Exhibit 10.1
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
ONE COURT SQUARE HOLDINGS LLC
By and Between
One Court Square Member LLC
and
One Court Square Investor, LLC
Dated as of November 30, 2005
AMENDED AND RESTATED OPERATING
AGREEMENT
OF
ONE COURT SQUARE HOLDINGS LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT of One Court Square
Holdings LLC (the "LLC") is entered into as of November 30, 2005, between ONE
COURT SQUARE MEMBER LLC, a Delaware limited liability company, having an
office c/o Reckson Associates, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(together with its permitted successors and assigns, "Reckson") and ONE COURT
SQUARE INVESTOR, LLC, a Delaware limited liability company, having an address
c/o ▇.▇. ▇▇▇▇▇▇ Investment Management Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (together with its permitted successors and assigns, "Investor").
Reckson and Investor shall hereinafter collectively be referred to as the
"Members". All capitalized terms not defined in the recitals below shall have
the meanings ascribed to them in Article I of this Agreement.
WHEREAS, the LLC was formed pursuant to the filing of a
Certificate of Formation (as the same may be amended from time to time, the
"Certificate") on June 22, 2005 and Reckson OP entered into that certain
Operating Agreement (the "Original LLC Agreement") made as of August 3, 2005
to govern the operation, management and affairs of the LLC.
WHEREAS, the LLC is the holder of all of the membership interests
in Reckson Court Square, LLC, a Delaware limited liability company (the
"Property Owner") which owns the fee interest in the land described on Exhibit
A (the "Land") and the building thereon commonly known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Building", and collectively with the Land,
the "Property").
WHEREAS, as of the date hereof, pursuant to a certain Assignment
and Admission Agreement between Reckson Operating Partnership, L.P., a
Delaware limited partnership (together with any successor thereto by merger or
acquisition of all or substantially all of its assets, reorganization or
otherwise, "Reckson OP") and Investor, Reckson OP has assigned to Investor an
Interest in the LLC which has the Initial Percentage Interest and the rights
and obligations set forth herein in exchange for $109,212,529.00 plus the
payment of all transfer taxes in connection with such assignment.
WHEREAS, as a result of the foregoing, Investor is being admitted
as a Member of the LLC as of the date hereof with a seventy percent (70%)
Percentage Interest.
WHEREAS, as of the date hereof, pursuant to a certain Assignment
and Admission Agreement between Reckson OP and Reckson, Reckson OP has
assigned to Reckson an Interest in the LLC which has the Initial Percentage
Interest and the rights and obligations set forth herein.
WHEREAS, as a result of the foregoing, Reckson is being admitted
as a Member of the LLC as of the date hereof with a thirty percent (30%)
Percentage Interest.
In order to reflect the foregoing and to reflect the agreement of
the parties to the foregoing and the other matters set forth below, the
parties hereby amend and restate the Original LLC Agreement as follows:
ARTICLE I
DEFINITIONS
Unless otherwise specified, all references herein to Articles or
Sections are to Articles or Sections of this Agreement. Unless the context
otherwise specifies or requires, capitalized terms used herein shall apply
equally to both the singular and the plural forms of such capitalized terms
and shall have the following respective meanings:
2nd Anniversary Date: As defined in Section 9.02(a).
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇: As defined in Section 7.05(f).
Acceptable Advisor: As defined in Section 7.13.
Additional L/C Costs: As defined in Section 6.10(I).
Adjusted Capital Account Deficit: Means, with respect to any
Member, the deficit balance, if any, in the Member's Capital Account, as of a
specified time, after giving effect to the following adjustments:
(a) credit to such Capital Account any amounts that such
Member is obligated to restore pursuant to Treasury Regulations Section
1.704-1(b)(2)(ii)(c) and the penultimate sentences of Treasury
Regulations Section 1.704-2(g)(1) and Treasury Regulations Section
1.704-2(i)(5); and
(b) debit to such Capital Account the items described in
Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the provisions of Treasury Regulations Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
Administrative Member: Means whichever of Investor Members or
Reckson Members is the entity entitled to exercise the rights of the
Administrative Member under this Agreement. Initially, Reckson shall be the
Administrative Member of the LLC.
Administrative Member Default: As defined in Section 7.03(b).
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Affiliate: When used with reference to a specified Person, means
any other Person that (a) directly or indirectly through one or more
intermediaries controls or is controlled by or is under common control with
the specified Person, (b) is a general partner or managing member of (i) the
Person in question, (ii) any general partner or managing member of the Person
in question or (iii) any other Person described in clause (a) above with
respect to the Person in question or (c) owns, is owned by, directly or
indirectly, or is under common ownership with, directly or indirectly, 25% or
more of the equity interests of the specified Person. Notwithstanding the
foregoing, neither the Reckson Members nor the Investor Members shall be
deemed to be Affiliates of any Applicable Entity.
Affiliate Agreement: As defined in Section 7.04(b).
Affiliate Agreement Summary: As defined in Section 7.04(a).
Agreement: Means this Amended and Restated Operating Agreement, as
it may be further amended or supplemented from time to time.
Annual Report: As defined in Section 8.04(a).
Applicable Entities: Means the LLC and the Property Owner,
individually or collectively.
Applicable Interest: As defined in Section 9.02(a)(i)(A).
Applicable Loan Documents: Means the documents governing each
Applicable Loan.
Applicable Loans: Means, collectively (a) the GACC Loan and (b)
other indebtedness now or hereafter entered into by any Applicable Entity
which may be (x) unsecured; or (y) secured by (I) a mortgage lien on the
Property (collectively, with the GACC Loan, the "Mortgage Loans") and/or (II)
the membership interests of one or more Applicable Entities.
Approved Agent: Means, subject to the last four sentences of this
definition, ▇▇▇▇▇▇▇ & Wakefield, Inc., CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ LaSalle,
Colliers ABR and ▇▇▇▇▇ Interests Limited Partnership (and their respective
successors) (collectively, the "Initial Agents"). In the event that less than
three of the above Persons shall (i) be in existence at the time in question,
(ii) be managing Class A commercial space in Manhattan or (iii) cease to be an
"Approved Agent" under the penultimate sentence of this paragraph, an
"Approved Agent" shall be any of the remaining Initial Agents, plus the next
largest managing agents that are not Competitors such that the list of
Approved Agents shall always consist of at least 3 agents. The largest
managing agents shall be determined by the amount of Class A office space
managed in Manhattan at such time. The parties acknowledge that one or more of
the Initial Agents may currently be a "Competitor". Notwithstanding the
foregoing, so long as 75% or more of the space managed by an Initial Agent is
not contained in Agent-Owned Buildings, each such Initial Agent shall be
deemed to be an Approved Agent. An "Agent-Owned Building" is a building in
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which more than 7%2% of the direct or indirect ownership interests are held by
an Initial Agent or its Affiliates.
Back-Up L/C's: As defined in Section 6.10.
Bank Account: As defined in Section 8.03.
Bankrupt: A Person shall be deemed "Bankrupt" upon, (i) the entry
of a final, nonappealable decree or order for relief of the Person by a court
of competent jurisdiction in any involuntary case involving the Person under
any bankruptcy, insolvency or other similar law now or hereafter in effect;
(ii) the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or other similar agent for the Person or for all or substantially
all of the Person's assets or property which appointment is not discharged
within 90 days; (iii) the ordering of the winding up or liquidation of the
Person's affairs (in connection with an insolvency or bankruptcy); (iv) the
filing with respect to the Person of a petition in any such involuntary
bankruptcy case, which petition remains undismissed for a period of 90 days;
(v) the commencement by the Person of a voluntary case under any bankruptcy,
insolvency or other similar law now or hereafter in effect; (vi) the consent
by the Person to the entry of an order for relief in an involuntary case under
any such law or to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar agent
for the Person or for all or substantially all of the Person's assets or
property; (vii) the making by the Person of any general assignment for the
benefit of creditors; or (viii) the admission in writing by the Person of its
inability to pay its debts as such debts become due.
Binding Property Notice: As defined in Section 10.01(a).
Book Value: Means, with respect to any LLC asset, the asset's
adjusted basis for federal income tax purposes, except that, in accordance
with the rules set forth in Regulations Section 1.704-1(b)(iv):
(a) The initial Book Value of the assets of the LLC as of the date
of their contribution or deemed contribution shall be their respective gross
fair market values at such time as reasonably determined by the Management
Committee;
(b) The Book Value of any asset distributed or deemed distributed
by the LLC to any Member shall be adjusted immediately prior to such
distribution to equal its gross fair market value at such time as reasonably
determined by the Management Committee;
(c) The Book Values of all LLC assets may be adjusted in the
discretion of the Management Committee to equal their respective gross fair
market values, as reasonably determined by the Management Committee, as of the
following times:
(i) the date of the acquisition of an additional Interest in
the LLC by any new or existing Member in exchange for more than a de minimis
contribution to the capital of the LLC;
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(ii) upon any distribution in liquidation of the LLC, or the
distribution by the LLC to a retiring or continuing Member of more than a de
minimis amount of money or other assets of the LLC in reduction of such
Member's Interest in the LLC; or
(iii) upon a Major Capital Event.
(d) The Book Values of all LLC assets shall be adjusted to reflect
any adjustments to the adjusted basis of any assets of the LLC pursuant to
Sections 734(b) or 743(b) of the Code, but only to the extent that such
adjustments are required to be taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); and
(e) If the Book Value of an asset has been determined pursuant to
clauses (a), (c) or (d) above, such Book Value shall thereafter be adjusted
for depreciation and amortization deductions computed based on the asset's
Book Value as so determined, and not on the asset's adjusted tax basis.
The foregoing definition of Book Value is intended to comply with
the provisions of Regulations Section 1.704-1(b)(2)(iv) and shall be
interpreted and applied consistently therewith.
Budgets: As defined in Section 7.05(a).
Building: As defined in the Recitals hereto.
Business Day: Means Monday through Friday of each week, except
that a legal holiday recognized as such by the Government of the United States
and any other day on which banks in the State of New York are required or
permitted to be closed shall not be regarded as a business day.
Business Plan: As defined in Section 7.05(a).
Buy/Sell Closing Date: As defined in Section 10.02(b).
Buy/Sell Deposit: As defined in Section 10.02(a).
