partnership Act, 6
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Del. C. Section17-101, et seq., as it may be amended from time to time,
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and any successor to such statute.
"Additional Limited Partner" means a Person admitted to the
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Partnership as a Limited Partner pursuant to Section 12.2 hereof and who is
shown as such on the books and records of the Partnership.
"Adjusted Capital Account" means the Capital Account maintained for
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each Partner as of the end of each Partnership taxable year (i) increased by
any amounts which such Partner is obligated to restore pursuant to any
provision of this Agreement or is deemed to be obligated to restore pursuant
to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5); and (ii) decreased by the items described in Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and
1.704-1(b)(2)(ii)(d)(6). The foregoing definition of Adjusted Capital Account
is intended to comply with the provisions of Regulations Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
"Adjusted Capital Account Deficit" means, with respect to any
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Partner, the deficit balance, if any, in such Partner's Adjusted Capital
Account as of the end of the relevant Partnership taxable year.
"Adjusted Property" means any property, the Carrying Value of which
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has been adjusted pursuant to Exhibit B hereof. Once an Adjusted Property is
deemed distributed by, and recontributed to, the Partnership for federal
income tax purposes upon a termination thereof pursuant to Section 708 of the
Code, such property shall thereafter constitute a Contributed Property until
the Carrying Value of such property is further adjusted pursuant to Exhibit B
hereof.
"Affiliate" means, with respect to any Person, (i) any Person
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directly or indirectly controlling, controlled by or under common control
with such Person; (ii) any Person owning or controlling ten percent (10%) or
more of the outstanding voting interests of such Person; (iii) any Person of
which such Person owns or controls ten percent (10%) or more of the voting
interests; or (iv) any officer, director, general partner or trustee of such
Person or of any Person referred to in clauses (i), (ii), and (iii) above.
"Agreed Value" means (i) in the case of any Contributed Property as
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of the time of its contribution to the Partnership, the 704(c) Value of such
property, reduced by any liabilities either assumed by the Partnership upon
such contribution or to which such property is subject when contributed, and
(ii) in the case of any property distributed to a Partner by the Partnership,
the Partnership's Carrying Value of such property at the time such property
is distributed, reduced by any indebtedness either assumed by such Partner
upon such distribution or to which such property is subject at the time of
distribution as determined under Section 752 of the Code and the Regulations
thereunder. The aggregate Agreed Value of the Contributed Property
contributed or deemed contributed by each Partner as of the date hereof is as
set forth in Exhibit A.
"Agreement" means this Amended and Restated Agreement of Limited
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Partnership of the Partnership, as it may be amended, supplemented or
restated from time to time.
"Articles of Incorporation" means the Articles of Incorporation of
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the Company filed in the State of Maryland on September 13, 1994, as amended
and restated from time to time.
"Assignee" means a Person to whom one or more Partnership Units have
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been transferred in a manner permitted under this Agreement, but who has not
become a Substituted Limited Partner, and who has the rights set forth in
Section 11.5.
"Available Cash" means, with respect to any period for which such
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calculation is being made,
(i) the sum of:
(a) the Partnership's Net Income or Net Loss (as the case may be)
for such period (without regard to adjustments resulting from
allocations described in Sections 1.A through 1.E of Exhibit C);
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(b) Depreciation and all other noncash charges deducted in
determining Net Income or Net Loss for such period;
(c) the amount of any reduction in the reserves of the Partnership
referred to in clause (ii)(f) below (including, without limitation,
reductions resulting because the General Partner determines such amounts
are no longer necessary);
(d) the excess of proceeds from the sale, exchange, disposition,
or refinancing of Partnership property for such period over the gain
recognized from such sale, exchange, disposition, or refinancing during
such period (excluding Terminating Capital Transactions); and
(e) all other cash received by the Partnership for such period
that was not included in determining Net Income or Net Loss for such
period; less
(ii) the sum of:
(a) all principal debt payments made by the Partnership during
such period;
(b) capital expenditures made by the Partnership during such
period;
(c) investments made by the Partnership during such period in any
entity (including loans made thereto) to the extent that such investments
are not otherwise described in clause (ii)(a) or (ii)(b);
(d) all other expenditures and payments not deducted in
determining Net Income or Net Loss for such period;
(e) any amount included in determining Net Income or Net Loss for
such period that was not received by the Partnership during such period;
(f) the amount of any increase in reserves during such period
which the General Partner determines to be necessary or appropriate in
its sole and absolute discretion; and
(g) the amount of any working capital accounts and other cash or
similar balances which the General Partner determines to be necessary or
appropriate, in its sole and absolute discretion.
Notwithstanding the foregoing, Available Cash shall not include any cash
received or reductions in reserves, or take into account any disbursements
made or reserves established, after commencement of the dissolution and
liquidation of the Partnership.
"Book-Tax Disparities" means, with respect to any item of Contributed
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Property or Adjusted Property, as of the date of any determination, the
difference between the Carrying Value of such Contributed Property or
Adjusted Property and the adjusted basis thereof for federal income tax
purposes as of such date. A Partner's share of the Partnership's Book-Tax
Disparities in all of its Contributed Property and Adjusted Property will be
reflected by the difference between such Partner's Capital Account balance as
maintained pursuant to Exhibit B and the hypothetical balance of such
Partner's Capital Account computed as if it had been maintained strictly in
accordance with federal income tax accounting principles.
"Business Day" means any day except a Saturday, Sunday or other day
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on which commercial banks in New York, New York are authorized or required by
law to close.
"Capital Account" means the Capital Account maintained for a Partner
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pursuant to Exhibit B hereof.
"Capital Contribution" means, with respect to any Partner, any cash,
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cash equivalents or the Agreed Value of Contributed Property which such
Partner contributes or is deemed to contribute to the Partnership pursuant to
Section 4.1, 4.2, or 4.3 hereof.
"Carrying Value" means (i) with respect to a Contributed Property or
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Adjusted Property, the 704(c) Value of such property, reduced (but not below
zero) by all Depreciation with respect to such property charged to the
Partners' Capital Accounts following the contribution of or adjustment with
respect to such property; and (ii) with respect to any other Partnership
property, the adjusted basis of such property for federal income tax
purposes, all as of the time of determination. The Carrying Value of any
property shall be adjusted from time to time in accordance with Exhibit B
hereof, and to reflect changes, additions or other adjustments to the
Carrying Value for dispositions and acquisitions of Partnership properties,
as deemed appropriate by the General Partner.
"Cash Amount" means an amount of cash per Partnership Unit equal to
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the Value on the Valuation Date of the REIT Shares Amount.
"Certificate" means the Certificate of Limited Partnership of the
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Partnership as filed in the office of the Delaware Secretary of State on
September 28, 1994, as amended from time to time in accordance with the terms
hereof and the Act.
"Code" means the Internal Revenue Code of 1986, as amended and in
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effect from time to time, as interpreted by the 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.
"Consent" means the consent or approval of a proposed action by a
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Partner given in accordance with Section 14.2 hereof.
"Contributed Property" means each property or other asset, in such
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form as may be permitted by the Act (but excluding cash), contributed or
deemed contributed to the Partnership (including deemed contributions to the
Partnership on termination and reconstitution thereof pursuant to Section 708
of the Code). Once the Carrying Value of a Contributed Property is adjusted
pursuant to Exhibit B hereof, such property shall no
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longer constitute a Contributed Property for purposes of Exhibit B hereof,
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but shall be deemed an Adjusted Property for such purposes.
"Conversion Factor" means 1.0, subject to adjustment as
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follows: (i) in case the General Partner shall (A) pay or make a dividend or
other distribution on the outstanding REIT Shares in REIT Shares, (B)
subdivide or reclassify the outstanding REIT Shares into a greater number of
REIT Shares, or (C) combine or reclassify the outstanding REIT Shares into a
smaller number of REIT Shares, the Conversion Factor in effect at the opening
of business on the day following the date fixed for the determination of
shareholders entitled to receive such dividend or other distribution or
subject to such subdivision, combination or reclassification shall be
proportionately adjusted so that a holder of Partnership Units shall be
entitled to receive, upon exchange thereof, the number of REIT Shares which
the holder would have owned at the opening of business on the day following
the date fixed for such determination had such Units been exchanged
immediately prior to such determination; (ii) in case the Partnership shall
subdivide or reclassify the outstanding Partnership Units into a greater
number of Partnership Units, the Conversion Factor in effect at the opening
of business on the day following the date fixed for the determination of
Partnership Unit holders subject to such subdivision or reclassification
shall be proportionately adjusted so that a holder of Partnership Units shall
be entitled to receive, upon exchange thereof, the number of REIT Shares
which the holder would have owned at the opening of business on the day
following the date fixed for such determination had such Partnership Units
been exchanged immediately prior to such determination; (iii) in case the
General Partner (A) shall issue rights or warrants to all holders of REIT
Shares entitling them to subscribe for or purchase REIT Shares at a price per
share less than the daily market price per REIT Share (determined as
specified under the definition of "Value" set forth in this Article I) on the
date fixed for the determination of shareholders entitled to receive such
rights or warrants, (B) shall not issue similar rights or warrants to all
holders of Partnership Units entitling them to subscribe for or purchase REIT
Shares or Partnership Units at a comparable price (determined, in the case of
Partnership Units, by reference to the Conversion Factor), and (C) cannot
issue such rights or warrants to a Redeeming Partner as otherwise required by
the definition of "REIT Shares Amount" set forth in this Article I, then the
Conversion Factor in effect at the opening of business on the day following
the date fixed for such determination shall be increased by multiplying such
Conversion Factor by a fraction of which the numerator shall be the number of
REIT Shares outstanding at the close of business on the date fixed for such
determination plus the number of REIT Shares so offered for subscription or
purchase, and of which the denominator shall be the number of REIT Shares
outstanding at the close of business on the date fixed for such determination
plus the number of REIT Shares which the aggregate offering price of the
total number of REIT Shares so offered for subscription would purchase at
such daily market price per share, such increase of the Conversion Factor to
become effective immediately after the opening of business on the day
following the date fixed for such determination; and (iv) in case the General
Partner shall, by dividend or otherwise, distribute to all holders of its
common stock, (A) shares of capital stock of any class other than its
common stock, (B) evidence of its indebtedness or (C) assets (excluding any
rights or warrants referred to in clause (iii) above, any cash dividend or
distribution lawfully paid under the laws of the state of incorporation of
the General Partner, and any dividend or distribution referred to in clause
(i) above) and shall not cause a corresponding distribution to be made to all
holders of Partnership Units, the Conversion Factor shall be adjusted so that
the same shall equal the ratio determined by multiplying the Conversion
Factor in effect immediately prior to the close of business on the date fixed
for the determination of shareholders entitled to receive such distribution
by a fraction of which the numerator shall be the daily market price per REIT
Share on the date fixed for such determination, and of which the denominator
shall be such daily market price per REIT Share less the fair market value
(as determined by the Board of Directors of the General Partner, whose
determination shall be conclusive and described in a Board resolution
certified by the Secretary of the General Partner and delivered to the
holders of the Partnership Units) of the portion of the shares of capital
stock or evidences of indebtedness or assets so distributed applicable to one
REIT Share, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination
of shareholders entitled to receive such distribution.
"Depreciation" means, for each taxable year, an amount equal to the
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federal income tax depreciation, amortization, or other cost recovery
deduction allowable with respect to an asset for such year, except that if
the Carrying Value of an asset differs from its adjusted basis for federal
income tax purposes at the beginning of such year or other period,
Depreciation shall be an amount which bears the same ratio to such beginning
Carrying Value as the federal income tax depreciation, amortization, or other
cost recovery deduction for such year bears to such beginning adjusted tax
basis; provided, however, that if the federal income tax depreciation,
amortization, or other cost recovery deduction for such year is zero,
Depreciation shall be determined with reference to such beginning Carrying
Value using any reasonable method selected by the General Partner.
"Effective Date" means the date of closing of the initial public
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offering of REIT Shares pursuant to that certain underwriting agreements
among the Company and the underwriters named therein.
"Financing Partnership" means Reckson FS Limited Partnership, a
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Delaware limited partnership formed pursuant to an agreement of limited
partnership between the Partnership and the Financing Subsidiary, and any
successor thereto.
"Financing Subsidiary" means Reckson FS, Inc., a Delaware
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corporation, and any successor thereto.
"General Partner" means the Company, in its capacity as the general
---------------
partner of the Partnership, or any Person who becomes an additional or a
successor general partner of the Partnership.
"General Partner Interest" means a Partnership Interest held by the
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General Partner, in its capacity as general partner of the Partnership. A
General Partner Interest may be expressed as a number of Partnership Units.
"IRS" means the Internal Revenue Service, which administers the
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internal revenue laws of the United States.
"Immediate Family" means, with respect to any natural Person, such
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natural Person's spouse and such natural Person's natural or adoptive
parents, descendants, nephews, nieces, brothers, and sisters.
"Incapacity" or "Incapacitated" means, (i) as to any individual
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Partner, death, total physical disability or entry by a court of competent
jurisdiction adjudicating him incompetent to manage his Person or his estate;
(ii) as to any corporation which is a Partner, the filing of a certificate of
dissolution, or its equivalent, for the corporation or the revocation of its
charter; (iii) as to any partnership or limited liability company which is a
Partner, the dissolution and commencement of winding up of the partnership;
(iv) as to any estate which is a Partner, the distribution by the fiduciary
of the estate's entire interest in the Partnership; (v) as to any trustee of
a trust which is a Partner, the termination of the trust (but not the
substitution of a new trustee); or (vi) as to any Partner, the bankruptcy of
such Partner. For purposes of this definition, bankruptcy of a Partner shall
be deemed to have occurred when (a) the Partner commences a voluntary
proceeding seeking liquidation, reorganization or other relief under any
bankruptcy, insolvency or other similar law now or hereafter in effect; (b)
the Partner is adjudged as bankrupt or insolvent, or a final and
nonappealable order for relief under any bankruptcy, insolvency or similar
law now or hereafter in effect has been entered against the Partner; (c) the
Partner executes and delivers a general assignment for the benefit of the
Partner's creditors; (d) the Partner files an answer or other pleading
admitting or failing to contest the material allegations of a petition filed
against the Partner in any proceeding of the nature described in clause (b)
above; (e) the Partner seeks, consents to or acquiesces in the appointment of
a trustee, receiver or liquidator for the Partner or for all or any
substantial part of the Partner's properties; (f) any proceeding seeking
liquidation, reorganization or other relief of or against such Partner under
any bankruptcy, insolvency or other similar law now or hereafter in effect has
not been dismissed within one hundred twenty (120) days after the
commencement thereof; (g) the appointment without the Partner's consent or
acquiescence of a trustee, receiver or liquidator has not been vacated or
stayed within ninety (90) days of such appointment; or (h) an appointment
referred to in clause (g) which has been stayed is not vacated within ninety
(90) days after the expiration of any such stay.
"Indemnitee" means (i) any Person made a party to a proceeding by
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reason of (A) his status as the General Partner, or as a director, officer,
stockholder, partner, member, employee, representative or agent of the
General Partner or as an officer, employee, representative or agent of the
Partnership, or (B) his or its liabilities, pursuant to a loan guarantee or
otherwise, for any indebtedness of the Partnership or any Subsidiary of the
Partnership (including, without limitation, any indebtedness which the
Partnership or any Subsidiary of the Partnership has assumed or taken assets
subject to); and (ii) such other Persons (including Affiliates of the General
Partner or the Partnership) as the General Partner may designate from time to
time (whether before or after the event giving rise to potential liability),
in its sole and absolute discretion.
"Limited Partner" means the Company and any other Person named as a
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limited partner of the Partnership in Exhibit A attached hereto, as such
Exhibit may be amended from time to time, or any Substituted Limited Partner
or Additional Limited Partner, in such Person's capacity as a limited partner
of the Partnership. For purposes of this Agreement and the Act, the Limited
Partners shall constitute a single class or group of limited partners.
"Limited Partner Interest" means a Partnership Interest of a Limited
------------------------
Partner in the Partnership representing a fractional part of the Partnership
Interests of all Partners and includes any and all benefits to which the
holder of such a Partnership Interest may be entitled, as provided in this
Agreement, together with all obligations of such Person to comply with the
terms and provisions of this Agreement. A Limited Partner Interest may be
expressed as a number of Partnership Units.
"Liquidating Event" has the meaning set forth in Section 13.1.
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"Liquidator" has the meaning set forth in Section 13.2.
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"Net Income" means, for any taxable period, the excess, if any, of
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the Partnership's items of income and gain for such
taxable period over the Partnership's items of loss and deduction for such
taxable period. The items included in the calculation of Net Income shall be
determined in accordance with federal income tax accounting principles,
subject to the specific adjustments provided for in Exhibit B.
"Net Loss" means, for any taxable period, the excess, if any, of the
--------
Partnership's items of loss and deduction for such taxable period over the
Partnership's items of income and gain for such taxable period. The items
included in the calculation of Net Loss shall be determined in accordance
with federal income tax accounting principles, subject to the specific
adjustments provided for in Exhibit B.
"Nonrecourse Built-in Gain" means, with respect to any Contributed
-------------------------
Properties or Adjusted Properties that are subject to a mortgage or negative
pledge securing a Nonrecourse Liability, the amount of any taxable gain that
would be allocated to the Partners pursuant to Section 2.B(1)(a),
2.B(2)(a)(1) and 2.B(2)(a)(2) (to the extent reflecting Section 2.B(1)(a)) of
Exhibit C if such properties were disposed of in a taxable transaction in
full satisfaction of such liabilities and for no other consideration.
"Nonrecourse Deductions" has the meaning set forth in Regulations
----------------------
Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions for a
Partnership taxable year shall be determined in accordance with the rules of
Regulations Section 1.704-2(c).
"Nonrecourse Liability" has the meaning set forth in Regulations
---------------------
Section 1.752-1(a)(2).
"Notice of Redemption" means the Notice of Redemption substantially
--------------------
in the form of Exhibit D to this Agreement.
"Partner" means a General Partner or a Limited Partner, and
-------
"Partners" means the General Partner and the Limited Partners
--------
collectively.
"Partner Minimum Gain" means an amount, with respect to each Partner
--------------------
Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
"Partner Nonrecourse Debt" has the meaning set forth in Regulations
------------------------
Section 1.704-2(b)(4).