Buy/Sell Escrow Agent: As defined in Section 10.02(a).
Buy/Sell Offer Notice: As defined in Section 10.02(a).
Buy/Sell Price: As defined in Section 10.02(a).
Buy/Sell Response Notice: As defined in Section 10.02(a).
Buy/Sell Transaction: As defined in Section 10.02(a).
Capital Account: Means, with respect to a Member, the capital
account of such Member maintained pursuant to Section 6.01, including all
additions thereto and subtractions therefrom pursuant to this Agreement.
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Capital Budget: As defined in Section 7.05(a).
Capital Call Notice: As defined in Section 5.02(a).
Capital Contribution: Means, with respect to each Member, the
amount contributed or deemed contributed by such Member as set forth in
Section 5.01(a), as the same may be increased to reflect additional Capital
Contributions made in accordance with Section 5.02(a), or increased or
decreased pursuant to Section 5.02(b) (but in no event shall Capital
Contributions be deemed to be increased by amounts placed into the Working
Capital Account unless and until such amounts shall be applied to obligations
of the Property Owner or the LLC to the extent any amount so applied is not
returned into the Working Capital Account within sixty (60) days of such
application).
Capital Improvements: Means any renewals, replacements and
improvements to the Property which in accordance with GAAP must be
capitalized.
Capital Reserves: Means reserve funds reasonably established by
the Administrative Member in connection with a Major Capital Event or upon
dissolution and liquidation of the LLC.
Cash Reserves: Means reserve funds (other than Capital Reserves),
including the Working Capital Account, established by the Administrative
Member to pay the LLC Charges of each Applicable Entity as set forth in the
Business Plan, or as reasonably determined by the Administrative Member.
Certificate: As defined in the Recitals hereto.
Citibank: Means Citibank, N.A., a national banking association, or
any successor tenant under the Citibank Lease.
Citibank Lease: Means that certain Lease, dated as of May 12,
2005, between the Property Owner, as landlord, and Citibank, as tenant, with
respect to the premises commonly known as One Court Square, ▇▇-▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as amended by that certain First
Amendment to Lease dated as of August 3, 2005 between the Property Owner and
Citibank, as the same may be further amended, restated, replaced, supplemented
or otherwise modified from time to time.
Citibank Surrender Option: Means the option of Citibank to
surrender portions of the premises demised under the Citibank Lease pursuant
to Article 4 of the Citibank Lease.
Clause (iii) Default: As defined in Section 7.03.
Clause (iii) Default Notice: As defined in Section 7.03.
Code: Means the Internal Revenue Code of 1986, as in effect and
hereafter amended, and, unless the context otherwise requires, applicable
regulations thereunder. Any
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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.
Competitor: As defined in Section 9.02(c)(ii).
Contract Date: As defined in Section 10.01(a).
Contributing Member: As defined in Section 5.02(b)(i).
Contributing Member Contribution: As defined in Section
5.02(b)(ii).
Control: Means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or similar
ownership interests, by contract or otherwise.
Conversion Date: As defined in Section 5.02(b)(ii).
CPI: Means the Consumer Price Index for All Urban Consumers
(CPI-U), All Items, applicable to the N.Y.-Northeastern N.J. area (1982-84 =
100) for urban wage earners and clerical workers, as published by the U.S.
Department of Labor, Bureau of Labor Statistics. If such Consumer Price Index
is discontinued or otherwise revised during the term of this Agreement, the
Consumer Price Index for All Urban Consumers (CPI-U), All Items, U.S. City
Average (1982-84 = 100) for urban wage earners and clerical workers, as
published by the U.S. Department of Labor, Bureau of Labor Statistics, shall
be used, and if such national index is discontinued or otherwise revised
during the tetin of this Agreement, such other government index or computation
with which it is replaced shall be used in order to obtain substantially the
same result as would be obtained if the Consumer Price Index had not been
discontinued or revised.
CPI Increase: Means, as of any date during the term of this
Agreement (such date, the "Determination Date"), the percent of increase, if
any, in the CPI for the month in which the applicable Determination Date
occurs over the CPI for (x) December, 2005 or (y) with respect to the "CPI
Increase" referenced in Section 7.05(e), January of the Fiscal Year in
question.
CPR: As defined in Section 15.01(a).
Comments: As defined in Section 7.05(b).
Damages: As defined in Section 12.01.
Default Amount: As defined in Section 5.02(b)(i).
Default Loan: As defined in Section 5.02(b)(i).
Default Loan Rate: Means four percent (4%) per annum above the
Prime Rate.
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Deposit: As defined in Section 9.02(a)(C).
Determination Date: As defined in the definition of "CPI
Increase".
Dispute Notice: As defined in Section 9.02(c)(ii).
Environmental Laws: Means all applicable federal, state or local
laws, ordinances, requirements and regulations (including consent decrees and
administrative orders) relating to the protection of the environment,
including, but not limited to, the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the federal Superfund
Amendments and Reauthorization Act of 1986, the federal Resource Conservation
and Recovery Act of 1976, the federal Clean Air Act, the federal Water
Pollution Control Act and federal Clean Water Act of 1987, the federal
Insecticide, Fungicide and Rodenticide Act, the federal Pesticide Act of 1978,
the federal Toxic Substances Control Act, the federal Safe Drinking Water Act,
the federal Hazardous Materials Transportation Act, and all amendments
thereto.
ERISA: Means the Employee Retirement Income Security Act of 1974,
as is in effect and hereafter amended, and, unless the context otherwise
requires, applicable regulations thereunder. Any reference herein to a
specific section or sections of ERISA shall be deemed to include a reference
to any corresponding provision of future law.
Escrow Agent: As defined in Section 9.02(a)(i)(C).
Exiting Member: As defined in Section 12.04.
Existing Recourse Obligations: Means any recourse obligations
under any Mortgage Loans, including without limitation, the GACC Recourse
Obligations if the GACC Loan is in effect.
First Offer Notice: As defined in Section 9.02(a)(i)(A).
Fiscal Year: As defined in Section 8.02.
GACC: As defined in Section 12.01.
GACC Default Rate: Means the "Default Rate", as such term is
defined in the GACC Loan Agreement.
GACC Guaranty: As defined in Section 12.01.
GACC Loan: As defined in Section 12.01.
GACC Loan Agreement: As defined in Section 12.01.
GACC Loan Costs: As defined in Section 4.01(e).
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GACC Recourse Obligations: As defined in Section 12.01.
GAAP: Means accounting principles generally accepted in the United
States, consistently applied.
Group Agent: As defined in Section 7.08(b).
Group Members: As defined in Section 7.08.
Hazardous Materials: Means oil and petroleum products, asbestos,
polychlorinated biphenyls, radon and urea formaldehyde, and all other
materials classified as hazardous or toxic under any Environmental Law.
I&G Fund: Means the fund from time to time marketed as the "▇.▇.
▇▇▇▇▇▇ U.S. Real Estate Income and Growth Fund".
Identity Notice: As defined in Section 9.02(c)(ii).
Impositions: Means all taxes (including all ad valorem, sales
(including those imposed on lease rentals), use, single business, gross
receipts, value added, intangible transaction, privilege or license or similar
taxes), governmental assessments (including all assessments for public
improvements or benefits), water, sewer or other rents and charges, excises,
levies, fees (including license, permit, inspection, authorization and similar
fees), and all other governmental charges, in each case whether general or
special, ordinary or extraordinary, or foreseen or unforeseen, of every
character in respect of the Property and/or any rents in connection therewith
(including all interest and penalties thereon), which at any time may be
assessed or imposed on or in respect of or be a lien upon (a) the Property
Owner (including all income, franchise, single business or other taxes imposed
on the Property Owner for the privilege of doing business in the jurisdiction
in which the Property is located), (b) the Property, or any part thereof, or
any Rents received therefrom or any estate, right, title or interest therein
or (c) any occupancy, operation, use or possession of, or sales from, or
activity conducted on, or in connection with the Property or the leasing or
use of all or any part thereof.
Indemnitees: As defined in Section 14.22(a).
Indemnity Laws: As defined in Section 14.22(d).
Initial Agent: As defined in the definition of "Approved Agent".
Initial Percentage Interest: Means (i) for Reckson, thirty percent
(30%) and (ii) for Investor, seventy percent (70%).
Interest: As to a Member, means all of the interest of that Member
in the LLC, including, without limitation, such Member's (i) right to an
allocable share of the income, gains, losses and deductions of the LLC in
accordance with this Agreement, and (ii) right to a distributive share of LLC
Assets.
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Internal Rate of Return: Means, with respect to an investment, the
discount rate at which the net present value of all cash in-flows relating to
such investment is equal to the net present value of all cash out-flows
(whether from operating cash flow or capital transaction proceeds) from such
investment. A Member shall be deemed to have received a specified Internal
Rate of Return with respect to any Capital Contributions and, with respect to
Investor, the Transfer Tax Amount, when such Member has received a return of
all of such Capital Contributions and, with respect to Investor, the Transfer
Tax Amount, made by such Member plus a cumulative return on such Capital
Contributions and, with respect to Investor, the Transfer Tax Amount, at the
specified rate per annum, compounded monthly, calculated commencing on the
date on which such Capital Contributions and, with respect to Investor, the
Transfer Tax Amount, are made, taking into account the timing and amounts of
all previous distributions of Net Ordinary Cash Flow and Net Extraordinary
Cash Flow made by the Company to such Member pursuant to the provisions of
Section 6.05(b), Section 6.05(c) and Section 11.03 and the timing and amounts
of all previous Capital Contributions made to the Company by such Member.
Solely for purposes of determining Investor's Internal Rate of Return,
Investor shall be treated as having made a Capital Contribution equal to the
Transfer Tax Amount on the date of this Agreement and any distributions to
Investor that are paid to Reckson under Section 6.08 and Section 11.04 as the
Venture Administration Fee or the Liquidation Fee shall not be treated as
distributed to Investor.
Investor: As defined in the Preamble to this Agreement.
Investor Committee Member: As defined in Section 7.01(a).
Investor Entity: Means each of I&G Fund, each constituent entity
comprising the I&G Fund, NAPI, SSPF, following a Transfer pursuant to Section
9.01(a)(iii), SSPF Replacement Trust, and any Successor Principal to any of
the foregoing.