"Partner Nonrecourse Deductions" has the meaning set forth in
------------------------------
Regulations Section 1.704-2(i)(2), and the amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt for a
Partnership taxable year shall be determined in accordance with the rules of
Regulations Section 1.704-2(i)(2).
"Partnership" means the limited partnership heretofore formed and
-----------
continued under the Act and pursuant to this Agreement, and any successor
thereto.
"Partnership Interest" means an ownership interest in the Partnership
--------------------
representing a Capital Contribution by either a Limited Partner or the
General Partner and includes any and all benefits to which the holder of such
a Partnership Interest may be entitled as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement. A Partnership Interest may be expressed as a
number of Partnership Units.
"Partnership Minimum Gain" has the meaning set forth in Regulations
------------------------
Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain, as well as
any net increase or decrease in a Partnership Minimum Gain, for a Partnership
taxable year shall be determined in accordance with the rules of Regulations
Section 1.704-2(d).
"Partnership Record Date" means the record date established by the
-----------------------
General Partner for the distribution of Available Cash pursuant to Section
5.1 hereof, which record date shall be the same as the record date
established by the Company for a distribution to its shareholders of some of
all of its portion of such distribution.
"Partnership Unit" means a fractional, undivided share of the
----------------
Partnership Interests of all Partners issued pursuant to Sections 4.1, 4.2
and 4.3. The number of Partnership Units outstanding and the Percentage
Interest in the Partnership represented by such Units are set forth in
Exhibit A attached hereto, as such Exhibit may be amended from time to time.
The ownership of Partnership Units shall be evidenced by such form of
certificate for units as the General Partner adopts from time to time unless
the General Partner determines that the Partnership Units shall be
uncertificated securities.
"Partnership Year" means the fiscal year of the Partnership, which
----------------
shall be the calendar year.
"Percentage Interest" means, as to a Partner, its interest in the
-------------------
Partnership as determined by dividing the Partnership Units owned by such
Partner by the total number of Partnership Units then outstanding and as
specified in Exhibit A attached hereto, as such Exhibit may be amended from
time to time.
"Person" means an individual or a corporation, partnership, limited
------
liability company, trust, unincorporated organization, association or other
entity.
"Recapture Income" means any gain recognized by the Partnership upon
----------------
the disposition of any property or asset of the Partnership, which gain is
characterized as ordinary income because it represents the recapture of
deductions previously taken with respect to such property or asset.
"Redeeming Partner" has the meaning set forth in Section 8.6 hereof.
-----------------
"Redemption Right" shall have the meaning set forth in Section 8.6
----------------
hereof.
"Regulations" means the Income Tax Regulations promulgated under the
-----------
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"REIT" means a real estate investment trust under Section 856 of the
----
Code.
"REIT Share" shall mean a share of common stock of the Company, par
----------
value $.01 per share.
"REIT Shares Amount" shall mean a number of REIT Shares equal to the
------------------
product of the number of Partnership Units offered for redemption by a
Redeeming Partner, multiplied by the Conversion Factor, provided that in the
event the Company issues to all holders of REIT Shares rights, options,
warrants or convertible or exchangeable securities entitling the shareholders
to subscribe for or purchase REIT Shares, or any other securities or property
(collectively, the "rights"), and the Company can issue such rights to the
Redeeming Partner, then the REIT Shares Amount shall also include such rights
that a holder of that number of REIT Shares would be entitled to receive.
"Residual Gain" or "Residual Loss" means any item of gain or loss, as
------------- -------------
the case may be, of the Partnership recognized for federal income tax
purposes resulting from a sale, exchange or other disposition of Contributed
Property or Adjusted Property, to the extent such item of gain or loss is not
allocated pursuant to Section 2.B.1(a) or 2.B.2(a) of Exhibit C to eliminate
Book-Tax Disparities.
"704(c) Value" of any Contributed Property means the fair market
------------
value of such property or other consideration at the time of contribution, as
determined by the General Partner using such reasonable method of valuation as
it may adopt; provided, however, that the 704(c) Value of any property deemed
contributed to the Partnership for federal income tax purposes upon termination
and reconstitution thereof pursuant to Section 708 of the Code shall be deter-
mined in accordance with Exhibit B hereof. Subject to Exhibit B hereof, the
General Partner shall, in its sole and absolute discretion, use such method as
it deems reasonable and appropriate to allocate the aggregate of the 704(c)
Values of Contributed Properties in a single or integrated transaction among
the separate properties on a basis proportional to their respective fair
market values.
"Specified Redemption Date" means the tenth (10th) Business Day after
-------------------------
receipt by the Company of a Notice of Redemption; provided that no Specified
Redemption Date shall occur before two (2) years from the date of this
Agreement, provided further that if the Company combines its outstanding REIT
Shares, no Specified Redemption Date shall occur after the record date of
such combination of REIT Shares and prior to the effective date of such
combination.
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership, limited liability company or other entity of which a majority of
(i) the voting power of the voting equity securities; or (ii) the outstanding
equity interests, is owed, directly or indirectly, by such Person.
"Substituted Limited Partner" means a Person who is admitted as a
---------------------------
Limited Partner to the Partnership pursuant to Section 11.4.
"Terminating Capital Transaction" means any sale or other disposition
-------------------------------
of all or substantially all of the assets of the Partnership or a related
series of transactions that, taken together, result in the sale or other
disposition of all or substantially all of the assets of the Partnership but
shall not include any contribution of assets to the Financing Partnership.
"Unrealized Gain" attributable to any item of Partnership property
---------------
means, as of any date of determination, the excess, if any, of (i) the fair
market value of such property (as determined under Exhibit B hereof) as of
such date; over (ii) the Carrying Value of such property (prior to any
adjustment to be made pursuant to Exhibit B hereof) as of such date.
"Unrealized Loss" attributable to any item of Partnership property
---------------
means, as of any date of determination, the excess, if any, of (i) the
Carrying Value of such property (prior to any adjustment to be made pursuant
to Exhibit B hereof) as of such date; over (ii) the fair market value of such
property (as determined under Exhibit B hereof) as of such date.
"Valuation Date" means the date of receipt by the General Partner of
--------------
a Notice of Redemption or, if such date is not a Business Day, the first
Business Day thereafter.
"Value" means, with respect to a REIT Share, the average of the daily
-----
market price (the "daily market price") for the ten (10) consecutive trading
days immediately preceding the Valuation Date. The daily market price for
each such trading day shall be: (i) if the REIT Shares are listed or admitted
to trading on any securities exchange or the NASDAQ-National Market System,
the closing price on such day, or if no such sale takes place on such day,
the average of the closing bid and asked prices on such day; (ii) if the REIT
Shares are not listed or admitted to trading on any securities exchange or
the NASDAQ-National Market System, the last reported sale price on such day
or, if no sale takes place on such day, the average of the closing bid and
asked prices on such day, as reported by a reliable quotation source
designated by the General Partner; or (iii) if the REIT Shares are not listed
or admitted to trading on any securities exchange or the NASDAQ-National
Market System and no such last reported sale price or closing bid and asked
prices are available, the average of the reported high bid and low asked
prices on such day, as reported by a reliable quotation source designated by
the General Partner, or if there shall be no bid and asked prices on such
day, the average of the high bid and low asked prices, as so reported, on the
most recent day (not more than ten (10) days prior to the date in question)
for which prices have been so reported; provided that if there are no bid and
asked prices reported during the ten (10) days prior to the date in question,
the Value of the REIT Shares shall be determined by the General Partner
acting in good faith on the basis of such quotations and other information as
it considers, in its reasonable judgment, appropriate. In the event the REIT
Shares Amount includes rights that a holder of REIT Shares would be entitled
to receive, then the Value of such rights shall be determined by the General
Partner acting in good faith on the basis of such quotations and other
information as it considers, in its reasonable judgment, appropriate.
ARTICLE 2
ORGANIZATIONAL MATTERS
Section 2.1. Continuation
------------
The Partners hereby continue the Partnership as a limited partnership
under and pursuant to the Act. Except as expressly provided herein to the
contrary, the rights and obligations of the Partners and the administration
and termination of the Partnership shall be governed by the Act. The
Partnership Interest of each Partner shall be personal property for all
purposes.
Section 2.2. Name
----
The name of the Partnership heretofore formed and continued hereby shall
be Reckson Operating Partnership, L.P. The Partnership's business may be
conducted under any other name or names deemed advisable by the General
Partner, including the name of the General Partner or any Affiliate thereof.
The words "Limited Partnership," "L.P.," "Ltd." or similar words or letters
shall be included in the Partnership's name where necessary for the purposes
of complying with the laws of any jurisdiction that so requires. The General
Partner in its sole and absolute discretion may change the name of the
Partnership at any time and from time to time and shall notify the Limited
Partners of such change in the next regular communication to the Limited
Partners.
Section 2.3. Registered Office and Agent: Principal Office
---------------------------------------------
The address of the registered office of the Partnership in the State of
Delaware and the name and address of the registered agent for service of
process on the Partnership in the State of Delaware is The Corporation Trust
Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇. The principal office of the Partnership shall be ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other place as the General Partner may from
time to time designate by notice to the Limited Partners. The Partnership may
maintain offices at such other place or places within or outside the State of
Delaware as the General Partner deems advisable.
Section 2.4. Power of Attorney
-----------------
A. Each Limited Partner and each Assignee hereby constitutes and
appoints the General Partner, any Liquidator, and authorized officers and
attorneys-in-fact of each, and each of those acting singly, in each case with
full power of substitution, as its true and lawful agent and
attorney-in-fact, with full power and authority in its name, place and stead
to:
(1) execute, swear to, acknowledge, deliver, file and record in
the appropriate public offices (a) all certificates, documents
and other instruments (including, without limitation, this
Agreement and the Certificate and all amendments or
restatements thereof) that the General Partner or the
Liquidator deems appropriate or necessary to form, qualify or
continue the existence or qualification of the Partnership as
a limited partnership (or a partnership in which the Limited
Partners have limited liability) in the State of Delaware and
in all other jurisdictions in which the Partnership may or
plans to conduct business or own property; (b) all instruments
that the General Partner deems appropriate or necessary to
reflect any amendment, change, modification or restatement of
this Agreement in accordance with its terms; (c) all
conveyances and other instruments or documents that the
General Partner or the Liquidator deems appropriate or
necessary to reflect the dissolution and liquidation of the
Partnership pursuant to the terms of this Agreement,
including, without limitation, a certificate of cancellation;
(d) all instruments relating to the admission, withdrawal,
removal or substitution of any Partner pursuant to, or other
events described in, Article 11, 12 or 13 hereof or the
Capital Contribution of any Partner; and (e) all certificates,
documents and other instruments relating to the determination
of the rights, preferences and privileges of Partnership
Interest; and
(2) execute, swear to, seal, acknowledge and file all ballots,
consents, approvals, waivers, certificates and other
instruments appropriate or necessary, in the sole and absolute
discretion of the General Partner or any Liquidator, to make,
evidence, give, confirm or ratify any vote, consent, approval,
agreement or other action which is made or given by the
Partners hereunder or is consistent with the terms of this
Agreement or appropriate or necessary, in the sole discretion
of the General Partner or any Liquidator, to effectuate the
terms or intent of this Agreement.
Nothing contained herein shall be construed as authorizing the General
Partner or any Liquidator to amend this Agreement except in accordance
with Article 14 hereof or as may be otherwise expressly provided for in
this Agreement.
B. The foregoing power of attorney is hereby declared to be irrevocable
and a power coupled with an interest, in recognition of the fact that each of
the Partners will be relying upon the power of the General Partner and any
Liquidator to act as contemplated by this Agreement in any filing or other
action by it on behalf of the Partnership, and it shall survive and not be
affected by the subsequent Incapacity of any Limited Partner or Assignee and
the transfer of all or any portion of such Limited Partner's or Assignee's
Partnership Units and shall extend to such Limited Partner's or Assignee's
heirs, successors, assigns and personal representatives. Each such Limited
Partner or Assignee hereby agrees to be bound by any representation made by
the General Partner or any Liquidator, acting in good faith pursuant to such
power of attorney, and each such Limited Partner or Assignee hereby waives
any and all defenses which may be available to contest, negate or disaffirm
the action of the General Partner or any Liquidator, taken in good faith
under such power of attorney. Each Limited Partner or Assignee shall execute
and deliver to the General Partner or the Liquidator, within fifteen (15)
days after receipt of the General Partner's or Liquidator's request therefor,
such further designation, powers of attorney and other instruments as the
General Partner or the Liquidator, as the case may be, deems necessary to
effectuate this Agreement and the purposes of the Partnership.
Section 2.5. Term
----
The term of the Partnership commenced on the date that the Certificate
was filed with the Secretary of State of the State of Delaware and shall
continue until December 31, 2095, unless the Partnership is dissolved sooner
pursuant to the provisions of Article 13 or as otherwise provided by law.
Section 2.6. Admission of Limited Partners
-----------------------------
On the date hereof, and upon the execution of this Agreement or a
counterpart of this Agreement, each of the Persons identified as a limited
partner of the Partnership on Exhibit A to this Agreement (other than ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ who has already been admitted as a limited partner of the
Partnership) is hereby admitted to the Partnership as a limited partner of
the Partnership.
ARTICLE 3
PURPOSE
Section 3.1. Purpose and Business
--------------------
The purpose and nature of the business to be conducted by the
Partnership is (i) to conduct any business that may be lawfully conducted by
a limited partnership formed pursuant to the Act; provided, however,
-------- -------
that such business shall be limited to and conducted in such a manner as to
permit the Company at all times to be classified as a REIT, unless the
Company ceases to qualify as a REIT for reasons other than the conduct of the
business of the Partnership; (ii) to enter into any partnership, joint
venture or other similar arrangement to engage in any of the foregoing or to
own interests in any entity engaged in any of the foregoing; and (iii) to do
anything necessary, convenient or incidental to the foregoing. In connection
with the foregoing, and without limiting the Company's right, in its sole
discretion, to cease qualifying as a REIT, the Partners acknowledge that the
Company's current status as a REIT inures to the benefit of all of the
Partners and not solely the General Partner or its Affiliates.
Section 3.2. Powers
------
The Partnership is empowered to do any and all acts and things
necessary, appropriate, proper, advisable, incidental to or convenient for
the furtherance and accomplishment of the purposes and business described
herein and for the protection and benefit of the Partnership, and shall have,
without limitation, any and all of the powers that may be exercised on behalf
of the Partnership by the General Partner pursuant to this Agreement;
provided, however, that the Partnership shall not take, or
-------- --------
refrain from taking, any action which, in the judgment of the General
Partner, in its sole and absolute discretion, (i) could adversely affect the
ability of the Company to continue to qualify as a REIT; (ii) could subject
the Company to any additional taxes under Section 857 or Section 4981 of the
Code; or (iii) could violate any law or regulation of any governmental body
or agency having jurisdiction over the Company or its securities, unless such
action (or inaction) shall have been specifically consented to by the General
Partner in writing.
ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.1. Capital Contributions of the Partners
-------------------------------------
At the time of the execution of this Agreement, the Partners shall make
the Capital Contributions set forth in Exhibit A to this Agreement, which may
be adjusted upon final determination of the 704(c) Values of the assets
contributed to Partnership. At the General Partner's direction, certain
Capital Contributions may be made by way of transfers to such subsidiaries of
the Partnership as the General Partner may identify. To the extent the
Partnership acquires any property by the merger of any other Person into the
Partnership, Persons who receive Partnership Interests in exchange for their
interests in the Person merging into the Partnership shall become Partners
and shall be deemed to have made Capital Contributions as provided in the
applicable merger agreement and as set forth in Exhibit A, as amended to
reflect such deemed Capital Contributions. In consideration for making the
Capital Contributions set forth in Exhibit A to this Agreement, each of the
Partners shall receive from the Partnership and shall own Partnership Units
in the amounts set forth for such Partner in Exhibit A and shall have a
Percentage Interest in the Partnership as set forth in Exhibit A, which
Percentage Interest shall be adjusted in Exhibit A from time to time by the
General Partner to the extent necessary to reflect accurately redemptions,
additional Capital Contributions, the issuance of additional Partnership
Units (pursuant to any merger or otherwise), or similar events having an
effect on any Partner's Percentage Interest. The number of Partnership Units
held by the General Partner, in its capacity as general partner (equal to one
percent (1%) of all outstanding Partnership Units from time to time) shall be
deemed to be the General Partner Interest. Except as provided in Sections 4.2
and 10.5, the Partners shall have no obligation to make any additional
Capital Contributions or loans to the Partnership.
Section 4.2. Issuances of Additional Partnership Interests
---------------------------------------------
A. The General Partner is hereby authorized, without the need for any
vote or approval of any Partner or any other Person who may hold Partnership
Units or Partnership Interests, to cause the Partnership from time to time to
issue to the Partners (including the General Partner) or other Persons
additional Partnership Units or other Partnership Interests in one or more
classes, or one or more series of any of such classes, or otherwise with such
designations, preferences, redemption and conversion rights and relative,
participating, optional or other special rights, powers and duties, including
rights, powers and duties senior to Limited Partner Interests, all as shall
be determined by the General Partner in its sole and absolute discretion
subject to Delaware law, including, without limitation, (i) the allocations
of items of Partnership income, gain, loss, deduction and credit to each such
class or series of Partnership Interests; (ii) the right of each such class
or series of Partnership Interests to share in Partnership distributions; and
(iii) the rights of each such class or series of Partnership Interests upon
dissolution and liquidation of the Partnership; provided that no such
additional Partnership Units or other Partnership Interests shall be issued
to the Company, as the General Partner or a Limited Partner, unless either
(a)(1) the additional Partnership Interests are issued in connection with an
issuance of REIT Shares or other shares by the Company, which shares have
designations, preferences and other rights such that the economic interests
attributable to such shares are substantially similar to the designations,
preferences and other rights of the additional Partnership Interests issued
to the Company in accordance with this Section 4.2.A, and (2) the Company
shall make a Capital Contribution to the Partnership in an amount equal to
the proceeds raised in connection with such issuance or (b) the additional
Partnership Interests are issued to all Partners in proportion to their
respective Percentage Interests. In addition, the Company may acquire Units
from other Partners pursuant to this Agreement.