Investor Interest Amount: As defined in Section 10.02(a).
Investor Knowledge Individuals: As defined in Section 13.01(a).
Investor Members: Means Investor and each of the Members under
this Agreement from time to time which is a permitted transferee of Investor.
Investor Recourse Party: Means Investor and any replacement
approved by the Reckson Members.
Investor's Gross Investment: Means $347,010,726.00.
JPMIM: Means (i) ▇.▇. ▇▇▇▇▇▇ Investment Management Inc. and (ii)
its successor following a merger, consolidation or sale of all or
substantially all of its assets.
Land: As defined in the Recitals hereto.
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Lease: Means the Citibank Lease and any other lease, license or
other agreement now in effect or hereafter entered into which is binding upon
the Property Owner and which permits the use and occupancy of any portion of
the Property by third parties.
Leasing Guidelines: As defined in Section 7.05(a).
Legal Requirements: Means all laws, statutes, or ordinances,
including building codes, subdivision, zoning regulations, urban redevelopment
plans, fire, health, safety, pollution, environmental protection and safety
laws, OSHA requirements, and the orders, rules, regulations, directives and
requirements of any federal, state or local governmental or quasi-governmental
authority which are applicable to the Property, any of the Property Owner or
the LLC; all requirements, obligations, terms, restrictions, provisions and
conditions of all covenants, conditions, easements, rights of way, instruments
now or hereafter applicable to the Property whether or not of record; and all
rules, regulations and requirements of any insurance company insuring all or
any part of the Property.
L/C Contributing Member: As defined in Section 6.10(I).
L/C Draw Amount: As defined in Section 6.10(11).
L/C Defaulting Member: As defined in Section 6.10.
L/C Obligation: As defined in Section 6.10.
L/C Principal Amount: As defined in Section 6.10(I).
LIBOR: Means the rate (expressed as a percentage per annum and
rounded upward, if necessary, to the next nearest 1/8 of 1%) for deposits in
U.S. dollars, for a one-month period, that appears on Telerate Page 3750 (or
the successor thereto) as of 11:00 a.m., London time, on the related
determination date. If such rate does not appear on Telerate Page 3750 as of
11:00 a.m., London time, on such determination date, LIBOR shall be the
arithmetic mean of the offered rates (expressed as a percentage per annum) for
deposits in U.S. dollars for a one-month period that appear on the Reuters
Screen Libor Page as of 11:00 a.m., London time, on such determination date,
if at least two such offered rates so appear. If fewer than two such offered
rates appear on the Reuters Screen Libor Page as of 11:00 a.m., London time,
on such determination date, the parties shall request the principal London
office of any four major reference banks in the London interbank market
selected by the parties to provide such bank's offered quotation (expressed as
a percentage per annum) to prime banks in the London interbank market for
deposits in U.S. dollars for a one-month period as of 11:00 a.m., London time,
on such determination date for the amounts of not less than U.S. $1,000,000.
If at least two such offered quotations are so provided, LIBOR shall be the
arithmetic mean of such quotations. If fewer than two such quotations are so
provided, the parties shall request any three major banks in New York City
selected by the parties to provide such bank's rate (expressed as a percentage
per annum) for loans in U.S. dollars to leading European banks for a one-month
period as of approximately 11:00 a.m., New York City time on the applicable
determination date for amounts
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of not less than U.S. $1,000,000. If at least two such rates are so provided,
LIBOR shall be the arithmetic mean of such rates.
LIBOR Default Rate: Means five hundred (500) basis points above
LIBOR.
Liquidation Fee: As defined in Section 11.04.
Listed Agents: As defined in Section 7.04(c).
LLC: As defined in the Preamble to this Agreement.
LLC Accountants: Means Ernst & Young, LLP or, if the
Administrative Member determines to replace Ernst & Young, LLP, such other
nationally recognized firm of independent certified public accountants
selected by the Administrative Member and approved by the Management Committee
in accordance with Section 7.02(g).
LLC Act: Means the Delaware Limited Liability Company Act (as the
same may be amended from time to time).
LLC Assets: Means all assets and property, whether tangible or
intangible and whether real, personal or mixed, at any time owned by or held
for the benefit of the LLC but not including the assets and the property held
by the Property Owner.
LLC Charges: Means, for a given period of time, a sum equal to the
aggregate of the expenditures, charges and costs actually paid by the LLC
during such period of time in accordance with the terms of this Agreement,
determined on a cash basis of accounting, including, without duplication or
limitation:
(a) all payments of principal and interest on loans (including
Applicable Loans) to the LLC and the Property Owner;
(b) all taxes and assessments imposed upon the LLC and the
Property Owner;
(c) additions to the Cash Reserves during such period of time;
(d) the fees and expenses of attorneys, accountants, architects,
engineers, appraisers and other professionals retained by or on behalf of the
LLC and the Property Owner in accordance with the teens hereof;
(e) amounts contributed or loaned to the Property Owner by the
LLC; and
(f) all other appropriate and necessary costs and expenses of (i)
the LLC incurred in accordance with this Agreement and (ii) the Property Owner
in accordance with the Property Owner LLC Agreement.
Notwithstanding the foregoing, there shall be excluded from LLC
Charges:
(1) all non-cash items such as depreciation;
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(2) amounts distributed to the Members pursuant to this Agreement;
(3) all costs, charges and expenses deducted from the proceeds of
a Major Capital Event to determine Net Extraordinary Cash Flow;
(4) any expense, cost or charge to the extent such expense, cost
or charge was paid from Cash Reserves; and
(5) any expenses, obligations or liabilities incurred by the
Reckson Members or the Investor Members in connection with the formation of
the LLC and the entering into of this Agreement which are specifically stated
to be those of the Reckson Members or the Investor Members (rather than the
LLC) under this Agreement.
Lockout Period: Means the period of time from the date of this
Agreement through and including September 20, 2009.
LOI: As defined in Section 10.01(a).
Major Capital Event: Means any extraordinary transaction which
generates cash receipts other than ordinary operating income, including,
without limitation, (i) in the case of the LLC, sales of all or a significant
portion of the LLC's interests in the Property Owner and borrowings (whether
secured or unsecured) by the LLC, and (ii) in the case of Property Owner,
sales of all or a significant portion of Property Owner's interest in the
Property and borrowings (whether secured or unsecured) by Property Owner.
Major Decisions: As defined in Section 7.02.
Major Lease: As defined in Section 7.02(d)(i).
Major Line Items: Means the following line items: Cleaning;
Payroll and Employee-Related Expenses; Utilities; Repairs and Maintenance;
Security; Insurance; Real Estate Taxes; General and
Administrative/Professional Fees and Property Management.
Management Agreement: Means the property management agreement
governing the management and the leasing of the Property entered into between
the Property Owner and Managing Agent simultaneously herewith and attached
hereto to as Exhibit B as such agreement may be modified, amended or restated
from time to time in accordance with this Agreement and any replacement
management and leasing agreement entered into in accordance with the
provisions of this Agreement.
Management Committee: As defined in Section 7.01(a).
Managing Agent: Means any manager under a Management Agreement or
any successor thereto or any replacement managing agent appointed in
accordance with the terms of this Agreement.
Marketing Period: As defined in Section 10.01(a).
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Material Agreements: Means each contract or agreement (other than
Leases, any Applicable Loan Documents, organizational documents, title
documents or other documents of record) relating to the operation of the
Property under which an Applicable Entity has the obligation to pay (or is
reasonably likely to pay) more than $150,000 per annum and which cannot be
terminated by an Applicable Entity without cause upon 45 days' notice or less
without a material penalty or premium.
Member: Means, at any time, any Person admitted and remaining as a
member of the LLC pursuant to the terms of this Agreement. As of the date of
this Agreement the Members of the LLC are Reckson and Investor.
Member Debtor: As defined in Section 9.05(a).
Monthly Report: As defined in Section 8.04(b).
▇▇▇▇▇▇: Means JPMorgan Chase Bank, N.A., and its successors.
Mortgage Loans: As defined in the definition of "Applicable
Loans".
NAPI: Means NAPI REIT, Inc., a Maryland corporation.
Necessary Expenses: Means expenses incurred or required to be
incurred (without duplication) in respect of (i) compliance with Legal
Requirements, (ii) Impositions, (iii) amounts payable under Section 14.22,
(iv) obligations under (A) the Citibank Lease or any Lease entered into in
accordance with the terms of this Agreement, to the extent the expenses (or
the amounts thereof) thereunder were non-discretionary and not reasonably
anticipated at the time of the adoption of the applicable Business Plan, (B)
Applicable Loans and (C) contracts with third parties entered into on or after
the date hereof in accordance with the terms of this Agreement, to the extent
the expenses (or the amounts thereof) thereunder non-discretionary and were
not reasonably anticipated at the time of the adoption of the applicable
Business Plan, (v) utility charges, (vi) amounts payable to or reimbursable to
Managing Agent under the Management Agreement, if any, (vii) insurance, and
(viii) protecting against (or deemed necessary or prudent in the good faith
judgment of the Administrative Member to protect against) injury to persons or
material damage to property, including, without limitation, in respect of
security and life safety.
Net Extraordinary Cash Flow: Means the amount, if any, remaining
after subtracting from cash receipts arising from a Major Capital Event (a)
all costs, charges and expenses of the LLC and the Property Owner related to
such Major Capital Event (including, without limitation, any transaction
costs, loan repayment costs and prepayment premiums) and (b) any additions to
Capital Reserves. Net Extraordinary Cash Flow shall include any funds released
from Capital Reserves. Net Extraordinary Cash Flow shall be determined on the
cash basis of accounting.
Net Income and Net Loss: Mean, respectively, for each Fiscal Year
or part thereof, the taxable income or taxable loss of the LLC for such period
as determined for U.S.