B. After the initial public offering of REIT Shares, the Company shall
not issue any additional REIT Shares (other than REIT Shares issued pursuant
to Section 8.6), or rights, options, warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase REIT Shares
(collectively "New Securities") other than to all holders of
--------------
REIT Shares unless (i) the General Partner shall cause the Partnership to
issue to the Company, Partnership Interests or rights, options, warrants or
convertible or exchangeable securities of the Partnership having
designations, preferences and other rights, all such that the economic
interests (when combined with any additional economic interests in the
Financing Partnership issued to the Financing Subsidiary contemporaneously)
are substantially similar to those of the New Securities; and (ii) the
Company contributes to the Partnership (and to the Financing Subsidiary for
contribution to the Financing Partnership) the proceeds from the issuance of
such New Securities and from the exercise of rights contained in such New
Securities. Without limiting the foregoing, the Company is expressly
authorized to issue New Securities for less than fair market value, and the
General Partner is expressly authorized to cause the Partnership to issue to
the Company corresponding Partnership Interests, so long as (x) the General
Partner concludes in good faith that such issuance is in the interests of the
Company and the Partnership (for example, and not by way of limitation, the
issuance of REIT Shares and corresponding Units pursuant to an employee stock
purchase plan providing for employee purchases of REIT Shares at a discount
from fair market value or employee stock options that have an exercise price
that is less than the fair market value of the REIT Shares, either at the
time of issuance or at the time of exercise); and (y) the Company contributes
all proceeds from such issuance and exercise to the Partnership (and to the
Financing Subsidiary for contribution to the Financing Partnership).
Section 4.3. Contribution of Proceeds of Issuance of REIT
--------------------------------------------
Shares
------
In connection with the initial public offering of REIT Shares by the
Company and any other issuance of REIT Shares or New Securities pursuant to
Section 4.2, the Company shall contribute to the Partnership (and to the
Financing Subsidiary for contribution to the Financing Partnership) any
proceeds (or a portion thereof) raised in connection with such issuance;
provided that if the proceeds actually received by the Company
-------- ----
are less than the gross proceeds of such issuance as a result of any
underwriter's discount or other expenses paid or incurred in connection with
such issuance, then the Company shall be deemed to have made a Capital
Contribution to the Partnership (and a capital contribution to the Financing
Subsidiary for contribution to the Financing Partnership) in the amount equal
to the sum of the net proceeds of such issuance plus the amount of such
underwriter's discount and other expenses paid by the Company (which discount
and expense shall be treated as an expense for the benefit of the Partnership
in accordance with Section 7.4). In the case of employee purchases of New
Securities at a discount from fair market value, the amount of such discount
representing compensation to the employee, as determined by the General
Partner, shall be treated as an expense of the issuance of such New
Securities.
Section 4.4. Preemptive Rights
-----------------
No Person shall have any preemptive, preferential or other similar right
with respect to (i) additional Capital Contributions or loans to the
Partnership; or (ii) issuance or sale of any Partnership Units or other
Partnership Interests.
ARTICLE 5
DISTRIBUTIONS
Section 5.1. Requirement and Characterization of
-----------------------------------
Distributions
-------------
The General Partner shall distribute at least quarterly an amount equal
to 100% of Available Cash generated by the Partnership during such quarter or
shorter period to the Partners who are Partners on the Partnership Record
Date with respect to such quarter or shorter period in accordance with their
respective Percentage Interests on such Partnership Record Date; provided
that in no event may a Partner receive a distribution of Available Cash with
respect to a Partnership Unit if such Partner is entitled to receive a
distribution out of such Available Cash with respect to a REIT Share for which
such Partnership Unit has been exchanged and such distribution shall be made
to the Company. The General Partner shall take such reasonable efforts, as
determined by it in its sole and absolute discretion and consistent with the
Company's qualification as a REIT, to distribute Available Cash to the Limited
Partners so as to preclude any such distribution or portion thereof from being
treated as part of a sale of property to the Partnership by a Limited Partner
under Section 707 of the Code or the Regulations thereunder; provided that the
General Partner and the Partnership shall not have liability to a Limited
Partner under any circumstances as a result of any distribution to a Limited
Partner being so treated.
Section 5.2. Amounts Withheld
----------------
All amounts withheld pursuant to the Code or any provisions of any state
or local tax law and Section 10.5 hereof with respect to any allocation,
payment or distribution to the Partners or Assignees shall be treated as
amounts distributed to the Partners or Assignees pursuant to Section 5.1 for
all purposes under this Agreement.
Section 5.3. Distributions Upon Liquidation
------------------------------
Proceeds from a Terminating Capital Transaction and any other cash
received or reductions in reserves made after commencement of the liquidation
of the Partnership shall be distributed to the Partners in accordance with
Section 13.2.
Section 5.4. Restricted Distributions
------------------------
Notwithstanding any provision to the contrary contained in this
Agreement, the Partnership, and the General Partner on behalf of the
Partnership, shall not make a distribution to any Partner on account of its
interest in the Partnership if such distribution would violate Section 17-607
of the Act or other applicable law.
ARTICLE 6
ALLOCATIONS
Section 6.1. Allocations For Capital Account Purposes
----------------------------------------
For purposes of maintaining the Capital Accounts and in determining the
rights of the Partners among themselves, the Partnership's items of income,
gain, loss and deduction (computed in accordance with Exhibit B hereof) shall
be allocated among the Partners in each taxable year (or portion thereof) as
provided herein below.
A. After giving effect to the special allocations set forth in Section
1 of Exhibit C attached hereto, Net Income shall be allocated (i) first, to
the General Partner to the extent that Net Losses previously allocated to the
General Partner pursuant to the last sentence of Section 6.1.B exceed Net
Income previously allocated to the General Partner pursuant to this clause
(i) of Section 6.1.A; and (ii) thereafter, Net Income shall be allocated to
the Partners in accordance with their respective Percentage Interests.
B. After giving effect to the special allocations set forth in Section
1 of Exhibit C attached hereto, Net Losses shall be allocated to the Partners
in accordance with their respective Percentage Interests; provided that Net
Losses shall not be allocated to any Limited Partner pursuant to this Section
6.1.B to the extent that such allocation would cause such Limited Partner to
have an Adjusted Capital Account Deficit at the end of such taxable year (or
increase any existing Adjusted Capital Account Deficit). All Net Losses in
excess of the limitations set forth in this Section 6.1.B shall be allocated
to the General Partner.
C. For purposes of Regulations Section 1.752-3(a), the Partners agree
that Nonrecourse Liabilities of the Partnership in excess of the sum of (i)
the amount of Partnership Minimum Gain and (ii) the total amount of
Nonrecourse Built-in Gain shall be allocated among the Partners in accordance
with their respective Percentage Interests.
D. Any gain allocated to the Partners upon the sale or other taxable
disposition of any Partnership asset shall, to the extent possible, after
taking into account other required allocations of gain pursuant to Exhibit C,
be characterized as Recapture Income in the same proportions and to the same
extent as such Partners have been allocated any deductions directly or
indirectly giving rise to the treatment of such gains as Recapture Income.
ARTICLE 7
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1. Management
----------
A. Except as otherwise expressly provided in this Agreement, all
management powers over the business and affairs of the Partnership are and
shall be exclusively vested in the General Partner, and no Limited Partner
shall have any right to participate in or exercise control or management
power over the business and affairs of the Partnership. The General Partner
may not be removed by the Limited Partners with or without cause. In addition
to the powers now or hereafter granted a general partner of a limited partner-
ship under applicable law or which are granted to the General Partner under any
other provision of this Agreement, the General Partner, subject to Section
7.3 hereof, shall have full power and authority to do all things deemed
necessary, desirable or convenient by it to conduct the business of the
Partnership, to exercise all powers set forth in Section 3.2 hereof and to
effectuate the purposes set forth in Section 3.1 hereof, including, without
limitation:
(1) the making of any expenditures, the lending or borrowing of
money (including, without limitation, making prepayments on
loans and borrowing money to permit the Partnership to make
distributions to its Partners in such amounts as will permit
the Company (so long as the Company qualifies as a REIT) to
avoid the payment of any federal income tax (including, for
this purpose, any excise tax pursuant to Section 4981 of the
Code) and to make distributions to its stockholders in amounts
sufficient to permit the Company to maintain REIT status), the
assumption or guarantee of, or other contracting for,
indebtedness and other liabilities, the issuance of evidence
of indebtedness (including the securing of the same by deed,
mortgage, deed of trust or other lien or encumbrance on the
Partnership's assets) and the incurring of any obligations it
deems necessary for the conduct of the activities of the
Partnership;
(2) the making of tax, regulatory and other filings, or rendering
of periodic or other reports to governmental or other agencies
having jurisdiction over the business or assets of the
Partnership;
(3) the acquisition, disposition, mortgage, pledge, encumbrance,
hypothecation or exchange of any assets of the Partnership
(including the exercise or grant of any conversion, option,
privilege, or subscription right or other right available in
connection with any assets at any time held by the
Partnership) or the merger or other combination of the
Partnership with or into another entity (all of the foregoing
subject to any prior approval only to the extent required by
Section 7.3 hereof);
(4) the use of the assets of the Partnership (including, without
limitation, cash on hand) for any purpose consistent with the
terms of this Agreement and on any terms it sees fit,
including, without limitation, the financing of the conduct of
the operations of the Company, the Partnership or any of the
Partnership's Subsidiaries, the lending of funds to other
Persons (including, without limitation, the Subsidiaries of
the Partnership and/or the Company) and the repayment of
obligations of the Partnership and its Subsidiaries and any
other Person in which it has an equity investment, and the
making of capital contributions to its Subsidiaries;
(5) the management, operation, leasing, landscaping, repair,
alteration, demolition, disposition or improvement of any real
property or improvements owed by the Partnership or any
Subsidiary of the Partnership;
(6) the negotiation, execution, delivery and performance of any
contracts, conveyances or other instruments that the General
Partner considers useful or necessary or convenient to the
conduct of the Partnership's operations or the implementation
of the General Partner's powers under this Agreement,
including contracting with contractors, developers,
consultants, accountants, legal counsel, other professional
advisors and other agents and the payment of their expenses
and compensation out of the Partnership's assets;
(7) the distribution of Partnership cash or other Partnership
assets in accordance with this Agreement;
(8) holding, managing, investing and reinvesting cash and other
assets of the Partnership;
(9) the collection and receipt of revenues and income of the
Partnership;
(10) the establishment of one or more divisions of the Partnership,
the selection and dismissal of employees of the Partnership
(including, without limitation, employees who may be
designated as officers with titles such as "president," "vice
president," "secretary" and "treasurer" of the Partnership),
and agents, outside attorneys, accountants, consultants and
contractors of the Partnership, and the determination of their
compensation and other terms of employment or hiring;
(11) the maintenance of such insurance for the benefit of the
Partnership and the Partners as it deems necessary or
appropriate;
(12) the formation of, or acquisition of an interest in, and the
contribution of property to, any further limited or general
partnerships, limited liability companies, joint ventures or
other relationships that it deems desirable (including,
without limitation, the acquisition of interests in, and the
contributions of property to, its Subsidiaries and any other
Person in which it has an equity investment from time to
time);
(13) the control of any matters affecting the rights and
obligations of the Partnership, including the settlement,
compromise, submission to arbitration or any other form of
dispute resolution, or abandonment of, any claim, cause of
action, liability, debt or damages, due or owing to or from
the Partnership, the commencement or defense of suits, legal
proceedings, administrative proceedings, arbitration or other
forms of dispute resolution, and the representation of the
Partnership in all suits or legal proceedings, administrative
proceedings, arbitrations or other forms of dispute
resolution, the incurring of legal expense, and the
indemnification of any Person against liabilities and
contingencies to the extent permitted by law;
(14) the undertaking of any action in connection with the
Partnership's direct or indirect investment in its
Subsidiaries or any other Person (including, without
limitation, the contribution or loan of funds by the
Partnership to such Persons);
(15) the determination of the fair market value of any Partnership
property distributed in kind using such reasonable method of
valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any
attorney-in-fact acting under a general or limited power of
attorney, of any right, including the
right to vote, appurtenant to any asset or investment held by
the Partnership;
(17) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of or in connection
with any Subsidiary of the Partnership or any other Person in
which the Partnership has a direct or indirect interest, or
jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of any Person in which
the Partnership does not have an interest pursuant to
contractual or other arrangements with such Person;
(19) the making, execution, delivery and performance of any and all
deeds, leases, notes, mortgages, deeds of trust, security
agreements, conveyances, contracts, guarantees, warranties,
indemnities, waivers, releases or legal instruments or
agreements in writing necessary, appropriate or convenient, in
the judgment of the General Partner, for the accomplishment of
any of the powers of the General Partner enumerated in this
Agreement; and
(20) the issuance of additional Partnership Units and other
partnership interests, as appropriate, in connection with
Capital Contributions by Additional Limited Partners and
additional Capital Contributions by Partners pursuant to
Article 4 hereof.
B. Each of the Limited Partners agrees that the General Partner is
authorized to execute, deliver and perform the above-mentioned agreements and
transactions on behalf of the Partnership without any further act, approval
or vote of the Partners, notwithstanding any other provision of this
Agreement (except as provided in Section 7.3), the Act or any applicable law,
rule or regulation, to the fullest extent permitted under the Act or other
applicable law, rule or regulation. The execution, delivery or performance by
the General Partner or the Partnership of any agreement authorized or
permitted under this Agreement shall not constitute a breach by the General
Partner of any duty that the General Partner may owe the Partnership or the
Limited Partners or any other Persons under this Agreement or of any duty
stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may
cause the Partnership to establish and maintain at any and all times working
capital accounts and other cash or similar balances in such amounts as the
General Partner, in its sole and absolute discretion, deems appropriate and
reasonable from time to time.
D. In exercising its authority under this Agreement, the General
Partner may, but shall be under no obligation to, take into account the tax
consequences to any Partner of any action taken by it. The General Partner
and the Partnership shall not be liable to a Limited Partner under any
circumstances as a result of an income tax liability incurred by such Limited
Partner as a result of an action (or inaction) by the General Partner taken
pursuant to its authority under this Agreement and in accordance with the
terms of Section 7.3.
E. Notwithstanding any other provisions of this Agreement, the Act or
any applicable law, rule or regulation, the Partnership and the General
Partner on behalf of the Partnership may enter into, and execute, deliver,
acknowledge and perform, the Omnibus Option Agreement among the Partnership
and the grantors named therein; the Purchase Agreement and Pricing Agreement
with respect to the offering of shares of Common Stock of the General
Partner, among the Partnership, the General Partner and the underwriters
named therein; the Second Amended and Restated Agreement of Limited
Partnership of Omni Partners, L.P., among the Partnership, as a general
partner, and the other partners thereto; the Options to Purchase and Option
to Purchase Agreements relating to the Option Properties (as defined in the
Prospectus relating to the initial public offering of REIT Shares); the Loan
Agreement, among the Partnership, Salomon Brothers Realty Corp. and the
Collateral Agent named therein; the Guarantor Pledge Agreement, among the
Partnership, Reckson FS, Inc. and Salomon Brothers Realty Corp.; the
Supplemental Representations, Warranties and Indemnity Agreement among the
Partnership, the General Partner and the indemnitors named therein; the
Pledge and Security Agreement, among the Partnership, the General Partner and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; the
Agreement of Lease between the Partnership and Reckson Executive Centers,
L.L.C.; the Amended and Restated Agreement of Limited Partnership of the
Financing Partnership, between the Partnership and the Financing Subsidiary;
the Limited Liability Operating Agreement of Reckson Executive Centers
L.L.C., among the Partnership and other members of such company; the Pledge
and Security Agreement, made by Reckom, Inc. and HMCC Associates, L.P. to
Odyli, Inc. and Odyssey Partners, L.P. and consented to by the Partnership
and the General Partner; and the Guaranty, made by the Partnership and the
General Partner to Odyli, Inc. and Odyssey Partners, L.P.; and any loan agree-
ments or modification thereof, any indemnity agreement, and any other agree-
ments or instruments contemplated by or referred to in any of the foregoing
documents or referred to in the prospectus with respect to the initial public
offering of the shares of common stock of the General Partner.
Section 7.2. Certificate of Limited Partnership
----------------------------------
The General Partner has filed the Certificate with the Secretary of
State of Delaware as required by the Act. The General Partner shall use all
reasonable efforts to cause to be filed such other certificates or documents
as may be reasonable and necessary or appropriate for the formation,
continuation, qualification and operation of a limited partnership (or a
partnership in which the limited partners have limited liability) in the
State of Delaware and any other state, or the District of Columbia, in which
the Partnership may elect to do business or own property. To the extent that
such action is determined by the General Partner to be reasonable and
necessary or appropriate or convenient, the General Partner shall file
amendments to and restatements of the Certificate and do all of the things to
maintain the Partnership as a limited partnership (or a partnership in which
the limited partners have limited liability) under the laws of the State of
Delaware and each other state, or the District of Columbia, in which the
Partnership may elect to do business or own property. Subject to the terms of
Section 8.5.A(4) hereof, the General Partner shall not be required, before or
after filing, to deliver or mail a copy of the Certificate or any amendment
thereto or restatement thereof to any Limited Partner.
Section 7.3. Restrictions on General Partner Authority
-----------------------------------------
A. The General Partner may not take any action in contravention of an
express prohibition or limitation of this Agreement without the written
Consent of Limited Partners holding a majority of the Percentage Interests of
the Limited Partners (including Limited Partner Interests held by the
Company), or such other percentage of the Limited Partners as may be
specifically provided for under a provision of this Agreement.
B. Except as provided in Article 13 hereof, during the five year period
following the initial public offering of REIT shares the General Partner may
not cause the Partnership to engage in a Terminating Capital Transaction
(including by way of merger, consolidation or other combination with any
other Person), without the Consent of Limited Partners holding 85% or more of
the Percentage Interests of the Limited Partners (including Limited
Partnership Interests held by the Company). Upon expiration of such five year
period, such 85% percentage shall be reduced to 50%.