- 14 -
federal income tax purposes (inclusive of items required to be separately
accounted for under Section 703(a) of the Code), with the following adjustments:
(a) there shall be taken into account any tax exempt income of the
LLC,
(b) any expenditures of the LLC which are described in Section
705(a)(2)(B) of the Code or which are deemed to be described in Section
705(a)(2)(B) of the Code pursuant to Regulations under Section 704(b) of the
Code shall be treated as deductible expenses,
(c) if any LLC asset has a Book Value which differs from its
adjusted tax basis as determined for U.S. federal income tax purposes, income,
gain, loss and deduction with respect to such LLC asset shall be computed
based upon the LLC asset's Book Value rather than its adjusted tax basis, and
(d) if the Book Value of any LLC asset is adjusted pursuant to
clauses (b) or (c) of the definition thereof, the amount of such adjustment
shall be taken into account as gain or loss for purposes of computing Net
Income and Net Loss.
Items of income, gain, deduction, and loss allocated pursuant to
Section 6.03, including "nonrecourse deductions" and "partner nonrecourse
deductions," shall be excluded from the computation of Net Income and Net
Loss.
Net Ordinary Cash Flow: Means, for any given period of time, the
Receipts for such period less the LLC Charges for such period. Net Ordinary
Cash Flow shall be determined on the cash basis of accounting.
New Administrative Member: As defined in Section 7.03(b).
Non-Approving Member: As defined in Section 10.01(a).
Non-Contributing Member: As defined in Section 5.02(b).
Non-Transferring Member: As defined in Section 9.02(a)(i)(A).
Notice Recourse Obligations: Means the items set forth in Section
18.1.2(a), (c), (d) and (g) of the GACC Loan Agreement as referenced by
Section 2 of the GACC Guaranty.
Offer Notice: As defined in Section 10.01(a).
Offeree Member: As defined in Section 10.02(a).
Offering Price: As defined in Section 9.02(a)(i)(A).
Offeror Member: As defined in Section 10.02(a).
Operating Budget: As defined in Section 7.05(a).
Original LLC Agreement: As defined in the Recitals hereto.
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Original Members: As defined in the Recitals hereto.
Outside Date: As defined in Section 5.02(b)(ii).
Outstanding Capital Contributions: As defined in Section 5.01(b).
Percentage Interest: Means, for each Member, at any time, the
quotient, expressed as a percentage of (a) the sum of such Member's Capital
Contributions, divided by (b) the sum of the Members' aggregate Capital
Contributions.
Permitted Equipment Financings: Means financing leases and
purchase money debt, in each case incurred in the ordinary course of business
in connection with the financing or purchase of equipment and other personal
property used at the Property, the payments under all such leases and/or debt
not to exceed an aggregate of $100,000 per annum (as increased on each
anniversary of the date of this Agreement by the CPI Increase);
Person: Means any individual, corporation, association,
partnership, limited liability company, joint venture, trust, estate or other
entity or organization.
Plan Asset Regulation: Means U.S. Department of Labor Regulation
ss. 2510.3-101
Pledge: As defined in Section 9.05(a).
Pledgee: As defined in Section 9.05(b).
Prime Rate: Means the rate of interest per annum for U.S. Dollar
loans publicly announced from time to time by ▇▇▇▇▇▇ as its prime rate in
effect in its principal office in New York City.
Proceeding: As define in Section 13.01(b).
Prohibited Person: Means any Person identified on the OFAC List or
any other Person with whom a U.S. Person may not conduct business or
transactions by prohibition of Federal law or Executive Order of the President
of the United States of America.
Promote Percentages: As of the date of this Agreement, the Promote
Percentage of each Member is as follows: Investor - fifty percent (50%) and
Reckson - fifty percent (50%) and, after the date hereof, the Promote
Percentage of each Member, as of any time, shall be as follows: Investor- its
then Percentage Interest less twenty percentage points (20%), but not less
than zero percent (0%), and Reckson its then Percentage Interest plus twenty
percentage points (20%), but not more than one hundred percent (100%)
Projections: As defined in Section 8.04(c).
Property: As defined in the Recitals hereto.
- 16 -
Property-Binding Arrangements: Means (A) the Commercial Building
Agreement between the Realty Advisory Board on Labor Relations, Inc. (the
"RAB") and certain labor unions in Manhattan (the "Unions") in effect on the
date hereof and (B) any future agreements (including collective bargaining
agreements) and/or arrangements between the RAB (or its successors) and the
Unions which are binding on the Property.
Property Escrow Agent: As defined in Section 10.01(a).
Property Owner: As defined in the Recitals hereto.
Property Owner LLC Agreement: Means that certain Amended and
Restated Operating Agreement of Reckson Court Square, LLC dated as of August
3, 2005, as amended by that certain First Amendment to Amended and Restated
Operating Agreement of Property Owner, dated as of the date hereof by the LLC,
as the same may be amended, modified and restated from time to time in
accordance with this Agreement.
Property Taxes: Means ad valorem taxes and any other real or
personal property taxes applicable to the Property.
Purchaser: As defined in Section 9.05(a).
Purchasing Buy/Sell Member: As defined in Section 10.02(b).
Purchasing Party: As defined in Section 10.01(b)(A).
Qualifying Buyer: As defined in Section 10.01(a).
Receipts: Means, for any given period of time, a sum equal to (1)
the aggregate of all amounts actually received by the LLC in respect of any
LLC Asset, other than distributions received from the Property Owner, during
such period, including, without limitation:
(a) interest, if any, earned and available to the LLC on any Cash
Reserves or other LLC funds;
(b) the amount of any reductions in Cash Reserves, other than any
net reductions resulting from the use of Cash Reserves to pay LLC Charges;
(c) cash or other immediately available funds (other than receipts
from a Major Capital Event) received by the LLC from any other source; and
plus (2) an amount equal to all distributions actually made by the
Property Owner directly to the LLC of (i) interest, if any, earned and
available to the Property Owner on any cash reserves or other LLC funds, (ii)
the amount of any net reduction of cash reserves, other than any net reduction
resulting from the use of cash reserves to pay LLC Charges by Property Owner
(including the Working Capital Account); and, (iii) cash or other immediately
available funds (other than receipts from a Major Capital Event) received by
the Property Owner from any other source.
- 17 -
Notwithstanding the foregoing, Receipts shall not include (i)
amounts contributed or loaned by the Members to the LLC pursuant to this
Agreement, (ii) amounts which, although held by the LLC, may not be
distributed to the LLC, or by or for the account of the LLC to its Members
under Legal Requirements or pursuant to the terms of an agreement with a third
party and (iii) amounts arising from a Major Capital Event.
Receipts shall be determined on a cash basis of accounting.
Reckson: As defined in the Preamble to this Agreement.
Reckson Committee Member: As defined in Section 7.01(a).
Reckson Knowledge Individuals: As defined in Section 13.01(a).
Reckson Members: Means Reckson and each of the Members under this
Agreement from time to time which is a permitted transferee of the then
Reckson Members.
Reckson OP: As defined in the Recitals hereto.
Reckson Recourse Party: Means Reckson OP, and any replacement
principal of the Reckson Members approved by the Investor Members.
Recommending Member: As defined in Section 10.01(a).
Recording Office: Means the office of the Secretary of State of
the State of Delaware.
Recourse Party: Means the Reckson Recourse Party or the Investor
Recourse Party, individually.
Regulations: Means the regulations issued by the United States
Department of the Treasury under the Code as now in effect and as they may be
amended from time to time, and any successor regulations.
Regulatory Allocations: As defined in Section 6.03(d).
REIT: As defined in Section 7.10.
REIT Members: Means NAPI REIT, Inc. and JPM I&G Domestic JV 13,
LLC and any other direct or indirect owner of an interest in Investor that has
notified Administrative Member in writing of its election to be taxed as a
REIT.
Release: As defined in Section 10.01(a).
Release Indemnity: As defined in Section 10.01(a).
Rep. Basket: As defined in Section 13.01(b).
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Rep. Closing Date: As defined in Section 13.01(b).
Requesting Member: As defined in Section 14.08.
Response Period: As defined in Section 10.01(a).
Restricted List: As defined in Section 7.15.
ROFO Closing Date: As defined in Section 9.02(a)(i)(C).
Sale Closing Date: As defined in Section 10.01(a).
Sale Price: As defined in Section 10.01(a).
Secured Liabilities: As defined in Section 9.02(b)(i).
Selling Buy/Sell Member: As defined in Section 10.02(b)(i).
Senior Management of Reckson: Means any of the individuals who
hold a position of executive vice president (or its functional equivalent to
the extent such title is no longer in use), corporate senior vice president
(or its functional equivalent to the extent such title is no longer in use) or
higher at Reckson OP or any successor Administrative Member or any Successor
Principal of the Administrative Member, but excluding those who were not
employed by Reckson OP (or any successor Administrative Member or Successor
Principal of the Administrative Member) or any of its Affiliates 270 days
prior to the applicable act in question. As of the date hereof the following
individuals hold the position of executive vice president, corporate senior
vice president or higher at Reckson: ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇ III, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇.
SSPF: Means the Commingled Pension Trust Fund (Special Situation
Property) of JPMorgan Chase Bank, N.A.
SSPF Replacement Trust: As defined in Section 9.01(a)(iii).
Successor Principal: Any principal who acquires the direct or
indirect control of all or any portion of a Member's Interest pursuant to a
transfer consented to (or deemed consented to) by the other Members or a
transfer that does not require the consent of any Member under this Agreement.
Taxes: Means all taxes, charges, fees, levies or other
assessments, including, without limitation, income, gross receipts, excise,
real and personal property, sales, transfer, recordation, deed, stamp,
license, payroll and franchise taxes, imposed by any governmental authority
and shall include interest, penalties or additions to tax attributable to any
of the foregoing.
Tax Returns: As defined in Section 13.01(a)(xii).
- 19 -
Third Party Contract: As defined in Section 10.01(a).
Title Insurance Policy: As defined in Section 13.01(a)(xx).
Transfer: As defined in Section 9.01(a).
Transfer Date: As defined in Section 12.03.
Transferring Member: As defined in Section 9.02(a)(i).
Transfer Tax Amount: $10,275,512.00, which represents the ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ transfer taxes paid by Investor in connection with its
initial acquisition of its Interest from Reckson OP, which includes amounts
payable as a result of Investor paying such transfer taxes; provided, however,
to the extent any additional New York State and/or New York City transfer
taxes are determined after the date hereof to be due and payable solely in
connection with Investor's initial acquisition of its Interest from Reckson
OP, Investor shall pay such additional transfer taxes (and any interest or
penalties thereon) and, upon such payment, the Transfer Tax Amount shall be
increased by such additional transfer taxes.
UBTI: Means "Unrelated Business Taxable Income" as defined in
Section 512 of the Code.
Unaffiliated Member: Means, with respect to the Reckson Members,
an "Unaffiliated Member" is any Investor Member and with respect to the
Investor Members, an "Unaffiliated Member" is any Reckson Member.
Undistributed Income: As defined in Section 14.05.
Union Contracts: As defined in Section 7.02(u).
Unreturned Transfer Tax Amount: Means the Transfer Tax Amount less
all amounts previously distributed to Investor pursuant to Section
6.05(c)(ii).
Upper Tier Transfer: Means any of the following, whether
accomplished directly or indirectly, by contract, operation of law,
voluntarily or involuntarily:
(a) any Transfer of (i) any partnership interest in any Member
that is a partnership, (ii) any stock in any Member that is a corporation or
(iii) any membership, legal or beneficial interest in any Member that is a
limited liability company, trust or other entity;
(b) (i) the admission of any additional partner to any Member that
is a partnership, (ii) the issuance of additional stock in any Member that is
a corporation or (iii) the issuance of any additional membership, legal or
beneficial interest in any Member that is a limited liability company, trust
or other entity; and
(c) the occurrence of any of the transactions described in clauses
(a) or (b) above with respect to any partnership, corporation, limited
liability company, trust or other entity
- 20 -
that is itself an owner of any direct of indirect interest in a Member, or any
other transaction, howsoever effected, which changes the beneficial ownership
of a Member from that existing on the date hereof.
Venture Administration Fee: As defined in Section 6.08.
ARTICLE II
FILING; NAME; PLACE OF BUSINESS
2.01 Filing. The Members shall execute and acknowledge, and the
Administrative Member shall promptly file or record with the proper offices in
each jurisdiction and political subdivision in which the LLC does business,
and if necessary or desirable, cause to be published, the Certificate or
amended certificates, if any, as are required or permitted by the LLC Act, or
any fictitious name act, or act relating to qualification to do business, or
similar statute or any rule or regulation in effect in such jurisdiction or
political subdivision. The Members shall further execute and acknowledge and
the Administrative Member shall promptly file or record such amended
certificates or additional certificates or instruments of whatever nature as
may from time to time be called for or required by such statutes, rules or
regulations to permit the continued existence and operation of the LLC.
2.02 Name of LLC. The name under which the LLC shall conduct its
business is One Court Square Holdings LLC or such other name as the Members
may select.
2.03 Place of Business. The location of the principal place of
business of the LLC shall be c/o Reckson Associates, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The principal place of business of the LLC shall be
changed to such other place or places within the United States as the
Administrative Member may from time to time determine; provided, that if
necessary, the Members shall amend the Certificate in accordance with the
applicable requirements of the LLC Act.
2.04 Registered Office and Registered Agent. The street address of
the initial registered office of the LLC shall be Corporation Trust Center,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the LLC's registered agent
at such address shall be CT Corporation. The Administrative Member may
hereafter change the registered agent and registered office and, if necessary,
the Members shall amend the Certificate in accordance with the applicable
requirements of the LLC Act to reflect such change.
ARTICLE III
PURPOSES, POWERS AND TERM OF LLC
3.01 Purposes. The purposes of the LLC shall be to (a) own, hold,
finance, manage, operate, sell and otherwise dispose or deal with and exercise
any rights it may have with respect to the Property Owner and (b) do all other
things reasonably incident thereto, each in accordance with the terms of this
Agreement.
- 21 -
3.02 Powers. The LLC shall have the power to do any and all acts
and things necessary, appropriate, advisable or convenient for the furtherance
and accomplishment of the purposes of the LLC, including, without limitation,
to engage in any kind of activity and to enter into and perform obligations of
any kind necessary to, or in connection with, or incidental to, the
accomplishment of the purposes of the LLC, so long as said activities and
obligations may be lawfully engaged in or performed by a limited liability
company under the LLC Act.
3.03 Term of LLC. The existence of the LLC commenced on the date
upon which the Certificate was duly filed with the Recording Office and shall
continue until terminated in accordance with the provisions of Article XI.
ARTICLE IV
APPORTIONMENTS
4.01 Apportionments. Notwithstanding the provisions of Article V,
the following provisions shall apply:
(a) (i) As of 11:59 P.M. on the day immediately preceding the date
hereof, the Administrative Member, on behalf of the LLC closed the books of
the LLC. The following items shall be apportioned between the parties as of
the date hereof (with Reckson entitled to income and, except to the extent
expressly provided for under this Agreement otherwise, responsible for
expenses prior to the date hereof and Reckson and Investor entitled to income
and responsible for expenses from and after the date hereof): (A) any and all
amounts payable by Citibank to the Property Owner under the Citibank Lease,
(B) any insurance premiums under insurance policies carried by the LLC or the
Property Owner with respect to the Property, (C) debt service and any other
recurring fees under the GACC Loan, and (D) other any revenues or expenses of
the LLC and/or the Property Owner.
(ii) All income, gains, losses, deductions and credits of
the LLC (including all LLC Charges) accruing prior to the date hereof shall be
allocated to Reckson. From and after the date hereof, the respective Interests
of the Members in the revenues, distributions, expenses, income, gains,
losses, deductions and credits of the LLC shall be in accordance with the
provisions of this Agreement.
(iii) As to any receivables, expenses, charges or other
similar items (including all LLC Charges) for the accounting period in which
the Closing occurs, if the date of this Agreement is prior to the time when
any such receivable, charge, expenses or similar item (including all LLC
Charges) is paid, then the same shall be apportioned subsequent to the date
hereof. If, prior to the date hereof, the Property Owner shall have collected
any sums on account of any such receivable, charge, expense or similar item
(including all LLC Charges) for any accounting period beginning prior to but
ending subsequent to the date hereof, such sum shall be apportioned as of the
date hereof.
(b) If the parties apportion any of the items set forth in
paragraph (a) above which have been paid on an estimated basis, such items
shall be reapportioned when the actual
- 22 -
amounts are finally determined (including, without limitation, after any
tenant audit or dispute has been finally determined). Administrative Member
shall provide to the Members an accounting of all such amounts.
(c) (i) Reckson OP shall indemnify and hold harmless the LLC and
Investor from and against all loss, obligation, expense (including reasonable
counsel fees), damage and liability to the Applicable Entities resulting from
claims asserted by third parties, but only if and to the extent such expenses,
obligations, damages and liabilities are expressly the responsibility of
Reckson under this Agreement or (A) have arisen or accrued prior to the date
hereof or are based upon events which occurred prior to the date hereof and
(B) are not related to (I) the physical or environmental condition of the
Property or any fixtures or equipment located thereon (except for an injury,
death or third party claim for property damage occurring at the Property prior
to the date hereof which directly results from a physical condition at the
Property existing at the time of such injury), (II) any matter that would
ordinarily be revealed by a title search and/or survey of the Property or is
covered by the LLC's title insurance policy, or (III) any matter that is the
responsibility of Citibank. All expenses, obligations, damages and liabilities
of the Applicable Entities for which Reckson OP is not responsible pursuant to
this Section 4.01(c)(i) shall be the responsibility of the LLC from and after
the date hereof.
(ii) Reckson OP shall indemnify and hold harmless the LLC
and the Investor for any New York State and City real estate transfer taxes
(including any controlling interest transfer taxes) that are imposed on the
Applicable Entities, but only if and to the extent such taxes are based upon
(i) transfers and events which occurred prior to the execution and delivery of
this Agreement and/or (ii) the transfer of an interest in the LLC to Reckson
by Reckson OP.
(d) Each Member's Capital Account shall be adjusted as of the date
hereof and shall be equal to the amount set forth after such Member's name in
Section 5.01(a) as its Capital Contribution (or deemed Capital Contribution),
after taking into account the apportionments pursuant to Section 4.01,
provided that the Investor's Capital Account as of the date hereof shall equal
the amount set forth after its name in Section 5.01(a) as its Capital
Contribution plus an amount equal to the Transfer Tax Amount as of the date
hereof. The aggregate initial Book Values of the LLC assets as of the date
hereof, net of any liabilities of the LLC, shall equal the Member's aggregate
Capital Accounts as of the date hereof, provided further that the initial Book
Value of any LLC cash shall equal the amount thereof, the initial Book Value
of LLC land shall equal $119,138,550 and the initial Book Value of LLC
buildings shall equal the initial aggregate Book Values of all LLC assets less
the aggregate Book Values of LLC cash and LLC land.
(e) On the date hereof, Investor shall pay to Reckson an amount
equal to $7,022,686.00 representing Investor's pro rata share of the mortgage
recording taxes and other transaction costs attributable to the GACC Loan,
including, without limitation legal fees, due diligence costs of Lender and
title insurance costs, that were paid by the LLC or its Affiliate (the "GACC
Loan Costs"). The GACC Loan Costs are set forth on Schedule I hereto.
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ARTICLE V
CAPITAL
5.01 Deemed Capital Contributions. (a) As of the date hereof the
Members have made (or are deemed to have made) Capital Contributions in the
following amounts:
Investor $116,235,214.00 (70%)
Reckson $49,815,092.00 (30%)
(b) The outstanding amount of each Member's Capital
Contributions (i) shall automatically be increased to reflect any additional
Capital Contributions made by such Member (other than in connection with
funding the Working Capital Account below unless and until amounts on deposit
in the Working Capital Account shall be applied to obligations of the Property
Owner or the LLC to the extent any such amounts are not returned into the
Working Capital Account within sixty (60) days of such application) and (ii)
shall be decreased (but not below zero) to reflect any distributions of Net
Extraordinary Cash Flow made to such Member in accordance with the provisions
of this Agreement. The outstanding amount of each Member's Capital
Contributions from time to time calculated in accordance with the provisions
of this Section 5.01(b) is referred to herein as such Member's "Outstanding
Capital Contributions".