Section 7.4. Reimbursement of the General Partner and
----------------------------------------
the Company
-----------
A. Except as provided in this Section 7.4 and elsewhere in this
Agreement (including the provisions of Articles 5 and 6 regarding
distributions, payments, and allocations to which it may be entitled), the
General Partner shall not be compensated for its services as general partner
of the Partnership.
B. The General Partner shall be reimbursed on a monthly basis, or such
other basis as it may determine in its sole and absolute discretion, for all
expenditures that it incurs relating to the ownership and operation of, or
for the benefit of, the Partnership; provided that the amount of any such
reimbursement shall be reduced by any interest earned by the General Partner
with respect to bank accounts or other instruments or accounts held by it on
behalf of the Partnership, and provided further than the General Partner
shall not be reimbursed for any (i) directors fees, (ii) income tax
liabilities or (iii) filing or similar fees in connection with maintaining
the General Partner's continued corporate existence that are incurred by the
General Partner, but the Partners acknowledge that all other expenses of the
General Partner are deemed to be for the benefit of the Partnership. Such
reimbursement shall be in addition to any reimbursement made as a result of
indemnification pursuant to Section 7.7 hereof. Included among the
expenditures for which the General Partner shall be entitled to reimbursement
hereunder shall be any payments of debt service made by the General Partner,
in its capacity as General Partner, as guarantor or otherwise, with respect
to indebtedness encumbering any property held by the Partnership.
C. As set forth in Section 4.3, the Company shall be treated as having
made a Capital Contribution in the amount of all expenses that it incurs and
pays relating to the Company's initial public offering of REIT Shares and any
other issuance of REIT Shares or New Securities pursuant to Section 4.2 the
proceeds from the issuance of which are contributed to the Partnership (i.e.,
excluding such issuances to the extent the proceeds thereof are contributed
to the Financing Subsidiary).
D. In the event that the Company shall elect to purchase from its
shareholders REIT Shares for the purpose of delivering such REIT Shares to
satisfy an obligation under any dividend reinvestment program adopted by the
Company, any employee stock purchase plan adopted by the Company, or any
similar obligation or arrangement undertaken by the Company in the future,
the purchase price paid by the Company for such REIT Shares and any other
expenses incurred by the Company in connection with such purchase shall be
considered expenses of the Partnership and shall be reimbursed to the
Company, subject to the condition that: (i) if such REIT Shares subsequently
are sold by the Company, the Company shall pay to the Partnership any
proceeds received by the Company for such REIT Shares (which sales proceeds
shall include the amount of dividends reinvested under any dividend
reinvestment or similar program provided that a transfer of REIT Shares for
Units pursuant to Section 8.6 would not be considered a sale for such
purposes); and (ii) if such REIT Shares are not retransferred by the Company
within 30 days after the purchase thereof, the Company, as General Partner,
shall cause the Partnership to cancel a number of Partnership Units held by
the Company, as a Limited Partner, equal to the product obtained by
multiplying the Conversion Factor by the number of such REIT Shares (in which
case such reimbursement shall be treated as a distribution in redemption of
Units held by the Company).
Section 7.5. Outside Activities of the General Partner
-----------------------------------------
The General Partner shall not directly or indirectly enter into or
conduct any business other than in connection with the ownership, acquisition
and disposition of Partnership Interests and the management of the business
of the Partnership, and such activities as are incidental thereto. The
General Partner and any Affiliates of the General Partner may acquire Limited
Partner Interests and shall be entitled to exercise all rights of a Limited
Partner relating to such Limited Partner Interests.
Section 7.6. Contracts with Affiliates
-------------------------
A. The Partnership may lend or contribute funds or other assets to its
Subsidiaries or other Persons in which it has an equity investment and such
Persons may borrow funds from the Partnership, on terms and conditions
established in the sole and absolute discretion of the General Partner. The
foregoing authority shall not create any right or benefit in favor of any
Subsidiary or any other Person.
B. Except as provided in Section 7.5, the Partnership may transfer
assets to joint ventures, other partnerships, limited liability companies,
corporations or other business entities in which it is or thereby becomes a
participant upon such terms and subject to such conditions consistent with
this Agreement and applicable law as the General Partner, in its sole and
absolute discretion, believes are advisable.
C. Except as expressly permitted by this Agreement, neither the General
Partner nor any of its Affiliates shall sell, transfer or convey any property
to, or purchase any property from, the Partnership, directly or indirectly,
except pursuant to transactions that are determined by the General Partner in
good faith to be fair and reasonable.
D. The General Partner, in its sole and absolute discretion and without
the approval of the Limited Partners, may propose and adopt, on behalf of the
Partnership, employee benefit plans, stock option plans, and similar plans
funded by the Partnership for the benefit of employees of the General
Partner, the Partnership, Subsidiaries of the Partnership or any Affiliate of
any of them in respect of services performed, directly or indirectly, for the
benefit of the Partnership, the General Partner, or any Subsidiaries of the
Partnership.
E. The General Partner is expressly authorized to enter into, in the
name and on behalf of the Partnership, and without the approval of the
Limited Partners, a right of first opportunity arrangement and other conflict
avoidance agreements with various Affiliates of the Partnership and the
General Partner, on such terms as the General Partner, in its sole and
absolute discretion, believes are advisable.
Section 7.7. Indemnification
---------------
A. To the fullest extent permitted by Delaware law, the Partnership
shall indemnify each Indemnitee from and against any and all losses, claims,
damages, liabilities, joint or several, expenses (including, without
limitation, attorneys fees and other legal fees and expenses), judgments,
fines, settlements, and other amounts arising from any and all claims,
demands, actions, suits or proceedings, civil, criminal, administrative or
investigative, that relate to the operations of the Partnership or the
Company as set forth in this Agreement, in which such Indemnitee may be
involved, or is threatened to be involved, as a party or otherwise, except to
the extent such Indemnitee acted in bad faith, or with gross negligence or
willful misconduct. Without limitation, the foregoing indemnity shall extend
to any liability of any Indemnitee, pursuant to a loan guaranty or otherwise
for any indebtedness of the Partnership or any Subsidiary of the Partnership
(including without limitation, any indebtedness which the Partnership or any
Subsidiary of the Partnership has assumed or taken subject to), and the
General Partner is hereby authorized and empowered, on behalf of the
Partnership, to enter into one or more indemnity agreements consistent with
the provisions of this Section 7.7 in favor of any Indemnitee having or
potentially having liability for any such indebtedness. Any indemnification
pursuant to this Section 7.7 shall be made only out of the assets of the
Partnership, and neither the General Partner nor any Limited Partner shall
have any obligation to contribute to the capital of the Partnership, or
otherwise provide funds, to enable the Partnership to fund its obligations
under this Section 7.7.
B. Reasonable expenses incurred by an Indemnitee who is a party to a
proceeding shall be paid or reimbursed by the Partnership in advance of the
final disposition of the proceeding, upon receipt by the Partnership of an
undertaking by or on behalf of the Indemnitee to repay such amount if it
shall be determined that the Indemnitee is not entitled to be indemnified as
authorized in Section 7.7.A.
C. The indemnification provided by this Section 7.7 shall be in
addition to any other rights to which an Indemnitee or any other Person may
be entitled under any agreement, pursuant to any vote of the Partners, as a
matter of law or otherwise, and shall continue as to an Indemnitee who has
ceased to serve in such capacity unless otherwise provided in a written
agreement pursuant to which such Indemnities are indemnified.
D. The Partnership may, but shall not be obligated to, purchase and
maintain insurance, on behalf of the Indemnities and such other Persons as
the General Partner shall determine, against any liability that may be asserted
against or expenses that may be incurred by such Person in connection with
the Partnership's activities, regardless of whether the Partnership would have
the power to indemnify such Person against such liability under the provisions
of this Agreement.
E. For purposes of this Section 7.7, the Partnership shall be deemed to
have requested an Indemnitee to serve as fiduciary of an employee benefit
plan whenever the performance by it of its duties to the Partnership also
imposes duties on, or otherwise involves services by, it to the plan or
participants or beneficiaries of the plan; excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable
law shall constitute fines within the meaning of Section 7.7; and actions
taken or omitted by the Indemnitee with respect to an employee benefit plan
in the performance of its duties for a purpose reasonably believed by it to
be in the interest of the participants and beneficiaries of the plan shall be
deemed to be for a purpose which is not opposed to the best interests of the
Partnership.
F. In no event may an Indemnitee subject any of the Partners to
personal liability by reason of the indemnification provisions set forth in
this Agreement.
G. An Indemnitee shall not be denied indemnification in whole or in
part under this Section 7.7 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
H. The provisions of this Section 7.7 are for the benefit of the
Indemnities, their heirs, successors, assigns and administrators and shall
not be deemed to create any rights for the benefit of any other Persons. Any
amendment, modification or repeal of this Section 7.7 or any provision hereof
shall be prospective only and shall not in any way affect the Partnership's
liability to any Indemnitee under this Section 7.7, as in effect immediately
prior to such amendment, modification, or repeal with respect to claims
arising from or relating to matters occurring, in whole or in part, prior to
such amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
Section 7.8. Liability of the General Partner
--------------------------------
A. Notwithstanding anything to the contrary set forth in this
Agreement, none of the General Partner, its Affiliates, or any of their
respective officers, directors, stockholders, partners, members, employees,
representatives or agents or any officer, employee, representative or agent
of the Partnership and its Affiliates (individually, a "Covered Person" and
collectively, the "Covered Persons") shall be liable for monetary damages to
the Partnership, any Partners or any Assignees for losses sustained or
liabilities incurred as a result of errors in judgment or of any act or
omission if the Covered Person's conduct did not constitute bad faith, gross
negligence or willful misconduct.
B. The Limited Partners expressly acknowledge that the General Partner
is acting on behalf of the Partnership and the shareholders of the Company
collectively, that the General Partner is under no obligation to consider the
separate interests of the Limited Partners (except as otherwise provided
herein) in deciding whether to cause the Partnership to take (or decline to
take) any actions, and that the General Partner shall not be liable for
monetary damages for losses sustained, liabilities incurred, or benefits not
derived by Limited Partners in connection with such decisions, provided that
the General Partner has acted in good faith.
C. Subject to its obligations and duties as General Partner set forth
in Section 7.1.A hereof, the General Partner may exercise any of the powers
granted to it by this Agreement and perform any of the duties imposed upon it
hereunder either directly or by or through its employees and agents. The
General Partner shall not be responsible for any misconduct or negligence on
the part of any such employee or agent appointed by the General Partner in
good faith.
D. Any amendment, modification or repeal of this Section 7.8 or any
provision hereof shall be prospective only and shall not in any way affect
the limitations on the Covered Person's liability to the Partnership and the
Limited Partners under this Section 7.8 as in effect immediately prior to
such amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claims may arise or be
asserted.
E. To the extent that, at law or in equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating thereto to the Partner-
ship or to the Partners, any Covered Person acting under this Agreement or
otherwise shall not be liable to the Partnership or to any Partner for its good
faith reliance on the provisions of this Agreement. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the
Partners to replace such other duties and liabilities of such Covered Person.
F. Whenever in this Agreement the General Partner is permitted or
required to make a decision (i) in its "sole discretion" or "discretion," or
under a similar grant of authority or latitude, the General Partner shall be
entitled to consider such interests and factors as it desires and may
consider its own interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Partnership or the
Limited Partners, or (ii) in its "good faith" or under another express
standard, the General Partner shall act under such express standard and shall
not be subject to any other or different standards imposed by this Agreement
or by law or any other agreement contemplated herein.
Section 7.9. Other Matters Concerning the General Partner
--------------------------------------------
A. The General Partner may rely and shall be protected in acting, or
refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond,
debenture, or other paper or document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
B. The General Partner may consult with legal counsel, accountants,
appraisers, management consultants, investment bankers, architects,
engineers, environmental consultants and other consultants and advisers
selected by it, and any act taken or omitted to be taken in reliance upon the
opinion of such Persons as to matters which such General Partner reasonably
believes to be within such Person's professional or expert competence shall
be conclusively presumed to have been done or omitted in good faith and in
accordance with such opinion.
C. The General Partner shall have the right, in respect of any of its
powers or obligations hereunder, to act through any of its duly authorized
officers and duly appointed attorneys-in-fact. Each such attorney shall, to
the extent provided by the General Partner in the power of attorney, have
full power and authority to do and perform all and every act and duty which
is permitted or required to be done by the General Partner hereunder.
D. Notwithstanding any other provisions of this Agreement or the Act,
any action of the General Partner on behalf of the Partnership or any decision
of the General Partner to refrain from acting on behalf of the Partnership,
undertaken in the good faith belief that such action or omission is necessary
or advisable in order (i) to protect the ability of the Company to continue to
qualify as a REIT; or (ii) to avoid the Company incurring any taxes under
Section 857 or Section 4981 of the Code, is expressly authorized under this
Agreement and is deemed approved by all of the Limited Partners.
Section 7.10. Title to Partnership Assets
---------------------------
Title to Partnership assets, whether real, personal or mixed and whether
tangible or intangible, shall be deemed to be owned by the Partnership as an
entity, and no Partner, individually or collectively, shall have any
ownership interest in such Partnership assets or any portion thereof. Title
to any or all of the Partnership assets may be held in the name of the
Partnership, the General Partner or one or more nominees, as the General
Partner may determine in its sole and absolute discretion, including
Affiliates of the General Partner. The General Partner hereby declares and
warrants that any Partnership assets for which legal title is held in the
name of the General Partner or any nominee or Affiliate of the General
Partner shall be held by the General Partner for the use and benefit of the
Partnership in accordance with the provisions of this Agreement; provided,
however,that the General Partner shall use its best efforts to cause
beneficial and record title to such assets to be vested in the Partnership as
soon as reasonably practicable. All Partnership assets shall be recorded as
the property of the Partnership in its books and records, irrespective of the
name in which legal title to such Partnership assets is held.
Section 7.11. Reliance by Third Parties
-------------------------
Notwithstanding anything to the contrary in this Agreement, any Person
dealing with the Partnership shall be entitled to assume that the General
Partner has full power and authority, without consent or approval of any
other Partner or Person, to encumber, sell or otherwise use in any manner any
and all assets of the Partnership and to enter into any contracts on behalf
of the Partnership, and take any and all actions on behalf of the Partnership
and such Person shall be entitled to deal with the General Partner as if the
General Partner were the Partnership's sole party in interest, both legally
and beneficially. Each Limited Partner hereby waives any and all defenses or
other remedies which may be available against such Person to contest, negate
or disaffirm any action of the General Partner in connection with any such
dealing. In no event shall any Person dealing with the General Partner or its
representatives be obligated to ascertain that the terms of this Agreement
have been complied with or to inquire into the necessity or expedience of any
act or action of the General Partner or its representatives. Each and every
certificate, document or other instrument executed on behalf of the
Partnership by the General Partner or its representatives shall be conclusive
evidence in favor of any and every Person relying thereon or claiming
thereunder that (i) at the time of the execution and delivery of such
certificate, document or instrument, this Agreement was in full force and
effect; (ii) the Person executing and delivering such certificate, document
or instrument was duly authorized and empowered to do so for and on behalf of
the Partnership; and (iii) such certificate, document or instrument was duly
executed and delivered in accordance with the terms and provisions of this
Agreement and is binding upon the Partnership.
ARTICLE 8
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
Section 8.1. Limitation of Liability
-----------------------
The Limited Partners shall have no liability under this Agreement except
as expressly provided in this Agreement, including Section 10.5 hereof, or
under the Act.
Section 8.2. Management of Business
----------------------
No Limited Partner or Assignee (other than the General Partner, any of
its Affiliates or any officer, director, employee, agent or trustee of the
General Partner, the Partnership or any of their Affiliates, in their
capacity as such) shall take part in the operation, management or control
(within the meaning of the Act) of the Partnership's business, transact any
business in the Partnership's name or have the power to sign documents for or
otherwise bind the Partnership. The transaction of any such business by the
General Partner, any of its Affiliates or any officer, director, employee,
partner, agent or trustee of the General Partner, the Partnership or any of
their Affiliates, in their capacity as such, shall not affect, impair or
eliminate the limitations on the liability of the Limited Partners or
Assignees under this Agreement.
Section 8.3. Outside Activities of Limited Partners
--------------------------------------
Subject to any agreements entered into pursuant to Section 7.6.E hereof
and any other agreements entered into by a Limited Partner or its Affiliates
with the Partnership or any of its Subsidiaries, any Limited Partner (other
than the Company) and any officer, director, employee, agent, trustee,
Affiliate or shareholder of any Limited Partner (other than the Company)
shall be entitled to and may have business interests and engage in business
activities in addition to those relating to the Partnership, including
business interests and activities that are in direct competition with the
Partnership or that are enhanced by the activities of the Partnership.
Neither the Partnership nor any Partners shall have any rights by virtue of
this Agreement in any business ventures of any Limited Partner or Assignee.
None of the Limited Partners (other than the Company) nor any other Person
shall have any rights by virtue of this Agreement or the Partnership
relationship established hereby in any business ventures of any other Person
and such Person shall have no obligation pursuant to this Agreement to offer
any interest in any such business ventures to the Partnership, any Limited
Partner or any such other Person, even if such opportunity is of a character
which, if presented to the Partnership, any Limited Partner or such other
Person, could be taken by such Person.
Section 8.4. Return of Capital
-----------------
Except pursuant to the right of redemption set forth in Section 8.6, no
Limited Partner shall be entitled to the withdrawal or return of its Capital
Contribution, except to the extent of distributions made pursuant to this
Agreement or upon termination of the Partnership as provided herein. Except
to the extent provided by Exhibit C hereof or as otherwise expressly provided
in this Agreement, no Limited Partner or Assignee shall have priority over
any other Limited Partner or Assignee, either as to the return of Capital
Contributions or as to profits, losses or distributions.