5.02 Initial Working Capital; Additional Contributions; Shortfall
Loans. (a) Simultaneously herewith, the Members have established a working
capital account (the "Working Capital Account") for operating shortfalls
(including debt service shortfalls under any Applicable Loan) in the initial
amount of $100,000.00. In the event that no funds are available in the Working
Capital Account, or if monies are required (i) by the Business Plan, (ii) to
enable the Applicable Entities to pay Necessary Expenses as they become due if
such Applicable Entity shall not have sufficient funds to pay the same, (iii)
to fund Cash Reserves in the amount agreed to by the Members on the date
hereof or (iv) as the Management Committee may otherwise approve, then the
Members shall make additional Capital Contributions in proportion to their
respective Percentage Interests in such amounts without duplication.
Additional Capital Contributions shall be paid (x) within ten (10) Business
Days after request therefor by the Administrative Member or (y) such shorter
time period as required under the terms and provisions of any Applicable Loan
Documents (provided such shorter time period shall commence, with respect to
any non-Administrative Member, upon delivery of a notice to the
non-Administrative Member from Administrative Member that such Additional
Capital Contribution is required to be made). In the event that Administrative
Member has failed to timely request an additional Capital Contribution under
this Section 5.02(a), the non-Administrative Member (or the Group Agent for
the non-Administrative Members, as applicable) may make such request by
sending written notice (the "Capital Call Notice") thereof to the Members and
the 10 Business Day period (or such shorter period) set forth in the preceding
sentence shall commence on the date the Capital Call Notice is received by the
Members. Additional capital which is required for the business of the Property
Owner shall be (x) contributed by the LLC to the capital of the Property Owner
or (y) loaned by the LLC to the Property Owner on such loan terms as are
determined by the Management Committee.
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(b) If at any time a Reckson Member or an Investor Member shall
fail to timely make a Capital Contribution which such Member is obligated to
make under this Section 5.02 (such Member, a "Non-Contributing Member"), and
such failure shall continue for a period of 10 Business Days (or such shorter
period as described in Section 5.02(a)(y)) after notice of such failure, the
rights and remedies set forth below in this Section 5.02(b) shall apply. Such
remedies may be exercised (as between such remedies) on a cumulative and
nonexclusive basis but shall collectively constitute the exclusive remedies
available against a Non-Contributing Member.
(i) If the Reckson Members, on the one hand, or the Investor
Members, on the other hand, have timely made their own Capital Contributions
(as applicable, the "Contributing Member"), the Contributing Member may (but
shall not be obligated to), within 30 days after the expiration of the 10
Business-Day period (or such shorter period as described in Section
5.02(a)(y)) referred to above (x) request in writing that its Capital
Contribution be returned, in which case the Administrative Member shall cause
the LLC to immediately return such Capital Contribution to the Contributing
Member or (y) advance the portion of the Capital Contribution which the
Non-Contributing Member has failed to make (the amount so advanced, the
"Default Amount") to the LLC, and such advance shall be treated as a loan from
the Contributing Member to the Non-Contributing Member and as a Capital
Contribution by the Non-Contributing Member to the LLC. The Contributing
Member shall give notice thereof to the Non-Contributing Member upon the
Contributing Member's loan of the Default Amount. Any such loan of the Default
Amount made by a Contributing Member to the Non-Contributing Member is
referred to herein as a "Default Loan". Each Default Loan shall bear interest
on the unpaid principal amount thereof at the Default Loan Rate from the date
advanced until the date repaid. The Non-Contributing Member may repay the
Default Loan, plus all accrued and unpaid interest thereon, at any time prior
to the Conversion Date.
(ii) In the case of Default Loans, if any Default Loan, plus
all interest accrued thereon, is not repaid in full to the Contributing Member
on or prior to the date that is 180 days after such Default Loan was made (the
"Outside Date"), then the Contributing Member shall have the option,
exercisable within 30 days following the Outside Date, to convert the
outstanding amount of the Default Loan, plus all accrued and unpaid interest
thereon, into a Capital Contribution by the Contributing Member (a
"Contributing Member Contribution"). Such option shall be exercised, if at
all, by written notice given by the Contributing Member to the
Non-Contributing Member no later than 30 days following the Outside Date (the
date of such notice, the "Conversion Date"). If the Contributing Member elects
to make a Contributing Member Contribution, then for all purposes of this
Agreement, the Capital Contributions of (I) the Contributing Member shall be
deemed to be increased, as of the Conversion Date, by the product of (x) the
applicable Contributing Member Contribution and (y) 1.25 and (II) the
Non-Contributing Member shall be deemed to be decreased, as of the Conversion
Date, by the Contributing Member Contribution and for purposes of determining
each Member's Capital Account (in addition to the amounts treated as Capital
Contributions under Section 5.02(b)(i)) the LLC shall be deemed to have made a
distribution to the Non-Contributing Member of an amount of cash equal to the
Contributing Member Contribution and the Contributing Member shall be deemed
to have contributed an equal amount of cash to the LLC (it being understood
that
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no such distribution will in fact be made or required to be made). If the
principal and interest due on a Default Loan shall be converted into a Capital
Contribution pursuant to this Section 5.02(b)(ii) or Section 6.10, then (x) no
subsequent payment or tender of payment by the Non-Contributing Member of the
amount so converted or contributed shall affect the Members' Capital
Contributions and Percentage Interests as recalculated in accordance with this
Agreement and (y) the Non-Contributing Member shall have neither the right nor
the obligation to repay any such principal or interest. The Members hereby
agree that, following any adjustments described in this Section 5.02(b)(ii) or
Section 6.10, the Percentage Interests of each Member shall be readjusted.
Upon the conversion of any Default Loan into a Capital Contribution, at the
Contributing Member's sole election, the LLC shall adjust the Book Values of
all of its assets such that the Capital Accounts of the Members, after taking
into account such adjustment to Book Values and the Capital Contribution by
the Contributing Member and subject to compliance with Section 6.06, shall be,
as nearly as possible, in the same ratio as the Members' respective Percentage
Interests (increased in the case of the Investor's Capital Account by the
Unreturned Transfer Tax Amount), after the adjustment to the Members'
Percentage Interests described in the prior sentence.
5.03 Liability of Members. Except as otherwise provided in the LLC
Act and this Agreement, the debts, obligations and liabilities of the LLC,
whether arising in contract, tort or otherwise, shall be solely the debts,
obligations and liabilities of the LLC, and the Members shall not be obligated
personally for any such debt, obligation or liability of the LLC solely by
reason of being a Member. The failure of the LLC to observe any formalities or
requirements relating to the exercise of its powers or management of its
business or affairs under the LLC Act or this Agreement shall not be grounds
for imposing personal liability on the Members for liabilities of the LLC.
5.04 Return of Capital. Except as may be specifically provided in
this Agreement, no Member shall have the right to demand or to receive the
return of all or any part of its Capital Account or its Capital Contributions
to the LLC.
ARTICLE VI
ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS
6.01 Capital Accounts.
(a) Each Member shall have a Capital Account which shall be
maintained in accordance with Regulations Section 1.704-1(b)(2)(iv).
(b) The Capital Account of each Member shall be increased
(i) by the amount of cash and the fair market value of any property (net of
liabilities that the LLC is considered to assume, or take property subject to,
under Section 752 of the Code) contributed by such Member to the LLC and (ii)
by any Net Income or items of income or gain allocated to such Member pursuant
to Section 6.02 and any item in the nature of income or gain specially
allocated to such Member pursuant to Section 6.03.
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(c) The Capital Account of each Member shall be reduced by
(i) the amount of cash and the fair market value of any property (net of
liabilities that the Member is considered to assume, or take property subject
to, under Section 752 of the Code) distributed to such Member and (ii) by any
Net Loss or items of loss or deductions allocated to such Member pursuant to
Section 6.02 and any item in the nature of loss or deduction specially
allocated to such Member pursuant to Section 6.03.
(d) The Capital Account of each Member shall be adjusted to
reflect any adjustment to the Book Value of the LLC's assets attributable to
the application of Sections 734 or 743 of the Code to the extent required
pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m).
(e) In the event that all or a portion of an Interest in the
LLC is transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to the
extent it relates to the transferred Interest.
(f) Except as otherwise provided in this Agreement, whenever
it is necessary to determine the Capital Account of any Member, the Capital
Account of such Member shall be determined after giving effect to the
allocations of Net Income, Net Loss and other items realized prior or
concurrently to such time (including, without limitation, any Net Income and
Net Losses attributable to adjustments to Book Values with respect to any
concurrent distribution), and all contributions and distributions made prior
or concurrently to the time as of which such determination is to be made.
(g) The provisions of this Article VI (and other related
provisions in this Agreement) pertaining to the maintenance of Capital
Accounts and allocation of items of LLC income, gain, loss, deductions, and
credits shall be interpreted consistently with Section 704 of the Code and the
Regulations thereunder, and to the extent unintentionally inconsistent with
such Code and Regulations, shall be deemed to be modified to the extent
necessary to make such provisions consistent with the Code and Regulations.
6.02 Allocation of Net Income or Net Loss. (a) After giving effect
to the special allocations set forth in Section 6.03, Net Income for each
taxable year, or portion thereof, shall be allocated among the Members (and
credited to their Capital Accounts) as follows:
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(i) First, to the Members pro rata in accordance
with their respective Percentage Interests until
the balance in Investor's Capital Account
(increased for these purposes by Investor's
share of partnership minimum gain, determined in
accordance with Section 1.704-2(g) of the
Regulations, and partner nonrecourse debt
minimum gain, determined in accordance with
Section 1.704-2(i)(3) of the Regulations) is
equal to Investor's then Outstanding Capital
Contributions (excluding the Transfer Tax
Amount);
(ii) Second, to Investor until the aggregate amount
of Net Income allocated to it under this Section
6.02(a)(ii) for the taxable year and all prior
taxable years equals the aggregate amount of Net
Loss allocated to Investor pursuant to Section
6.02(b)(ii) for all prior taxable years;
(iii) Third, to the Members pro rata in accordance
with their respective Percentage Interests until
the balance in Investor's Capital Account
(increased for these purposes by Investor's
share of partnership minimum gain, determined in
accordance with Section 1.704-2(g) of the
Regulations, and partner nonrecourse debt
minimum gain, determined in accordance with
Section 1.704-2(i)(3) of the Regulations) is
equal to an amount that if such amount were
distributed to Investor pursuant to Section
6.05(c) at the end of such taxable year,
Investor would have received a 12.5% Internal
Rate of Return, taking into account all previous
distributions under Section 6.05; and
(iv) Fourth, the balance, if any, to each of Investor
and Reckson in accordance with their respective
Promote Percentages.