Section 8.5. Rights of Limited Partners Relating to the
------------------------------------------
Partnership
-----------
A. In addition to the other rights provided by this Agreement or by the
Act, and except as limited by Section 8.5.C hereof, each Limited Partner
shall have the right, for a purpose reasonably related to such Limited
Partner's interest as a limited partner in the Partnership, upon written
demand with a statement of the purpose of such demand and at such Limited
Partner's own expense (including such copying and administrative charges as
the General Partner may establish from time to time):
(1) to obtain a copy of the most recent annual and quarterly
reports filed with the Securities and Exchange Commission by
the Company pursuant to the Securities Exchange Act of 1934;
(2) to obtain a copy of the Partnership's federal, state and local
income tax returns for each Partnership Year;
(3) to obtain a current list of the name and last known business,
residence or mailing address of each Partner;
(4) to obtain a copy of this Agreement and the Certificate and all
amendments thereto, together with executed copies of all
powers of attorney pursuant to which this Agreement, the
Certificate and all amendments thereto have been executed; and
(5) to obtain true and full information regarding the amount of
cash and a description and statement of any other property or
services contributed by each Partner and which each Partner
has agreed to contribute in the future, and the date on which
each became a Partner.
B. The Partnership shall notify each Limited Partner, upon request, of
the then current Conversion Factor.
C. Notwithstanding any other provision of this Section 8.5, the General
Partner may keep confidential from the Limited Partners, for such period of
time as the General Partner determines in its sole and absolute discretion to
be reasonable, any information that (i) the General Partner reasonably
believes to be in the nature of trade secrets or other information, the
disclosure of which the General Partner in good faith believes is not in the
best interests of the Partnership or could damage the Partnership or its
business; or (ii) the Partnership is required by law or by agreements with an
unaffiliated third party to keep confidential.
Section 8.6. Redemption Right
----------------
A. Subject to Sections 8.6.B and 8.6.C hereof, on or after the date two
(2) years after the closing of the initial public offering of REIT Shares by
the Company, each Limited Partner (other than the Company) shall have the
right (the "Redemption Right") to require the Partnership to
----------------
redeem on a Specified Redemption Date all or a portion of the Partnership
Units held by such Limited Partner at a redemption price per Unit equal to and
in the form of the Cash Amount to be paid by the Partnership. The Redemption
Right shall be exercised pursuant to a Notice of Redemption delivered to the
Partnership (with a copy to the Company) by the Limited Partner who is
exercising the redemption right (the "Redeeming Partner"); provided, however,
-------- -------
that the Partnership shall not be obligated to satisfy such Redemption Right
if the Company elects to purchase the Partnership Units subject to the Notice
of Redemption pursuant to Section 8.6.B. A Limited Partner may not exercise
the Redemption Right for less than one thousand (1,000) Partnership Units at
any one time or, if such Limited Partner holds less than one thousand (1,000)
Partnership Units, all of the Partnership Units held by such Partner. The
Redeeming Partner shall have no right, with respect to any Partnership Units so
redeemed, to receive any distributions paid on or after the Specified Redemp-
tion Date. The Assignee of any Limited Partner may exercise the rights of such
Limited Partner pursuant to this Section 8.6, and such Limited Partner shall be
deemed to have assigned such rights to such Assignee and shall be bound by the
exercise of such rights by such Assignee. In connection with any exercise of
such rights by an Assignee on behalf of a Limited Partner, the Cash Amount
shall be paid by the Partnership directly to such Assignee and not to such
Limited Partner. Any Partnership Units redeemed by the Partnership pursuant
to this Section 8.6.A shall be cancelled upon such redemption.
B. Notwithstanding the provisions of Section 8.6.A, a Limited Partner
that exercises the Redemption Right shall be deemed to have offered to sell
the Partnership Units described in the Notice of Redemption to the Company,
and the Company may, in its sole and absolute discretion, elect to purchase
directly and acquire such Partnership Units by paying to the Redeeming
Partner either the Cash Amount or the REIT Shares Amount, as elected by the
Company (in its sole and absolute discretion), on the Specified Redemption
Date, whereupon the Company shall acquire the Partnership Units offered for
redemption by the Redeeming Partner and shall be treated for all purposes of
this Agreement as the owner of such Partnership Units. If the Company shall
elect to exercise its right to purchase Partnership Units under this Section
8.6.B with respect to a Notice of Redemption, it shall so notify the
Redeeming Partner within five Business Days after the receipt by it of such
Notice of Redemption. Unless the Company (in its sole and absolute
discretion) shall exercise its right to purchase Partnership Units from the
Redeeming Partner pursuant to this Section 8.6.B, the Company shall not have
any obligation to the Redeeming Partner or the Partnership with respect to
the Redeeming Partner's exercise of the Redemption Right. In the event the
Company shall exercise its right to purchase Partnership Units with respect
to the exercise of a Redemption Right in the manner described in the first
sentence of this Section 8.6.B, the Partnership shall have no obligation to
pay any amount to the Redeeming Partner with respect to such Redeeming Part-
ner's exercise of such Redemption Right, and each of the Redeeming Partner, the
Partnership, and the Company shall treat the transaction between the Company
and the Redeeming Partner, for federal income tax purposes, as a sale of the
Redeeming Partner's Partnership Units to the Company. Each Redeeming Partner
agrees to execute such documents as the Company may reasonably require in
connection with the issuance of REIT Shares upon exercise of the Redemption
Right. In case of any reclassification of the REIT Shares (including, but
not limited to, any reclassification upon a consolidation or merger in which
the Company is the continuing corporation) into securities other than REIT
Shares, for purposes of this Section 8.6.B, the Company (or a Successor
General Partner) may thereafter exercise its right to purchase Partnership
Units for the kind and amount of shares of such securities receivable upon
such reclassification by a holder of the number of REIT Shares for which such
Units could be purchased pursuant to this Section immediately prior to such
reclassification.
C. Notwithstanding the provisions of Section 8.6.A and Section 8.6.B, a
Partner shall not be entitled to exercise the Redemption Right pursuant to
Section 8.6.A to the extent that the delivery of REIT Shares to such Partner
on the Specified Redemption Date by the Company pursuant to Section 8.6.B
(regardless of whether or not the Company would in fact exercise its rights
under Section 8.6.B) would be prohibited under the Articles of Incorporation
of the Company.
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1. Records and Accounting
----------------------
The General Partner shall keep or cause to be kept at the principal
office of the Partnership those records and documents required to be
maintained by the Act and other books and records deemed by the General
Partner to be appropriate with respect to the Partnership's business,
including, without limitation, all books and records necessary to provide to
the Limited Partners any information, lists and copies of documents required
to be provided pursuant to Section 9.3 hereof. Any records maintained by or
on behalf of the Partnership in the regular course of its business may be
kept on, or be in the form of, punch cards, magnetic tape, photographs,
micrographics or any other information storage device, provided that the
records so maintained are convertible into clearly legible written form
within a reasonable period of time. The books of the Partnership shall be
maintained, for financial and tax reporting purposes, on an accrual basis
in accordance with generally accepted accounting principles, or such other
basis as the General Partner determines to be necessary or appropriate.
Section 9.2. Fiscal Year
-----------
The fiscal year of the Partnership shall be the calendar year.
Section 9.3. Reports
-------
A. As soon as practicable, but in no event later than one hundred five
(105) days after the close of each Partnership Year, the General Partner
shall cause to be mailed to each Limited Partner as of the close of the
Partnership Year, an annual report containing financial statements of the
Partnership, or of the Company if such statements are prepared solely on a
consolidated basis with the Company, for such Partnership Year, presented in
accordance with generally accepted accounting principles, such statements to
be audited by a nationally recognized firm of independent public accountants
selected by the General Partner.
B. As soon as practicable, but in no event later than one hundred five
(105) days after the close of each calendar quarter (except the last calendar
quarter of each year), the General Partner shall cause to be mailed to each
Limited Partner as of the last day of the calendar quarter, a report
containing unaudited financial statements of the Partnership, or of the
Company, if such statements are prepared solely on a consolidated basis with
the Company, and such other information as may be required by applicable law
or regulation, or as the General Partner determines to be appropriate.
ARTICLE 10
TAX MATTERS
Section 10.1. Preparation of Tax Returns
--------------------------
The General Partner shall arrange for the preparation and timely filing
of all returns of Partnership income, gains, deductions, losses and other
items required of the Partnership for federal and state income tax purposes
and shall use all reasonable efforts to furnish, within ninety (90) days of
the close of each taxable year, the tax information reasonably required by
Limited Partners for federal and state income tax reporting purposes.
Section 10.2. Tax Elections
-------------
Except as otherwise provided herein, the General Partner shall, in its
sole and absolute discretion, determine whether to make any available
election pursuant to the Code. Notwithstanding the above, in making any such
tax election the General Partner may, but shall be under no obligation to,
take into account the tax consequences to the Limited Partners resulting from
any such election.
The General Partner shall make such tax elections on behalf of the
Partnership as the Limited Partners holding a majority of the Percentage
Interests of the Limited Partners (excluding Limited Partner Interests held
by the Company) request, provided that the General Partner believes that such
election is not adverse to the interests of the General Partner, including
its interest in preserving its qualification as a REIT under the Code. The
General Partner intends to elect the so-called "traditional method" of making
Section 704(c) allocations pursuant to Regulations Section 1.704-3 with
respect to property contributed as of the date hereof. The General Partner
shall have the right to seek to revoke any tax election it makes (including,
without limitation, an election under Section 754 of the Code) upon the
General Partner's determination, in its sole and absolute discretion, that
such revocation is in the best interests of the Partners.
Section 10.3. Tax Matters Partner
-------------------
A. The General Partner shall be the "tax matters partner" of the
Partnership for federal income tax purposes. Pursuant to Section 6230(e) of
the Code, upon receipt of notice from the IRS of the beginning of an
administrative proceeding with respect to the partnership, the tax matters
partner shall furnish the IRS with the name, address, taxpayer identification
number, and profit interest of each of the Limited Partners and the
Assignees; provided, however, that such information is provided to the
Partnership by the Limited Partners and the Assignees.
B. The tax matters partner is authorized, but not required:
(1) to enter into any settlement with the IRS with respect to any
administrative or judicial proceedings for the adjustment of
Partnership items required to be taken into account by a
Partner for income tax purposes (such administrative
proceedings being referred to as a "tax audit" and such
judicial proceedings being referred to as "judicial review"),
and in the settlement agreement the tax matters partner may
expressly state that such agreement shall bind all Partners,
except that such settlement agreement shall not bind any
Partner (i) who (within the time prescribed pursuant to the
Code and Regulations) files a statement with the IRS providing
that the tax matters partner shall not have the authority to
enter into a settlement agreement on behalf of such Partner;
or (ii) who is a "notice partner" (as defined in Section
6231(a)(8) of the Code) or a member of a "notice group" (as
defined in Section 6223(b)(2) of the Code);
(2) in the event that a notice of a final administrative
adjustment at the Partnership level of any item required to be
taken into account by a Partner for tax purposes (a "final
adjustment") is mailed to the tax matters partner, to seek
judicial review of such final adjustment, including the filing
of a petition for readjustment with the Tax Court or the
filing of a complaint for refund with the United States Claims
Court or the District Court of the United States for the
district in which the Partnership's principal place of
business is located;
(3) to intervene in any action brought by any other Partner for
judicial review of a final adjustment;
(4) to file a request for an administrative adjustment with the
IRS and, if any part of such request is not allowed by the
IRS, to file an appropriate pleading (petition or complaint)
for judicial review with respect to such request;
(5) to enter into an agreement with the IRS to extend the period
for assessing any tax which is attributable to any item
required to be taken account of by a Partner for tax purposes,
or an item affected by such item; and
(6) to take any other action on behalf of the Partners or the
Partnership in connection with any tax audit or judicial
review proceeding to the extent permitted by applicable law or
regulations.
The taking of any action and the incurring of any expense by the tax
matters partner in connection with any such proceeding, except to the extent
required by law, is a matter in the sole and absolute discretion of the tax
matters partner and the provisions relating to indemnification of the General
Partner set forth in Section 7.7 of this Agreement shall be fully applicable
to the tax matters partner in its capacity as such.
C. The tax matters partner shall receive no compensation for its
services. All third party costs and expenses incurred by the tax matters
partner in performing its duties as such (including legal and accounting fees
and expenses) shall be borne by the Partnership. Nothing herein shall be
construed to restrict the Partnership from engaging an accounting firm to
assist the tax matters partner in discharging its duties hereunder, so long
as the compensation paid by the Partnership for such services is reasonable.
Section 10.4. Organizational Expenses
-----------------------
The Partnership shall elect to deduct expenses, if any, incurred by it
in forming the Partnership ratably over a sixty (60) month period as provided
in Section 709 of the Code.
Section 10.5. Withholding
-----------
Each Limited Partner hereby authorizes the Partnership to withhold from,
or pay on behalf of or with respect to, such Limited Partner any amount of
federal, state, local, or foreign taxes that the General Partner determines
that the Partnership is required to withhold or pay with respect to any
amount distributable or allocable to such Limited Partner pursuant to this
Agreement, including, without limitation, any taxes required to be withheld
or paid by the Partnership pursuant to Sections 1441, 1442, 1445, or 1446 of
the Code. Any amount paid on behalf of or with respect to a Limited Partner
shall constitute a loan by the Partnership to such Limited Partner, which
loan shall be repaid by such Limited Partner within fifteen (15) days after
notice from the General Partner that such payment must be made unless (i) the
Partnership withholds such payment from a distribution which would otherwise
be made to the Limited Partner; or (ii) the General Partner determines, in
its sole and absolute discretion, that such payment may be satisfied out of
the available funds of the Partnership which would, but for such payment, be
distributed to the Limited Partner. Any amounts withheld pursuant to the
foregoing clauses (i) or (ii) shall be treated as having been distributed to
such Limited Partner. In the event that a Limited Partner fails to pay any
amounts owed to the Partnership pursuant to this Section 10.5 when due, the
General Partner may, in its sole and absolute discretion, elect to make the
payment to the Partnership on behalf of such defaulting Limited Partner, and
in such event shall be deemed to have loaned such amount to such defaulting
Limited Partner and shall succeed to all rights and remedies of the
Partnership as against such defaulting Limited Partner. Without limitation,
in such event the General Partner shall have the right to receive distributions
that would otherwise be distributable to such defaulting Limited Partner until
such time as such loan, together with all interest thereon, has been paid in
full, and any such distributions so received by the General Partner shall be
treated as having been distributed to the defaulting Limited Partner and imme-
diately paid by the defaulting Limited Partner to the General Partner in repay-
ment of such loan. Any amounts payable by a Limited Partner hereunder shall bear
interest at the lesser of (A) the base rate on corporate loans at large United
States money center commercial banks, as published from time to time
in The Wall Street Journal, plus four (4) percentage points, or (B) the maximum
----------------------- lawful rate
of interest on such obligation, such interest to accrue from the date such
amount is due (i.e., fifteen (15) days after demand) until such amount is
paid in full. Each Limited Partner shall take such actions as the Partnership
or the General Partner shall request in order to perfect or enforce the
security interest created hereunder.
ARTICLE 11
TRANSFERS AND WITHDRAWALS
Section 11.1. Transfer
--------
A. The term "transfer," when used in this Article 11 with respect to a
Partnership Unit, shall be deemed to refer to a transaction by which the
General Partner purports to assign all or any part of its General Partner
Interest to another Person or by which a Limited Partner purports to assign
all or any part of its Limited Partner Interest to another Person, and
includes a sale, assignment, gift, pledge, encumbrance, hypothecation,
mortgage, exchange or any other disposition by law or otherwise. The term
"transfer" when used in this Article 11 does not include (i) any redemption
of Partnership Interests by the Partnership from a Limited Partner, (ii) any
acquisition of Partnership Units from a Limited Partner by the Company
pursuant to Section 8.6, (iii) any distribution of Partnership Units by a
Limited Partner to its beneficial owners or (iv) a pledge or transfer of
Partnership Units pursuant to either (1) the Pledge and Security Agreement
dated as of June 2, 1995, by and between Reckom, Inc., HMCC Associates, L.P.,
Odyli, Inc. and Odyssey Partners, L.P. or (2) the Pledge and Security
Agreement dated as of June 2, 1995 by and among the Company, the Partnership,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇, Vanderbilt Generations, L.P., Wildoro Associates and Reckson
Associates.
B. No Partnership Interest shall be transferred, in whole or in part,
except in accordance with the terms and conditions set forth in this Article
11. Any transfer or purported transfer of a Partnership Interest not made in
accordance with this Article 11 shall be null and void.
Section 11.2. Transfer of the Company's General Partner
-----------------------------------------
Interest and Limited Partner Interest
---------------------------------------------------------
The Company may not transfer any of its General Partner Interest or
withdraw as General Partner, or transfer any of its Limited Partner Interest,
unless Limited Partners holding a majority of the Percentage Interests of the
Limited Partners (other than Limited Partner Interests held by the Company)
consent to such transfer or withdrawal.
Section 11.3. Limited Partners' Rights to Transfer
------------------------------------
A. Subject to the provisions of Sections 11.3.C, 11.3.D, 11.3.E, 11.4
and 11.6, a Limited Partner (other than the Company) may transfer, with or
without the consent of the General Partner, all or any portion of its
Partnership Interest, or any of such Limited Partner's economic rights as a
Limited Partner.
B. If a Limited Partner is subject to Incapacity, the executor,
administrator, trustee, committee, guardian, conservator or receiver of such
Limited Partner's estate shall have all of the rights of a Limited Partner,
but not more rights than those enjoyed by other Limited Partners, for the
purpose of settling or managing the estate and such power as the
Incapacitated Limited Partner possessed to transfer all or any part of his or
its interest in the Partnership. The Incapacity of a Limited Partner, in and
of itself, shall not dissolve or terminate the Partnership.
C. The General Partner may prohibit any transfer by a Limited Partner
of its Partnership Units if, in the opinion of legal counsel to the
Partnership, such transfer would require filing of a registration statement
under the Securities Act of 1933 or would otherwise violate any federal or
state securities laws or regulations applicable to the Partnership or the
Partnership Units.
D. No transfer by a Limited Partner of its Partnership Units may be
made to any Person if (i) in the opinion of legal counsel for the
Partnership, it would result in the Partnership being treated as an
association taxable as a corporation; (ii) it is made within two years after
the consummation of the initial public offering of the Company without the
consent of the General Partner; (iii) such transfer is effectuated through an
"established securities market" or a "secondary market (or the substantial
equivalent thereof)" with the meaning of Section 7704 of the Code; (iv) such
transfer would cause the Partnership to become, with respect to any employee
benefit plan subject to Title I of ERISA, a "party-in-interest" (as defined
in Section 3(14) of ERISA) or a "disqualified person" (as defined in Section
4975(c) of the Code); (v) such transfer would, in the opinion of legal
counsel for the Partnership, cause any portion of the assets of the
Partnership to constitute assets of any employee benefit plan pursuant to
Department of Labor Regulations Section 2510.2-101; (vi) such transfer would
subject the Partnership to be regulated under the Investment Company Act of
1940, the Investment Advisors Act of 1940 or the Employee Retirement Income
Security Act of 1974, each as amended; or (vii) such Person is a member of
Reckson Executive Centers, L.L.C.; provided that this restriction shall not
apply to a transfer of Partnership Units between Limited Partners
attributable to closing adjustments made pursuant to Article V of the Omnibus
Option Agreement, dated December 15, 1994, by and among the Partnership and
the Grantors named therein.
E. No transfer of any Partnership Units may be made to a lender to the
Partnership or any Person who is related (within the meaning of Section
1.752-4(b) of the Regulations) to any lender to the Partnership whose loan
constitutes a Nonrecourse Liability, without the consent of the General
Partner, in its sole and absolute discretion; provided that as a condition to
such consent the lender will be required to enter into an arrangement with
the Partnership and the General Partner to redeem for the Cash Amount any
Partnership Units in which a security interest is held simultaneously with
the time at which such lender would be deemed to be a partner in the
Partnership for purposes of allocating liabilities to such lender under
Section 752 of the Code.
F. The General Partner shall keep a register for the Partnership on
which the transfer, pledge or release of Partnership Units shall be shown and
pursuant to which entries shall be made to effect all transfers, pledges or
releases as required by Sections 8-207, 8-313(1) and 8-321 of the Uniform
Commercial Code, as amended, in effect in the States of New York and
Delaware; provided, however, that if there is any conflict between such
requirements, the provisions of the Delaware Uniform Commercial Code shall
govern. The General Partner shall (i) place proper entries in such register
clearly showing each transfer and each pledge and grant of security interest
and the transfer and assignment pursuant thereto, such entries to be endorsed
by the General Partner and (ii) maintain the register and make the register
available for inspection by all of the Partners and their pledgees at all
times during the term of this
Agreement. Nothing herein shall be deemed a consent to any pledge or
transfer otherwise prohibited under this Agreement.
Section 11.4. Substituted Limited Partners
----------------------------
A. No Limited Partner shall have the right to substitute a transferee
as a Limited Partner in his place. The General Partner shall, however, have
the right to consent to the admission of a transferee of the interest of a
Limited Partner pursuant to this Section 11.4 as a Substituted Limited
Partner, which consent may be given or withheld by the General Partner in its
sole and absolute discretion. The General Partner's failure or refusal to
permit a transferee of any such interests to become a Substituted Limited
Partner shall not give rise to any cause of action against the Partnership or
any Partner. A Person shall be admitted to the Partnership as a Substituted
Limited Partner only upon the aforementioned consent of the General Partner
and the furnishing to the General Partner of (i) evidence of acceptance in
form satisfactory to the General Partner of all of the terms and conditions
of this Agreement, including, without limitation, the power of attorney
granted in Section 2.4 hereof and (ii) such other documents of the General
Partner in order to effect such Person's admission as a Substituted Limited
Partner. The admission of any Person as a Substituted Limited Partner shall
become effective on the date upon which the name of such Person is recorded
on the books and records of the Partnership, following the consent of the
General Partner to such admission.
B. A transferee who has been admitted as a Substituted Limited Partner
in accordance with this Article 11 shall have all the rights and powers and
be subject to all the restrictions and liabilities of a Limited Partner under
this Agreement.
C. Upon the admission of a Substituted Limited Partner, the General
Partner shall amend Exhibit A to reflect the name, address, number of
Partnership Units, and Percentage Interest of such Substituted Limited
Partner and to eliminate or adjust, if necessary, the name, address and
interest of the predecessor of such Substituted Limited Partner.
Section 11.5. Assignees
---------
If the General Partner, in its sole and absolute discretion, does not
consent to the admission of any permitted transferee as a Substituted Limited
Partner, as described in Section 11.4, such transferee shall be considered an
Assignee for purposes of this Agreement. An Assignee shall be deemed to have
had assigned to it, and shall be entitled to receive distributions from the
Partnership and the share of Net Income, Net Losses, Recapture Income, and
any other items, gain, loss deduction and credit of the Partnership attribu-
table to the Partnership Units assigned to such transferee, but shall not be
deemed to be a holder of Partnership Units for any other purpose under this
Agreement, and shall not be entitled to vote such Partnership Units in any
matter presented to the Limited Partners for a vote (such Partnership Units
being deemed to have been voted on such matter in the same proportion as all
other Partnership Units held by Limited Partners are voted). In the event any
such transferee desires to make a further assignment of any such Partnership
Units, such transferee shall be subject to all of the provisions of this
Article 11 to the same extent and in the same manner as any Limited Partner
desiring to make an assignment of Partnership Units.
Section 11.6. General Provisions
------------------
A. No Limited Partner may withdraw from the Partnership other than as a
result of a permitted transfer of all of such Limited Partner's Partnership
Units in accordance with this Article 11 or pursuant to redemption of all of
its Partnership Units, or the acquisition thereof by the Company, under
Section 8.6.
B. Any Limited Partner who shall transfer all of its Partnership Units
in a transfer permitted pursuant to this Article 11 shall cease to be a
Limited Partner upon the admission of all Assignees of such Partnership Units
as Substitute Limited Partners. Similarly, any Limited Partner who shall
transfer all of its Partnership Units pursuant to a redemption of all of its
Partnership Units, or the acquisition thereof by the Company, under Section
8.6 shall cease to be a Limited Partner.
C. Transfers pursuant to this Article 11 may only be made on the first
day of a fiscal quarter of the Partnership, unless the General Partner
otherwise agrees.
D. If any Partnership Interest is transferred or assigned during any
quarterly segment of the Partnership's fiscal year in compliance with the
provisions of this Article 11 or redeemed or transferred pursuant to Section
8.6 on any day other than the first day of a Partnership Year, then Net
Income, Net Losses, each item thereof and all other items attributable to
such interest for such Partnership Year shall be divided and allocated
between the transferor Partner and the transferee Partner by taking into
account their varying interests during the Partnership Year in accordance
with Section 706(d) of the Code, using the interim closing of the books
method. Solely for purposes of making such allocations, each of such items
for the calendar month in which the transfer or assignment occurs shall be
allocated to the transferee Partner, and none of such items for the calendar
month in which a redemption occurs shall be allocated to the Redeeming Partner;
provided, however, that the General Partner may adopt such other conventions
relating to allocations in connection with transfers, assignments or redemptions
as it determines are necessary or appropriate. All distributions of Available
Cash attributable to such Partnership Unit with respect to which the Partner-
ship Record Date is before the date of such transfer, assignment, or redemption
shall be made to the transferor Partner or the Redeeming Partner, as the case
may be, and in the case of a transfer or assignment other than a redemption,
all distributions of Available Cash thereafter attributable to such Partner-
ship Unit shall be made to the transferee Partner.
ARTICLE 12
ADMISSION OF PARTNERS
Section 12.1. Admission of Successor General Partner
--------------------------------------
A successor to all of the General Partner Interest pursuant to Section
11.2 hereof who is proposed to be admitted as a successor General Partner
shall be admitted to the Partnership as the General Partner, effective
immediately prior to such transfer. Any such transferee shall carry on the
business of the Partnership without dissolution. In each case, the admission
shall be subject to the successor General Partner executing and delivering to
the Partnership an acceptance of all of the terms and conditions of this
Agreement and such other documents or instruments as may be required to
effect the admission. In the case of such admission on any day other than the
first day of a Partnership Year, all items attributable to the General
Partner Interest for such Partnership Year shall be allocated between the
transferring General Partner and such successor as provided in Section 11.6.D
hereof.
Section 12.2. Admission of Additional Limited Partners
----------------------------------------
A. After the admission to the Partnership of the Limited Partners named
in Exhibit A attached hereto on the date hereof (other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
who has previously been admitted as a limited partner), a Person who makes a
Capital Contribution to the Partnership in accordance with this Agreement
shall be admitted to the Partnership as an Additional Limited Partner only
upon furnishing to the General Partner (i) evidence of acceptance in form
satisfactory to the General Partner of all of the terms and conditions of
this Agreement, including, without limitation, the power of attorney granted
in Section 2.4 hereof and (ii) such other documents or instruments as may be
required in the discretion of the General Partner in order to effect such
Person's admission as an Additional Limited Partner.
B. Notwithstanding anything to the contrary in this Section 12.2, no
Person shall be admitted as an Additional Limited Partner without the consent
of the General Partner, which consent may be given or withheld in the General
Partner's sole and absolute discretion. The admission of any Person as an
Additional Limited Partner shall become effective on the date upon which the
name of such Person is recorded on the books and records of the Partnership,
following the consent of the General Partner to such admission.
C. If any Additional Limited Partner is admitted to the Partnership on
any day other than the first day of a Partnership Year, then Net Income, Net
Losses, each item thereof and all other items allocable among Partners and
Assignees for such Partnership Year shall be allocated among such Additional
Limited Partner and all other Partners and Assignees by taking into account
their varying interests during the Partnership Year in accordance with
Section 706(d) of the Code, using the interim closing of the books method.
Solely for purposes of making such allocations, each such item for the
calendar month in which an admission of any Additional Limited Partner occurs
shall be allocated among all of the Partners and Assignees, including such
Additional Limited Partner; provided, however, that the General Partner may
adopt such other conventions relating to allocations to Additional Limited
Partners as it determines are necessary or appropriate. All distributions of
Available Cash with respect to which the Partnership Record Date is before
the date of such admission shall be made solely to Partners and Assignees,
other than the Additional Limited Partner, and all distributions of Available
Cash thereafter shall be made to all of the Partners and Assignees, including
such Additional Limited Partner.
Section 12.3. Amendment of Agreement and Certificate of
-----------------------------------------
Limited Partnership
-------------------
For the admission to the Partnership of any Partner, the General Partner
shall take all steps necessary and appropriate under the Act to amend the
records of the Partnership and, if necessary, to prepare as soon as practical
an amendment of this Agreement (including an amendment of Exhibit A) and, if
required by law, shall prepare and file an amendment to the Certificate and
may for this purpose exercise the power of attorney granted pursuant to
Section 2.4 hereof.
ARTICLE 13
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1. Dissolution
-----------
The Partnership shall not be dissolved by the admission of Substituted
Limited Partners or Additional Limited Partners or by the admission of a
successor General Partner in accordance with the terms of this Agreement.
Upon the withdrawal of the General Partner, any successor General Partner
shall continue the business of the Partnership without dissolution. The
Partnership shall dissolve, and its affairs shall be wound up, only upon the
first to occur of any of the following ("Liquidating Events"):
A. the expiration of its term as provided in Section 2.5 hereof;
B. an event of withdrawal of the General Partner, as defined in the
Act, other than an event of bankruptcy as defined in the Act, unless, (i) at
the time of the occurrence of such event there is at least one remaining
general partner of the Partnership who is hereby authorized to and does carry
on the business of the Partnership, or (ii) within ninety (90) days after
such event of withdrawal not less than a majority in interest of the
remaining Partners (or such greater percentage in interest as may be required
by the Act and determined in accordance with the Act), determined, in case
the withdrawing General Partner continues as a Limited Partner, by both
excluding and including Limited Partner Interests continuing to be held by
the withdrawing General Partner, agrees in writing to continue the business
of the Partnership and to the appointment, effective as of the date of
withdrawal, of a successor General Partner;
C. from and after the date of this Agreement through December 31,
2055, an election to dissolve the Partnership made by the General Partner
with the Consent of Partners holding the requisite percentage specified in
Section 7.3B hereof of the Percentage Interests of the Limited Partners
(including Limited Partner Interests held by the Company);
D. on or after January 1, 2056, an election to dissolve the
Partnership made by the General Partner, in its sole and absolute discretion;
E. entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act;
F. the sale of all or substantially all of the assets and properties
of the Partnership; or
G. a final and non-appealable judgment is entered by a court of
competent jurisdiction ruling that the General Partner is bankrupt or
insolvent, or a final and non-appealable order for relief is entered by a
court with appropriate jurisdiction against the General Partner, in each case
under any federal or state bankruptcy or insolvency laws as now or hereafter
in effect (hereinafter referred to as an "Event of Bankruptcy," and such term
as used herein is intended and shall be deemed to supersede and replace the
events of withdrawal described in Section 17-402(a)(4) and (5) of the Act),
unless prior to the entry of such order or judgment all of the remaining
Partners agree in writing to continue the business of the Partnership and to
the appointment, effective as of a date prior to the date of such order or
judgment, of a substitute General Partner.
Section 13.2. Winding Up
-----------
A. Upon the occurrence of a Liquidating Event, the Partnership shall
continue solely for the purposes of winding up its affairs in an orderly
manner, liquidating its assets, and satisfying the claims of its creditors
and Partners. No Partner shall take any action that is inconsistent with, or
not necessary to or appropriate for, the winding up of the Partnership's
business and affairs. The General Partner, or, in the event there is no
remaining General Partner, any Person elected by a majority in interest of
the Limited Partners (the General Partner or such other Person being referred
to herein as the "Liquidator"), shall be responsible for overseeing the
winding up and dissolution of the Partnership and shall take full account of
the Partnership's liabilities and property and the Partnership property shall
be liquidated as promptly as is consistent with obtaining the fair value
thereof, and the proceeds therefrom (which may, to the extent determined by
the General Partner, include shares of common stock in the Company) shall be
applied and distributed in the following order:
(1) First, in satisfaction of all of the Partnership's debts and
liabilities to creditors other than the Partners (whether by
payment or the making of reasonable provision for payment
thereof);
(2) Second, to the payment and discharge of all of the
Partnership's debts and liabilities to the General Partner;
(3) Third, to the payment and discharge of all of the
Partnership's debts and liabilities to the other Partners; and
(4) The balance, if any, to the General Partner and Limited
Partners in accordance with their Capital Accounts, after
giving effect to all contributions, distributions, and
allocations for all periods.
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article 13.
B. Notwithstanding the provisions of Section 13.2.A hereof which
require liquidation of the assets of the Partnership, but subject to the
order of priorities set forth therein, if prior to or upon dissolution of the
Partnership the Liquidator determines that an immediate sale of part or all
of the Partnership's assets would be impractical or would cause undue loss to
the Partners, the Liquidator may, in its sole and absolute discretion, defer
for a reasonable time the liquidation of any assets except those necessary to
satisfy liabilities of the Partnership (including to those Partners as
creditors) and/or distribute to the Partners, in lieu of cash, as tenants in
common and in accordance with the provisions of Section 13.2.A hereof,
undivided interests in such Partnership assets as the Liquidator deems not
suitable for liquidation. Any such distributions in kind shall be made only
if, in the good faith judgment of the Liquidator, such distributions in kind
are in the best interest of the Partners, and shall be subject to such
conditions relating to the disposition and management of such properties as
the Liquidator deems reasonable and equitable and to any agreements governing
the operation of such properties at such time. The Liquidator shall
determine the fair market value of any property distributed in kind using
such reasonable method of valuation as it may adopt.
C. In the discretion of the Liquidator, a pro rata portion of the
distributions that would otherwise be made to the General Partner and Limited
Partners pursuant to this Article 13 may be:
(1) distributed to a trust established for the benefit of the
General Partner and Limited Partners for the purposes of
liquidating Partnership assets, collecting amounts owed to the
Partnership, and paying any contingent or unforeseen
liabilities or obligations of the Partnership or the General
Partner arising out of or in connection with the Partnership.
The assets of any such trust shall be distributed to the
General Partner and Limited Partners from time to time, in the
reasonable discretion of the Liquidator, in the same
proportions as the amount distributed to such trust by the
Partnership would otherwise have been distributed to the General
Partner and Limited Partners pursuant to this Agreement; or
(2) withheld or escrowed to provide a reasonable reserve for
Partnership liabilities (contingent or otherwise) and to
reflect the unrealized portion of any installment obligations
owed to the Partnership, provided that such withheld or
escrowed amounts shall be distributed to the General Partner
and Limited Partners in the manner and order of priority set
forth in Section 13.2.A as soon as practicable.
Section 13.3. Compliance with Timing Requirements of
--------------------------------------
Regulations
-----------
In the event the Partnership is "liquidated" within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made
pursuant to this Article 13 to the General Partner and Limited Partners who
have positive Capital Accounts in compliance with Regulations Section
1.704-l(b)(2)(ii)(b)(2). If any Partner has a deficit balance in his Capital
Account (after giving effect to all contributions, distributions and
allocations for all taxable years, including the year during which such
liquidation occurs), such Partner shall have no obligation to make any
contribution to the capital of the Partnership with respect to such deficit,
and such deficit shall not be considered a debt owed to the Partnership or to
any other Person for any purpose whatsoever.
Section 13.4. Deemed Distribution and Recontribution
--------------------------------------
Notwithstanding any other provision of this Article 13, in the event the
Partnership is "liquidated" within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g), but no Liquidating Event has occurred, the
Partnership's property shall not be liquidated, the Partnership's liabilities
shall not be paid or discharged, and the Partnership's affairs shall not be
wound up. Instead, for federal income tax purposes and for purposes of
maintaining Capital Accounts pursuant to Exhibit B hereto, the
-------
Partnership shall be deemed to have distributed the property in kind to the
General Partner and Limited Partners, who shall be deemed to have assumed and
taken such property subject to all Partnership liabilities, all in accordance
with their respective Capital Accounts. Immediately thereafter, the General
Partner and Limited Partners shall be deemed to have recontributed the
Partnership property in kind to the Partnership, which shall be deemed to
have assumed and taken such property subject to all such liabilities.
Section 13.5. Rights of Limited Partners
--------------------------
Except as otherwise provided in this Agreement, each Limited Partner
shall look solely to the assets of the Partnership for the return of its
Capital Contributions and shall have no right or power to demand or receive
property other than cash from the Partnership. Except as otherwise provided
in this Agreement, no Limited Partner shall have priority over any other
Partner as to the return of its Capital Contributions, distributions,
or allocations.