(b) After giving effect to the special allocations set forth in
Section 6.03, Net Loss for each taxable year, or portion thereof, shall be
allocated among the Members (and credited to their Capital Accounts) as
follows:
(i) First, to the Members who have previously been
allocated Net Income pursuant to Sections
6.01(a)(iii) and 6.01(a)(iv), in the reverse
order (and in the same ratios) as prior
allocations of Net Income pursuant to Sections
6.01(a)(iii) and 6.01(a)(iv), until the
aggregate Net Loss allocated to each such Member
pursuant to this Section 6.01(b)(i) are equal to
the aggregate Net Income allocated to that
Member pursuant to Sections 6.01(a)(iii) and
6.01(a)(iv);
(ii) Second, to Investor until the amount of Net Loss
allocated hereunder for the current and all
prior taxable years, net of any Net
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Income allocated to Investor pursuant to Section
6.02(a)(ii) for all prior taxable years, is
equal to the Unreturned Transfer Tax Amount; and
(iii) Third, the balance, if any, to the Members in
accordance with their Percentage Interests.
6.03 Special Allocations. (a) Notwithstanding any other provision
of this Agreement, "partner nonrecourse deductions" (as defined in Regulations
Section 1.704-2(i)), if any, of the LLC shall be allocated to the Member who
bears the economic risk of loss with respect to the debt to which such
deductions are attributable in accordance with Regulations Section 1.704-2(i),
and "nonrecourse deductions" (as defined in Regulations Section 1.704-2(b)(1))
of the LLC shall be allocated to the Members in accordance with their
Percentage Interests and "excess nonrecourse liabilities" (as defined in
Regulations Section 1.752-3(a)), if any, of the LLC shall be allocated to the
Members in accordance with their respective Percentage Interests.
(b) This Agreement shall be deemed to include "qualified income
offset," "minimum gain chargeback" and "partner nonrecourse debt minimum gain
chargeback" provisions within the meaning of the Regulations under Section
704(b) of the Code. Accordingly, notwithstanding any other provision of this
Agreement, items of income, gain, loss, and deduction shall be allocated to
the Members to the extent and in the manner required by such provisions.
(c) To the extent that Net Loss or items of loss or deduction
otherwise allocable to a Member hereunder would cause such Member to have an
Adjusted Capital Account Deficit as of the end of the taxable year, or other
period, to which such Net Loss, or items of loss or deduction, relate (after
taking into account the allocation of all items of income and gain for such
taxable period), such Net Loss, or items of loss or deduction, shall not be
allocated to such Member and instead shall be allocated to the Members in
accordance with Section 6.02 as if such Member were not a Member.
(d) Subject to the provisions of Section 6.07, any allocations
required to be made pursuant to Section 6.03(a), Section 6.03(b) and Section
6.03(c) (the "Regulatory Allocations") (other than allocations, the effect of
which are likely to be offset in the future by other special allocations)
shall be taken into account, to the extent permitted by the Regulations, in
computing subsequent allocations of income, gain, loss or deduction pursuant
to Section 6.02 so that the net amount of any items so allocated and all other
items allocated to such Member shall, to the extent possible, be equal to the
amount that would have been allocated to each Member pursuant to Section 6.02
had such Regulatory Allocations under this Section 6.03 not occurred.
(e) Notwithstanding anything to the contrary contained herein,
each Member shall be allocated for each taxable year, or portion thereof, an
amount of gross income and gain (consisting of a pro rata portion of each item
of LLC income and gain and, if necessary, income
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and gain from subsequent years) equal to the amount of distributions received
by such Member pursuant to Section 6.05(b)(ii) in respect of such taxable
year.
(f) It is intended that prior to a distribution of the proceeds
from a liquidation of the LLC pursuant to the provisions of Section 11.03, the
positive Capital Account balance of each Member shall be equal to the amount
that such Member would receive if liquidation proceeds were distributed in
accordance with the provisions of Section 6.05(c). Accordingly,
notwithstanding anything to the contrary in this Article VI (other than
Section 6.07), to the extent permissible under Code Section 704(b) and the
Regulations promulgated thereunder and subject to compliance with the
Fractions Rule, Net Income and Net Loss and, if necessary, items of gross
income and gross deductions, of the LLC for the year of liquidation of the LLC
(or, if earlier, the year in which all or substantially all of the LLC assets
are sold, transferred or disposed of) shall be allocated among the Members so
as to bring the positive Capital Account balance of each Member as close as
possible to the amount that such Member would receive if the LLC were
liquidated and all of the net proceeds from such liquidation were distributed
in accordance with the provisions of Section 6.05(c).
6.04 Tax Allocations; Allocation of Income and Loss. (a) For
federal income tax purposes, except as otherwise provided in Section 6.04(b),
each item of income, gain, loss and deduction shall be allocated among the
Members in the same manner as its corresponding item of book income, gain,
loss or deduction is allocated pursuant to this Article VI.
(b) In accordance with Code Sections 704(b) and 704(c) and the
Regulations thereunder, income, gain, loss and deduction with respect to any
LLC asset contributed (or deemed contributed) to the capital of the LLC shall,
solely for federal income tax purposes, be allocated among the Members so as
to take into account any variation between the adjusted basis of such LLC
asset for federal income tax purposes and its Book Value upon its contribution
(or deemed contribution). If the Book Value of any LLC asset is adjusted,
subsequent allocations of taxable income, gain, loss and deduction with
respect to such LLC asset shall take account of any variation between the
adjusted basis of such LLC asset for federal income tax purposes and the Book
Value of such LLC asset in the manner prescribed under Code Sections 704(b)
and 704(c) and the Regulations thereunder. Any elections or decisions relating
to such allocations shall be made as mutually agreed to by Investor and
Reckson. Allocations pursuant to this Section 6.04(b) are solely for tax
purpose and shall not affect any Member's Capital Account.
(c) If any Interest is transferred during any Fiscal Year in
accordance with this Agreement, the Net Income or Net Loss (and other items
referred to in Section 6.02) attributable to such Interest for such Fiscal
Year shall be allocated between the transferor and the transferee by closing
the books of the LLC as of the date of the transfer, or by any other method
permitted under Code Section 706 and the Regulations thereunder and agreed to
by the Administrative Member and the Members, including the transferor and the
transferee.
(d) The provisions of this Article VI (and other related
provisions in this Agreement) pertaining to the allocation of items of LLC
income, gain, loss, deductions, and credits shall be interpreted consistently
with the Regulations, and to the extent unintentionally
- 30 -
inconsistent with such Regulations, shall be deemed to be modified to the
extent necessary to make such provisions consistent with the Regulations.
6.05 Distributions of Net Ordinary Cash Flow and Net Extraordinary
Cash Flow. (a) Priority of Default Loans/L/C Obligations. For so long as any
Default Loan shall remain outstanding, all amounts which otherwise would be
distributed under Section 6.05(b), Section 6.05(c) or Section 11.03 or any
other provision of this Agreement to a Member who is an obligor under a
Default Loan shall be applied instead to repay all outstanding Default Loans.
With respect to Default Loans, the same shall be payable pro rata in
proportion to the outstanding principal amounts thereof, to be applied first
on account of accrued and unpaid interest and next on account of principal.
Any Default Loan so applied shall be treated for all purposes of this
Agreement as having been distributed to the Member which is an obligor under
such Default Loan.
(b) Distributions of Net Ordinary Cash Flow. Except as provided in
Section 6.05(a) or Section 11.03 and subject to the terms and provisions of
Sections 6.08, Net Ordinary Cash Flow shall be distributed to the Members
monthly in the following proportions:
(i) to Investor and Reckson, part passu, in proportion to
their respective Percentage Interests until Investor
shall have received a 1.875% quarterly return on
Investor's Outstanding Capital Contributions and
Unreturned Transfer Tax Amount; and
(ii) the balance of such Net Ordinary Cash Flow, if any, to
each of Investor and Reckson in accordance with their
respective Promote Percentages.
If there is any change in Percentage Interests during any calendar month, the
Administrative Member shall (i) for purposes of this Section 6.05(b),
calculate Percentage Interests on a "weighted average" basis as of the end of
each calendar month on a cumulative month-to-date basis and (ii) calculate Net
Ordinary Cash Flow as of the end of each calendar month and apply and
distribute Net Ordinary Cash Flow on or before the 24th day of the following
month. To accomplish the foregoing, Administrative Member shall cause the
Property Owner to make distributions in accordance with Section 12 of the
Property Owner LLC Agreement on the same monthly basis as set forth in the
preceding sentence. If the Annual Report of the LLC shall show that there was
any over-distribution of Net Ordinary Cash Flow to a Member, such Member shall
(A) repay the over-distribution within 30 days without interest thereon, after
receipt of such report, or (B) be subject to an off-set for such
over-distribution on the date or dates of the next distributions of Net
Ordinary Cash Flow until such over-distribution is recovered by the LLC. If
such Annual Report shall show that there was an under-distribution of Net
Ordinary Cash Flow to a Member, such under-distribution shall be paid to such
Member without interest thereon, within 30 days after receipt of such report
or as promptly thereafter as there is sufficient Net Ordinary Cash Flow. For
purposes hereof, the "weighted average" Percentage Interest for any Member
shall be calculated for any period as the quotient of (I) the sum of the
Percentage Interests of such Member on each day during such period divided by
(II) the number of days during such period.
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(c) Net Extraordinary Cash Flow. The Administrative Member shall
calculate Net Extraordinary Cash Flow and apply and distribute (other than as
set forth in Section 6.05(a) and Net Extraordinary Cash Flow arising from a
sale incidental to the dissolution and liquidation of the LLC which shall be
distributed in accordance with Section 11.03 and subject to the terms and
provisions of Section 6.08 and Section 11.04) such Net Extraordinary Cash
Flow, reasonably and promptly after the LLC's receipt thereof, to the Members
in the following proportions:
(i) to Investor and Reckson, pro rata in proportion to
their respective Percentage Interests until Investor
shall have received an amount equal to Investor's
Outstanding Capital Contributions (excluding the
Transfer Tax Amount);
(ii) next, to Investor until Investor shall have received
an amount equal to the Unreturned Transfer Tax Amount;
(iii) next to Investor and Reckson, pro rata, in proportion
to their respective Percentage Interests until
Investor shall have received a 12.5% Internal Rate of
Return; and
(iv) the balance of such Net Extraordinary Cash Flow, if
any, to each of Investor and Reckson in accordance
with their respective Promote Percentages.