Section 13.6. Notice of Dissolution
---------------------
In the event a Liquidating Event occurs or an event occurs that would,
but for the provisions of an election or objection by one or more Partners
pursuant to Section 13.1, result in a dissolution of the Partnership, the
General Partner shall, within thirty (30) days thereafter, provide written
notice thereof to each of the Partners.
Section 13.7. Termination of Partnership and Cancellation
-------------------------------------------
of Certificate of Limited Partnership
-------------------------------------
Upon the completion of the winding-up of the Partnership and liquidation
of its assets, as provided in Section 13.2 hereof, the Partnership shall be
terminated by filing a certificate of cancellation with the Secretary of
State of the State of Delaware, cancelling all qualifications of the
Partnership as a foreign limited partnership in jurisdictions other than the
State of Delaware and taking such other actions as may be necessary to
terminate the Partnership.
Section 13.8. Reasonable Time for Winding-Up
------------------------------
A reasonable time shall be allowed for the orderly winding-up of the
business and affairs of the Partnership and the liquidation of its assets
pursuant to Section 13.2 hereof, in order to minimize any losses otherwise
attendant upon such winding-up, and the provisions of this Agreement shall
remain in effect between the Partners during the period of liquidation.
Section 13.9. Waiver of Partition
-------------------
Each Partner hereby waives any right to partition of the Partnership
property.
ARTICLE 14
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS
Section 14.1. Amendment of Partnership Agreement
----------------------------------
A. Amendments to this Agreement may be proposed by the General Partner
or by any Limited Partners (other than the Company) holding twenty percent
(20%) or more of the Partnership Interests. Following such proposal, the
General Partner shall submit any proposed amendment to the Limited Partners.
The General Partner shall seek the written vote of the Partners on the
proposed amendment or shall call a meeting to vote thereon and to transact
any other business that it may deem appropriate. For purposes of obtaining a
written vote, the General Partner may require a response within a reasonable
specified time, but not less than fifteen (15) days, and failure to respond
in such time period shall constitute a vote which is consistent with the
General Partner's recommendation with respect to the proposal. Except as
provided in Section 7.3.A, 7.3.B, 13.1.C, 14.1.B, 14.1.C or 14.1.D, a
proposed amendment shall be adopted and be effective as an amendment hereto
if it is approved by the General Partner and it receives the Consent of
Partners holding a majority of the Percentage Interests of the Limited
Partners (including Limited Partner Interests held by the Company).
B. Notwithstanding Section 14.1.A, the General Partner shall have the
power, without the consent of the Limited Partners, to amend this Agreement
as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender
any right or power granted to the General Partner or any
Affiliate of the General Partner for the benefit of the
Limited Partners;
(2) to reflect the admission, substitution, termination, or
withdrawal of Partners in accordance with this Agreement;
(3) to set forth the designations, rights (including redemption
rights that differ from those specified in Section 8.6),
powers, duties, and preferences of Partnership Units or other
Partnership Interests issued pursuant to Section 4.2.A hereof;
(4) to reflect a change that is of an inconsequential nature and
does not adversely affect the Limited Partners in any material
respect, or to cure any ambiguity, correct or supplement any
provision in this Agreement not inconsistent with law or with
other provisions, or make other changes with respect to
matters arising under this Agreement that will not be
inconsistent with law or with the provisions of this
Agreement; and
(5) to satisfy any requirements, conditions, or guidelines
contained in any order, directive, opinion, ruling or
regulation of a federal or state agency or contained in
federal or state law.
The General Partner shall provide notice to the Limited Partners when any
action under this Section 14.1.B is taken.
C. Notwithstanding Section 14.1.A and 14.1.B hereof, this Agreement
shall not be amended without the Consent of each Partner adversely affected
if such amendment would (i) convert a Limited Partner's interest in the
Partnership into a General Partner Interest; (ii) modify the limited
liability of a Limited Partner in a manner adverse to such Limited Partner;
(iii) alter rights of the Partner to receive distributions pursuant to
Article 5 or Article 13, or the allocations specified in Article 6 (except as
permitted pursuant to Section 4.2 and Section 14.1.B(3) hereof); (iv) alter
or modify the Redemption Right and REIT Shares Amount as set forth in
Sections 8.6, and the related definitions, in a manner adverse to such
Partner; (v) cause the termination of the Partnership prior to the time set
forth in Sections 2.5 or 13.1; or (vi) amend this Section 14.1.C. Further,
no amendment may alter the restrictions on the General Partner's authority
set forth in Section 7.3.B without the Consent specified in that section.
D. Notwithstanding Section 14.1.A or Section 14.1.B hereof, the
General Partner shall not amend Sections 4.2.A, 7.5, 7.6, 11.2 or 14.2
without the Consent of Limited Partners holding a majority of the Percentage
Interests of the Limited Partners, excluding Limited Partner Interests held
by the General Partner.
Section 14.2. Meetings of the Partners
------------------------
A. Meetings of the Partners may be called by the General Partner and
shall be called upon the receipt by the General Partner of a written request
by Limited Partners (other than the Company) holding twenty percent (20%) or
more of the Partnership Interests. The request shall state the nature of the
business to be transacted. Notice of any such meeting shall be given to all
Partners not less than seven (7) days nor more than thirty (30) days prior to
the date of such meeting. Partners may vote in person or by proxy at such
meeting. Whenever the vote or Consent of the Partners is permitted or
required under this Agreement, such vote or Consent may be given at a meeting
of the Partners or may be given in accordance with the procedure prescribed in
Section 14.1.A hereof. Except as otherwise expressly provided in this
Agreement, the Consent of holders of a majority of the Percentage Interests
held by Limited Partners (including Limited Partnership Interests held by the
Company) shall control.
B. Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting if a written consent setting forth
the action so taken is signed by a majority of the Percentage Interests of
the Partners (or such other percentage as is expressly required by this
Agreement). Such consent may be in one instrument or in several instruments,
and shall have the same force and effect as a vote of a majority of the
Percentage Interests of the Partners (or such other percentage as is
expressly required by this Agreement). Such consent shall be filed with the
General Partner. An action so taken shall be deemed to have been taken at a
meeting held on the effective date so certified.
C. Each Limited Partner may authorize any Person or Persons to act for
him by proxy on all matters in which a Limited Partner is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. Every proxy must be signed by the Limited
Partner or his attorney-in-fact. No proxy shall be valid after the
expiration of eleven (11) months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure of the
Limited Partner executing it, such revocation to be effective upon the
Partnership's receipt of written notice of such revocation from the Limited
Partner executing such proxy.
D. Each meeting of the Partners shall be conducted by the General
Partner or such other Person as the General Partner may appoint pursuant to
such rules for the conduct of the meeting as the General Partner or such
other Person deems appropriate. Without limitation, meetings of Partners may
be conducted in the same manner as meetings of the shareholders of the
Company and may be held at the same time, and as part of, meetings of the
shareholders of the Company.
ARTICLE 15
GENERAL PROVISIONS
Section 15.1. Addresses and Notice
--------------------
Any notice, demand, request or report required or permitted to be given
or made to a Partner or Assignee under this Agreement shall be in writing and
shall be deemed given or made when delivered in person or when sent by first
class United States mail or by other means of written communication to the
Partner or Assignee at the address set forth in Exhibit A or such other
address of which the Partner shall notify the General Partner in writing.
Section 15.2. Titles and Captions
-------------------
All article or section titles or captions in this Agreement are for
convenience only. They shall not be deemed part of this Agreement and in no
way define, limit, extend or describe the scope or intent of any provisions
hereof. Except as specifically provided otherwise, references to "Articles"
and "Sections" are to Articles and Sections of this Agreement.
Section 15.3. Pronouns and Plurals
--------------------
Whenever the context may require, any pronoun used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
Section 15.4. Further Action
--------------
The parties shall execute and deliver all documents, provide all
information and take or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
Section 15.5. Binding Effect
--------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns.
Section 15.6. Creditors
---------
Other than as expressly set forth herein with respect to the
Indemnitees, none of the provisions of this Agreement shall be for the
benefit of, or shall be enforceable by, any creditor of the Partnership.
Section 15.7. Waiver
------
No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon a breach thereof shall constitute waiver of
any such breach or any other covenant, duty, agreement or condition.
Section 15.8. Counterparts
------------
This Agreement may be executed in counterparts, all of which together
shall constitute one agreement binding on all of the parties hereto,
notwithstanding that all such parties are not signatories to the original or
the same counterpart. Each party shall become bound by this Agreement
immediately upon affixing its signature hereto.
Section 15.9. Applicable Law
--------------
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware, without regard to the
principles of conflict of laws.
Section 15.10. Invalidity of Provisions
------------------------
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not be affected thereby.
Section 15.11. Entire Agreement
----------------
This Agreement contains the entire understanding and agreement among the
Partners with respect to the subject matter hereof and supersedes the Prior
Agreement and any other prior written or oral understandings or agreements
among them with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
GENERAL PARTNER:
Reckson Associates Realty Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
(CORPORATE SEAL)
LIMITED PARTNERS:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
as Attorney-in-Fact for the
Limited Partners
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, of Reckson Operating Partnership, L.P., by and among Reckson
Associates Realty Corp. and such Limited Partners. The undersigned agrees
that this signature page may be attached to any counterpart of said Amended
and Restated Agreement of Limited Partnership.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.▇.
Signature line for Limited Partner /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Manager
Address of Limited Partner ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Date: September 19, 1995
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
Signature line for Limited Partner /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address of Limited Partner c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: February 7, 1996
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
Signature line for Limited Partner /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇▇▇▇▇
Address of Limited Partner c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: January 2, 1996
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
Signature line for Limited Partner /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
▇▇▇▇ ▇▇▇▇▇▇
Address of Limited Partner c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: January 2, 1996
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
Signature line for Limited Partner /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address of Limited Partner c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: December 30, 1995
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
Signature line for Limited Partner /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
▇▇▇▇ ▇▇▇▇▇▇
Address of Limited Partner Austin Corporate Properties, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Date: February 22, 1996
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
TARRYTOWN CORPORATE CENTER
Signature line for Limited Partner /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
By: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: General Partner
Address of Limited Partner c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: February 22, 1996
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
TARRYTOWN CORPORATE CENTER IV, L.P.
By: JLH Realty Management Service, Inc.
Its General Partner
Signature line for Limited Partner /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
By: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
Address of Limited Partner c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: February 22, 1996
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
TARRYTOWN CORPORATE CENTER II
Signature line for Limited Partner /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
By: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: General Partner
Address of Limited Partner c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: February 22, 1996
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
COLONEL REALTIES
By: J.A.H. Realties, L.P.
Signature line for Limited Partner /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
By: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: General Partner
Address of Limited Partner c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: February 22, 1996
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
CHURCH STREET ASSOCIATES
By: J.A.H. Realties, L.P.
Signature line for Limited Partner /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
By: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: General Manager
Address of Limited Partner c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: February 22, 1996
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
▇▇▇▇▇▇▇ ENTERPRISES, INC.
Signature line for Limited Partner /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
By: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
Address of Limited Partner c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: February 22, 1996
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
▇▇▇▇▇▇▇ BUILDING CORPORATION
Signature line for Limited Partner /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
By: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
Address of Limited Partner c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: February 22, 1996
LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P., hereby becomes a party to
the Amended and Restated Agreement of Limited Partnership, dated as of June
2, 1995, and as amended on December 6, 1995, of Reckson Operating
Partnership, L.P., by and among Reckson Associates Realty Corp. and such
Limited Partners. The undersigned agrees that this signature page may be
attached to any counterpart of said Amended and Restated Agreement of Limited
Partnership.
JAH REALTIES, L.P.
By: JLH Realty Service Management, Inc.
Its General Partner
Signature line for Limited Partner /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
By: ▇▇▇ ▇. ▇▇▇▇▇▇▇
President
Address of Limited Partner c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date: April 9, 1996
Exhibit A
Partners' Contributions and Partnership Interests
Name and Address Cash Agreed Value of Total Partnership Percentage
of Partner Contribution Contributed Contribution Units Interest Property
Property
General Partner
Reckson Associates $333,273,463 $333,273,463 12,170,982 1% general
Realty Corp. partner
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 76.77% limited
Melville, New York partner
11747
Limited Partners
Melville Executive $646,947 $646,947 26,678
Center, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Nassau West Executive $200,000 $200,000 8,247
Center, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Expressway Executive $200,000 $200,000 8,247
Center, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Hauppauge Executive $243,963 $243,963 10,060
Center, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Atrium Executive $200,000 $200,000 8,247
Center, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Vanderbilt Industrial $952,113 $952,113 39,262
Park, Inc.
c/o Gross Construction
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ $2,593,101 $2,593,101 106,932
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $2,656,757 $2,656,757 109,557
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ $2,356,521 $2,356,521 97,176
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $2,333,434 $2,333,434 96,193
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ $2,380,771 $2,380,771 98,176
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ $2,356,521 $2,356,521 97,176
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Wildoro Associates $4,297,318 $4,297,318 177,209
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
The ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust $102,838 $102,838 4,241
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
The ▇▇▇▇▇▇▇ ▇▇▇▇ $102,838 $102,838 4,241
Rechler Trust
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
The ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $102,838 $102,838 4,241
Trust
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
The ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust $102,838 $102,838 4,241
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
The ▇▇▇▇ ▇▇▇▇▇▇▇ Trust $74,040 $74,040 3,053
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
The ▇▇▇▇▇ ▇▇▇▇▇▇▇ $74,040 $74,040 3,053
Rechler Trust
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ $10,209,142 $10,209,142 420,996
c/o Gross Construction
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ $341,045 $341,045 14,064
c/o Gross Construction
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ $133,336 $133,336 5,498
c/o Gross Construction
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ $133,336 $133,336 5,498
c/o Gross Construction
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ $6,267,677 $6,267,677 258,461
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ $387,533 $387,533 15,981
c/o DiFazio Electric,
Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Estate of ▇▇▇▇▇▇ $266,426 $266,426 10,987
▇▇▇▇▇▇▇
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Triangle Properties #3 $908,761 $908,761 37,475
c/o United Realty
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Say Associates $5,821 $5,821 240
c/o United Realty
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $725,901 $725,901 29,934
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ $1,680,025 $1,680,025 69,279
▇▇▇▇▇▇▇▇▇▇ Developments
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $704,949 $704,949 29,070
North Shore Towers
▇▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $1,255,475 $1,255,475 51,772
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
HMCC Associates $11,370,728 $11,370,728 468,896
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Reckom, Inc. $129,272 $129,272 5,331
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Reckson Associates $9,856,391 $9,856,391 363,805
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Vanderbilt Generation, $2,525,568 $2,525,568 104,147
L.P.
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ $29,762 $29,762 2,127
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ $29,762 $29,762 2,127
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ $27,337 $27,337 1,127
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $29,762 $29,762 2,127
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.▇. $3,192,997 $3,192,997 131,670
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $496,920 $496,920 20,494
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ $9,094 $9,094 375
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ $18,188 $18,188 750
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $48,500 $48,500 5,000
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ $99,975 $99,975 3,551
Austin Corporate
Properties, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Tarrytown Corporate $219,258 $219,258 7,800
Center
c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Tarrytown Corporate $331,670 $331,670 11,799
Center IV, L.P.
c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Tarrytown Corporate $3,089,851 $3,089,851 109,920
Center II
c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Colonel Realties $3,260,732 $3,260,732 115,999
c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Church Street $379,176 $379,176 13,489
Associates
c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ Enterpriese, $364,024 $364,024 12,950
Inc.
c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ Building $936,006 $936,006 33,298
Corporation
c/o JAH Realties, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
JAH Realties, L.P. $846,099 $846,099 29,961
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ Associates $773,004 $773,004 20,892
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
110 Bi-County $4,284,924 $4,284,924 102,022
Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇.▇. ▇▇▇▇ III $175,500 $175,500 4,000
c/o Reckson Associates
Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ Partners $38,097 $38,097 1,571
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ $291,000 $291,000 12,000
c/o Reckson Associates
Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ $291,000 $291,000 12,000
c/o Reckson Associates
Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ $97,000 $97,000 4,000
________________
________________
________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $36,375 $36,375 1,500
________________
________________
________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $84,875 $84,875 3,500
________________
________________
________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ $24,250 $24,250 1,000
Rabinwitz Foundation
________________
________________
________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $18,187 $18,187 750
________________
________________
________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $18,187 $18,187 750
________________
________________
________________
Triangle Properties $48,500 $48,500 2,000
________________
________________
________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $24,250 $24,250 1,000
________________
________________
________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $24,250 $24,250 1,000
________________
________________
________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $24,250 $24,250 1,000
(▇▇▇▇ ▇▇▇▇▇
a/c/f ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
under UGMA)
________________
________________
________________
▇▇▇▇ ▇▇▇▇▇▇ $48,500 $48,500 2,000
________________
________________
________________
▇▇▇ ▇▇▇▇▇▇▇ $24,250 $24,250 1,000
Reckson Associates
Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ $24,250 $24,250 1,000
(RSL Family
Partnership)
________________
________________
________________
▇▇▇▇▇▇ ▇▇▇▇▇ $24,250 $24,250 1,000
▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇
(joint ownership)
________________
________________
________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $2,425 $2,425 100
________________
________________
________________
▇▇▇▇▇ ▇▇▇▇▇▇▇ $24,250 $24,250 1,000
Reckson Associates
Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ $4,850 $4,850 200
(UGMA/CT)
________________
________________
________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ $4,850 $4,850 200
(UGMA/CT)
________________
________________
________________
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ $2,425 $2,425 ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
________________
________________
________________
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $3,031 $3,031 125
________________
________________
________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $3,031 $3,031 125
________________
________________
________________
▇▇▇▇▇ and ▇▇▇▇▇▇▇ $3,637 $3,637 ▇▇▇
▇▇▇▇▇▇▇▇▇
________________
________________
________________
▇▇▇▇ ▇▇▇▇▇▇▇▇ $36,375 $36,375 1,500
________________
________________
________________
▇▇▇▇ ▇▇▇▇▇▇ $2,667 $2,667 110
________________
________________
________________
▇▇▇▇▇▇▇▇ ▇▇▇▇ $4,850 $4,850 200
________________
________________
________________
▇▇▇▇▇▇ ▇▇▇▇▇▇ $48,500 $48,500 2,000
Reckson Associates
Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $24,250 $24,250 1,000
Reckson Associates
Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ $12,125 $12,125 500
Reckson Associates
Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ $97,000 $97,000 4,000
Reckson Associates
Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Subtotal (Limited __________ __________ _________ _____
Partners $89,001,350 $89,001,350 3,487,527 22.23%
excluding Reckson
Associates Realty
Corp.)
Total $333,273,463 $89,001,350 $422,278,813 15,658,509 100.00%
Exhibit B
Capital Account Maintenance
1. Capital Accounts of the Partners
--------------------------------
A. The Partnership shall maintain for each Partner a separate Capital
Account in accordance with the rules of Regulations Section
1.704-l(b)(2)(iv). Such Capital Account shall be increased by (i) the amount
of all Capital Contributions and any other deemed contributions made by such
Partner to the Partnership pursuant to this Agreement; and (ii) all items of
Partnership income and gain (including income and gain exempt from tax)
computed in accordance with Section 1.B hereof and allocated to such Partner
pursuant to Section 6.1.A of the Agreement and Exhibit C hereof, and
---------
decreased by (x) the amount of cash or Agreed Value of all actual and deemed
distributions of cash or property made to such Partner pursuant to this
Agreement; and (y) all items of Partnership deduction and loss computed in
accordance with Section 1.B hereof and allocated to such Partner pursuant to
Section 6.1.B of the Agreement and Exhibit C hereof.
---------
B. For purposes of computing the amount of any item of income, gain,
deduction or loss to be reflected in the Partners' Capital Accounts, unless
otherwise specified in this Agreement, the determination, recognition and
classification of any such item shall be the same as its determination,
recognition and classification for federal income tax purposes determined in
accordance with Section 703(a) of the Code (for this purpose all items of
income, gain, loss or deduction required to be stated separately pursuant to
Section 703(a)(1) of the Code shall be included in taxable income or loss),
with the following adjustments:
(1) Except as otherwise provided in Regulations Section
1.704-1(b)(2)(iv)(m), the computation of all items of income,
gain, loss and deduction shall be made without regard to any
election under Section 754 of the Code which may be made by
the Partnership, provided that the amounts of any adjustments
to the adjusted bases of the assets of the Partnership made
pursuant to Section 734 of the Code as a result of the
distribution of property by the Partnership to a Partner (to
the extent that such adjustments have not previously been
reflected in the Partners' Capital Accounts) shall be
reflected in the Capital Accounts of the Partners in the
manner and subject to the limitations prescribed in
Regulations Section 1.704-1(b)(2)(iv)(m)(4).
(2) The computation of all items of income, gain, and deduction
shall be made without regard to the fact that items described
in Sections 705(a)(1)(B) or 705(a)(2)(B) of the Code are not
includable gross income or are neither currently deductible
nor capitalized for federal income tax purposes.
(3) Any income, gain or loss attributable to the taxable
disposition of any Partnership property shall be determined as
if the adjusted basis of such property as of such date of
disposition were equal in amount to the Partnership's Carrying
Value with respect to such property as of such date.
(4) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such
taxable income or loss, there shall be taken into account
Depreciation for such fiscal year.
(5) In the event the Carrying Value of any Partnership Asset is
adjusted pursuant to Section 1.D hereof, the amount of any
such adjustment shall be taken into account as gain or loss
from the disposition of such asset.
C. Generally, a transferee (including an Assignee) of a Partnership
Unit shall succeed to a pro rata portion of the Capital Account of the
transferor; provided, however, that, if the transfer causes a termination of
the Partnership under Section 708(b)(1)(B) of the Code, the Partnership's
properties shall be deemed solely for federal income tax purposes, to have
been distributed in liquidation of the Partnership to the holders of
Partnership Units (including such transferee) and recontributed by such
Persons in reconstitution of the Partnership. In such event, the Carrying
Values of the Partnership properties shall be adjusted immediately prior to
such deemed distribution pursuant to Section 1.D(2) hereof. The Capital
Accounts of such reconstituted Partnership shall be maintained in accordance
with the principles of this Exhibit B.
---------
D. (1) Consistent with the provisions of Regulations Section
1.704-1(b)(2)(iv)(f), and as provided in Section 1.D(2), the
Carrying Value of all Partnership assets shall be adjusted
upward or downward to reflect any Unrealized Gain or
Unrealized Loss attributable to such Partnership property, as
of the times of the adjustments
provided in Section 1.D(2) hereof, as if such Unrealized Gain
or Unrealized Loss had been recognized on an actual sale of
each such property and allocated pursuant to Section 6.1 of
the Agreement.
(2) Such adjustments shall be made as of the following times: (a)
immediately prior to the acquisition of an additional interest
in the Partnership by any new or existing Partner in exchange
for more than a de minimis Capital Contribution; (b)
immediately prior to the distribution by the Partnership to a
Partner of more than a de minimis amount of property as
consideration for an interest in the Partnership; and (c)
immediately prior to the liquidation of the Partnership within
the meaning of Regulations Section 1.704-1(b)(2)(ii)(g),
provided, however, that adjustments pursuant to clauses (a)
and (b) above shall be made only if the General Partner
determines that such adjustments are necessary or appropriate
to reflect the relative economic interests of the Partners in
the Partnership.
(3) In accordance with Regulations Section 1.704- 1 (b)(2)(iv)(e),
the Carrying Value of Partnership assets distributed in kind
shall be adjusted upward or downward to reflect any Unrealized
Gain or Unrealized Loss attributable to such Partnership
property, as of the time any such asset is distributed.
(4) In determining Unrealized Gain or Unrealized Loss for purposes
of this Exhibit B, the aggregate cash amount and fair market
value of all Partnership assets (including cash or cash
equivalents) shall be determined by the General Partner using
such reasonable method of valuation as it may adopt, or in the
case of a liquidating distribution pursuant to Article 13 of
the Agreement, shall be determined and allocated by the
Liquidator using such reasonable methods of valuation as it
may adopt. The General Partner, or the Liquidator, as the
case may be, shall allocate such aggregate value among the
assets of the Partnership (in such manner as it determines in
its sole and absolute discretion to arrive at a fair market
value for individual properties).
E. The provisions of this Agreement (including this Exhibit B and
other Exhibits to this Agreement) relating to the maintenance of Capital
Accounts are intended to comply with Regulations Section 1.704-l(b), and
shall be interpreted and applied in a manner consistent with such
Regulations. In the event the General Partner shall determine that it is
prudent to modify (i) the manner in which the Capital Accounts, or any debits
or credits thereto (including, without limitation, debits or credits relating
to liabilities which are secured by contributed or distributed property or
which are assumed by the Partnership, the General Partner, or the Limited
Partners) are computed; or (ii) the manner in which items are allocated among
the Partners for federal income tax purposes, in order to comply with such
Regulations or to comply with Section 704(c) of the Code, the General Partner
may make such modification without regard to Article 14 of the Agreement,
provided that it is not likely to have a material effect on the amounts
distributable to any Person pursuant to Article 13 of the Agreement upon the
dissolution of the Partnership. The General Partner also shall (i) make any
adjustments that are necessary or appropriate to maintain equality between
the Capital Accounts of the Partners and the amount of Partnership capital
reflected on the Partnership's balance sheet, as computed for book purposes,
in accordance with Regulations Section 1.704-1(b)(2)(iv)(q); and (ii) make
any appropriate modifications in the event unanticipated events might
otherwise cause this Agreement not to comply with Regulations Section
1.704-1(b). In addition, the General Partner may adopt and employ such
methods and procedures for (i) the maintenance of book and tax capital
accounts; (ii) the determination and allocation of adjustments under Sections
704(c), 734 and 743 of the Code; (iii) the determination of Net Income, Net
Loss, taxable income, taxable loss and items thereof under this Agreement and
pursuant to the Code; (iv) the adoption of reasonable conventions and methods
for the valuation of assets and the determination of tax basis; (v) the
allocation of asset value and tax basis; and (vi) conventions for the
determination of cost recovery, depreciation and amortization deductions, as
it determines in its sole discretion are necessary or appropriate to execute
the provisions of this Agreement, to comply with federal and state tax laws,
and are in the best interest of the Partners.
2. No Interest
-----------
No interest shall be paid by the Partnership on Capital Contributions or
on balances in Partners' Capital Accounts.
3. No Withdrawal
-------------
No Partner shall be entitled to withdraw any part of his Capital
Contribution or his Capital Account or to receive any distribution from the
Partnership, except as provided in Articles 4, 5, 7 and 13 of the Agreement.
Exhibit C
Special Allocation Rules
1. Special Allocation Rules
------------------------
Notwithstanding any other provision of the Agreement or this Exhibit C,
the following special allocations shall be made in the following order:
A. Minimum Gain Chargeback. Notwithstanding the provisions of
-----------------------
Section 6.1 of the Agreement or any other provisions of this Exhibit C, if
---------
there is a net decrease in Partnership Minimum Gain during any Partnership
taxable year, then, subject to the exceptions set forth in Regulations
Sections 1.704-2(f)(2)-(5), each Partner shall be specially allocated items
of Partnership income and gain for such year (and, if necessary, subsequent
years) in an amount equal to such Partner's share of the net decrease in
Partnership Minimum Gain, as determined under Regulations Section 1.704-2(g).
Allocations pursuant to the previous sentence shall be made in proportion to
the respective amounts required to be allocated to each Partner pursuant
thereto. The items to be so allocated shall be determined in accordance with
Regulations Section 1.704-2(f)(6). This Section 1.A is intended to comply
with the minimum gain chargeback requirements in Regulations Section
1.704-2(f) and shall be interpreted consistently therewith. Solely for
purposes of this Section 1.A, each Partner's Adjusted Capital Account Deficit
shall be determined prior to any other allocations pursuant to Section 6.1 of
Partner Minimum Gain during such Partnership taxable year.
B. Partner Minimum Gain Chargeback. Notwithstanding any other
-------------------------------
provision of Section 6.1 of this Agreement or any other provisions of this
Exhibit C (except Section 1.A hereof), if there is a net decrease in Partner
Minimum Gain attributable to a Partner Nonrecourse Debt during any
Partnership taxable year, then, subject to the exceptions referred to in
Regulations Section 1.704-2(i)(4), each Partner who has a share of the
Partner Minimum Gain attributable to such Partner Nonrecourse Debt,
determined in accordance with Regulations Section 1.704-2(i)(5), shall be
specially allocated items of Partnership income and gain for such year (and,
if necessary, subsequent years) in an amount equal to such Partner's share of
the net decrease in Partner Minimum Gain attributable to such Partner
Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i)(5). Allocations pursuant to the previous sentence shall be made
in proportion to the respective amounts required to be allocated to each
Partner pursuant thereto. The items to be so allocated shall be determined
in accordance with Regulations Section 1.704-2(i)(4). This Section 1.B is
intended to comply with the minimum gain chargeback requirement in such Section
of the Regulations and shall be interpreted consistently therewith. Solely for
purposes of the Section 1.B, each Partner's Adjusted Capital Account Deficit
shall be determined prior to any other allocations pursuant to Section 6.1 of
the Agreement or this Exhibit with respect to such Partnership taxable year,
other than allocations pursuant to Section 1.A hereof.
C. Qualified Income Offset. In the event any Partner unexpectedly
-----------------------
receives any adjustments, allocations or distributions described in
Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), and after giving effect to the allocations required
under Sections 1.A and 1.B hereof such Partner has an Adjusted Capital
Account Deficit, items of Partnership income and gain (consisting of a pro
rata portion of each item of Partnership income, including gross income and
gain for the Partnership taxable year) shall be specially allocated to such
Partner in an amount and manner sufficient to eliminate, to the extent
required by the Regulations, its Adjusted Capital Account Deficit created by
such adjustments, allocations or distributions as quickly as possible. This
Section 1.C is intended to constitute a qualified income offset under
Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted
consistently therewith.
D. Nonrecourse Deductions. Nonrecourse Deductions for any
----------------------
Partnership taxable year shall be allocated to the Partners in accordance
with their respective Percentage Interests. If the General Partner
determines in its good faith discretion that the Partnership's Nonrecourse
Deductions must be allocated in a different ratio to satisfy the safe harbor
requirements of the Regulations promulgated under Section 704(b) of the Code,
the General Partner is authorized, upon notice to the Limited Partners, to
revise the prescribed ratio to the numerically closest ratio for such
Partnership taxable year which would satisfy such requirements.
E. Partner Nonrecourse Deductions. Any Partner Nonrecourse
------------------------------
Deductions for any Partnership taxable year shall be specially allocated to
the Partner who bears the economic risk of loss with respect to the Partner
Nonrecourse Debt to which such Partner Nonrecourse Deductions are
attributable in accordance with Regulations Section 1.704-2(i).
F. Code Section 754 Adjustments. To the extent an adjustment to the
----------------------------
adjusted tax basis of any Partnership asset pursuant to Section 734(b) or
743(b) of the Code is required, pursuant to Regulations Section
1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts,
the amount of such adjustment to the Capital Accounts shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis), and such item of gain or loss shall be
specially allocated to the Partners in a manner consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to such
Section of the Regulations.
G. Curative Allocations. The allocations set forth in Section 1.A
--------------------
through 1.F of this Exhibit C (the "Regulatory Allocations") are intended to
comply with certain requirements of the Regulations under Section 704(b) of
the Code. The Regulatory Allocations may not be consistent with the manner
in which the Partners intend to divide Partnership distributions.
Accordingly, the General Partner is hereby authorized to divide other
allocations of income, gain, deduction and loss among the Partners so as to
prevent the Regulatory Allocations from distorting the manner in which
Partnership distributions will be divided among the Partners. In general,
the Partners anticipate that, if necessary, this will be accomplished by
specially allocating other items of income, gain, loss and deduction among
the Partners so that the net amount of the Regulatory Allocations and such
special allocations to each person is zero. However, the General Partner
will have discretion to accomplish this result in any reasonable manner;
provided, however, that no allocation pursuant to this Section 1.G shall
cause the Partnership to fail to comply with the requirements of Regulations
Sections 1.704-1(b)(2)(ii)(d), -2(e) or -2(i).
2. Allocations for Tax Purposes
----------------------------
A. Except as otherwise provided in this Section 2, for federal income
tax purposes, each item of income, gain, loss and deduction shall be
allocated among the Partners in the same manner as its correlative item of
"book" income, gain, loss or deduction is allocated pursuant to Section 6.1
of the Agreement and Section 1 of this Exhibit C.
B. In an attempt to eliminate Book-Tax Disparities attributable to a
Contributed Property or Adjusted Property, items of income, gain, loss, and
deduction shall be allocated for federal income tax purposes among the
Partners as follows:
(1) (a) In the case of a Contributed Property, such items
attributable thereto shall be allocated among the
Partners, consistent with the principles of Section
704(c) of the Code and the Regulations thereunder, to
take into account the variation between the 704(c) Value
of such property and its adjusted basis at the time of
contribution; and
(b) any item of Residual Gain or Residual Loss attributable
to a Contributed Property shall be allocated among the
Partners in the same manner as its correlative item of
"book" gain or loss is allocated pursuant to Section 6.1
of the Agreement and Section 1 of this Exhibit C.
---------
(2) (a) In the case of an Adjusted Property, such items shall
(1) first, be allocated among the Partners in a manner
consistent with the principles of Section 704(c) of the
Code and the Regulations thereunder to take into account
the Unrealized Gain or Unrealized Loss attributable to
such property and the allocations thereof pursuant to
Exhibit B; and
(2) second, in the event such property was originally a
Contributed Property, be allocated among the Partners in
a manner consistent with Section 2.B(1) of this Exhibit C;
---------
and
(b) any item of Residual Gain or Residual Loss attributable
to and Adjusted Property shall be allocated among the
Partners in the same manner its correlative item of
"book" gain or loss is allocated pursuant to Section 6.1
of the Agreement and Section 1 of this Exhibit C.
---------
C. To the extent that the Treasury Regulations promulgated pursuant to
Section 704(c) of the Code permit the Partnership to utilize alternative
methods to eliminate the disparities between the Carrying Value of property
and its adjusted basis, the General Partner shall have the authority to elect
the method to be used by the Partnership and such election shall be binding
on all Partners.
3. No Withdrawal
-------------
No Partner shall be entitled to withdraw any part of his Capital
Contribution or his Capital Account or to receive any distribution from the
Partnership, except as provided in Articles 4, 5, 8 and 13 of the Agreement.
Exhibit D
Notice of Redemption
The undersigned Limited Partner hereby irrevocably requests Reckson
Operating Partnership, L.P., a Delaware limited partnership (the
"Partnership") to redeem ______________ Partnership Units in the Partnership
in accordance with the terms of the Amended and Restated Agreement of Limited
Partnership of the Partnership and the Redemption Right referred to therein;
and the undersigned Limited Partnership irrevocably (i) surrenders such
Partnership Units and all right, title and interest therein; and (ii) directs
that the Cash Amount or REIT Shares Amount (as determined by the General
Partner) deliverable upon exercise of the Redemption Right be delivered to
the address specified below, and if REIT Shares are to be delivered, such
REIT Shares be registered or placed in the name(s) and at the address(es)
specified below. The undersigned hereby, represents, warrants, and certifies
that the undersigned (a) has marketable and unencumbered title to such
Limited Partnership Units, free and clear of the rights or interests of any
other person or entity; (b) has the full right, power, and authority to
request such redemption and surrender such Partnership Units as provided
herein; and (c) has obtained the consent or approval of all person or
entities, if any, having the right to consent or approve such redemption and
surrender of Units. The undersigned Limited Partner further agrees that, in
the event that any state or local property tax is payable as a result of the
transfer of its Partnership Units to the Partnership or the General Partner,
the undersigned Limited Partner shall assume and pay such transfer tax.
Dated: ___________________________
Name of Limited Partner: __________________________________
Please Print
__________________________________
(Signature of Limited Partner)
__________________________________
(Street Address)
__________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
__________________________________
If REIT Shares are to be issued, issue to:
Name: ____________________________
Please insert social security number: __________