The Administrative Member agrees to cause the Property Owner to make
distributions of any net cash receipts other than ordinary operating income
promptly following the Property Owner's receipt thereof.
(d) No Restoration of Funds. Except as provided in Section
6.05(b), no Member shall be required to restore to the LLC any funds properly
distributed to such Member pursuant to any of the provisions of this Section
6.05 or Section 11.03 unless required by Legal Requirements.
(e) Limitation on Distributions. No Member shall be entitled to
(i) receive any distribution from the LLC (including a withdrawal of any of
such Member's capital) except pursuant to this Section 6.05, (ii) receive
interest from the LLC upon any capital contributed to the LLC, or (iii)
receive property other than cash in return for such Member's Capital
Contributions.
6.06 Compliance with the Fractions Rule. Notwithstanding anything
to the contrary contained herein, allocations under this Agreement shall be
made only to the extent that, and shall be adjusted to the extent necessary to
ensure that, assuming that Investor is a "qualified organization" within the
meaning of Section 514(c)(9)(C) of the Code, the LLC's allocations satisfy the
requirements of Section 514(c)(9)(E) of the Code, the Treasury Regulations
promulgated thereunder and any administrative guidelines or pronouncements
thereunder, including so that all allocations have "substantial economic
effect" for the purposes of Section 514(c)(9)(E)(i)(II) of the Code. To the
extent any adjustment to the allocations under this
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Agreement have been, are or will be made as a result of this Section 6.06 and
such adjustments could adversely affect the amount or timing of any
distributions that would otherwise be made to Reckson pursuant to Section 6.05
or Section 11.03, Investor agrees to reasonably cooperate with Reckson to make
such changes as shall be requested by Reckson to eliminate or reduce the
effect of any such adjustments to the allocations under this Agreement,
including, to the extent applicable, by allowing the Transfer of a de minimis
interest in Reckson or any Reckson Affiliate (and any subsequent Transfer of
such de minimis interest) that holds all or a portion of Reckson's Interest;
provided, however, that such changes do not in any way adversely affect
Investor.
6.07 Withholding Taxes. If the LLC is required to withhold any
portion of any distribution or allocation to a Member by applicable federal,
state, local or foreign tax laws, the LLC shall withhold such amounts and make
such payments to such taxing authorities as are necessary to ensure compliance
with such tax laws. Any funds withheld by reason of this Section 6.07 shall
nonetheless be deemed distributed or allocated (as the case may be) to the
Member in question for all purposes under this Agreement. If the LLC makes any
payment to a taxing authority in respect of a Member hereunder that is not
withheld from actual distributions to the Member, then the LLC may, at its
option, (i) require the Member to reimburse the LLC for such withholding
(along with interest at the Default Loan Rate from the date of such
withholding until reimbursed or subsequently withheld from distributions); or
(ii) reduce any subsequent distributions to such Member by the amount of such
withholding (along with interest at the Default Loan Rate from the date of
such withholding until reimbursed or subsequently withheld from
distributions). The obligation of a Member to reimburse the LLC for taxes that
were required to be withheld shall continue after such Member Transfers its
interest in the LLC or after a withdrawal by such Member. Each Member agrees
to furnish the LLC with any representations and forms as shall reasonably be
requested by the LLC to assist it in determining the extent of, and in
fulfilling, any withholding obligations it may have.
6.08 Venture Administrative Fee. Through and including December
31, 2010, Investor shall, if and to the extent distributions of Net Ordinary
Cash Flow or Net Extraordinary Cash Flow shall be sufficient, pay, each
calendar month, to Reckson a venture administrative fee (the "Venture
Administrative Fee") in an amount equal to one-twelfth (1/12) of twenty-eight
and one-half (28.5) basis points multiplied by Investor's Gross Investment, to
be paid solely out of distributions of Net Ordinary Cash Flow or Net
Extraordinary Cash Flow due to Investor. In furtherance of the foregoing,
Administrative Member shall deduct from any amounts otherwise payable to
Investor pursuant to Section 6.05(b) or 6.05(c), as the case may be, and shall
pay to Reckson an amount equal to any Venture Administration Fee due and
payable to Reckson, including, without limitation, any past due Venture
Administration Fee (but without interest thereon) from prior calendar months
that remain due and payable to Reckson. For U.S. federal income tax purposes,
the Venture Administration Fee shall be treated as an expense of Investor and
not of the LLC.
6.09 Intentionally Omitted.GACC Loan Collateral Letters of Credit.
At least ten (10) Business Days prior to the date which is five (5) Business
Days prior to any date on which the Property Owner is required to post one or
more Collateral Letters of Credit (as defined in the GACC Loan Agreement)
pursuant to the terms and provisions of Section 16.2 of the GACC Loan
Agreement, Administrative Member shall give written notice of such obligation
to
- 33 -
each non-Administrative Member, provided the only consequences of a failure to
deliver such notice are those described in clause (III) below. On or prior to
the date which is five (5) Business Days prior to the date such Collateral
Letters of Credit are required to be delivered pursuant to the GACC Loan
Agreement, the Administrative Member shall provide, or cause to be provided,
its pro rata share (based upon Percentage Interests) of such required letters
of credit and shall provide a copy of such letters of credit to the other
Members. On or prior to the later of (i) the date which is five (5) Business
Days prior to the date such Collateral Letters of Credit are required to be
delivered pursuant to the GACC Loan Agreement or (ii) the expiration of the
ten (10) Business Day notice period described above, the non-Administrative
Members shall each provide, or cause to be provided, their pro rata share
(based upon Percentage Interests) of such required letters of credit (each
Member's obligation under this sentence and the immediately preceding sentence
is an "L/C Obligation"). In the event a Member fails to timely meet its L/C
Obligation (the "L/C Defaulting Member") and the other Member (the "L/C
Contributing Member") timely provides an L/C (or L/C's) on the L/C Defaulting
Member's behalf (such L/C(s) are "Back-Up L/C's"), then:
(I) the L/C Defaulting Member shall pay all costs incurred
by the L/C Contributing Member in connection with
providing the Back-Up L/C(s) (including any letter of
credit fees or other security posted with the issuing
bank) (the "Additional L/C Costs") plus interest at
the LIBOR Default Rate on both (X) any unpaid portion
of the Additional L/C Costs and (Y) the face (i.e.,
principal) amount of any Back-Up L/C's (the "L/C
Principal Amount") for the period from the date
incurred until the date repaid (except with respect to
the L/C Principal Amount, such interest shall
terminate on the date, if any, the Back-Up L/C(s) are
returned to the applicable Member);
(II) if any Back-up L/C is drawn upon by GACC, then
simultaneously with such draw, the L/C Defaulting
Member shall be deemed to be an obligor under a
Default Loan under Section 5.02(b) which shall have a
principal amount equal to the portion of the face
amount of such Back-Up L/C so drawn (the "L/C Draw
Amount") plus the unpaid Additional L/C Costs, except
that the interest payable on such Default Loan shall
be at the greater of the Default Loan Rate or the
LIBOR Default Rate. If the Default Loan is not repaid
in full to the L/C Contributing Member on or prior to
the date that is 90 days after the initial date of the
Default Loan hereunder, the L/C Contributing Member
shall have the option, exercisable within 30 days
following the expiration of such 90-day period, to
cause the L/C Draw Amount and the Additional L/C Costs
to constitute "Contributing Member Contributions"
under Section 5.02(b)(ii); except that the number
"1.25" in Section 5.02(b)(ii) (solely for purposes of
this Section 6.10) shall be deemed to be "1.50";
(III) if a non-Administrative Member is not required to
provide, or cause to be provided, its proportionate
share of the Collateral
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Letters of Credit prior to the date required pursuant
to the GACC Loan Agreement and a L/C Contributing
Member timely provides a Back-Up L/C in place of such
non-Administrative Member's L/C, such
non-Administrative Member shall reimburse the L/C
Contributing Member's actual out-of-pocket costs
incurred in connection therewith through the earlier
to occur of (x) Administrative Member's receipt of
such non-Administrative Member's L/C and (y) the
expiration of the ten (10) Business Day notice period
described in Section 6.10(a) above, and, after such
expiration, unless and until delivery of such
non-Administrative Member's L/C to the Administrative
Member, such non-Administrative Member shall be a L/C
Defaulting Member and subject to the terms and
provisions of paragraphs (I) and (L) above.
Any amounts payable under paragraphs (I), (II) and (III) above
shall be paid in accordance with Section 6.05(a) above and not distributed to
the defaulting Member and, in such event, shall be treated for all purposes of
this Agreement as if such amounts were distributed to such defaulting Member.
(b) If both Members timely meet their L/C Obligations and GACC
draws upon the letters of credit in a manner that results in one Member having
amounts on its letter of credit drawn down in an amount which is
disproportionately higher than the draw down on the letter of credit of the
other Member (the amount of any such disproportion, hereinafter referred to as
the "Disproportionate Draw Amount"), the second such Member shall reimburse
the first Member, within ten (10) Business Days of such draw down, an amount
equal to (i) the Disproportionate Draw Amount, plus (ii) an amount equal to
the interest accrued and payable by the first Member on the Disproportionate
Draw Amount from the date drawn down until the reimbursement by the second
Member. Any such amount not reimbursed within such ten (10) Business Day
period shall be deemed to be a Default Loan and subject to the terms and
provisions of Section 5.02(b).
(c) Any amounts payable under this Section 6.10 (other than any
actual or deemed payments resulting from a contribution of any Default Loan to
the Company) shall, for U.S. federal income tax purposes, be treated as a
payment made, and where applicable, an expense incurred by, the Member making
such payment.
ARTICLE VII
MANAGEMENT
7.01 Management Committee. (a) Until such time as Citibank
exercises the Citibank Surrender Option, the business and affairs of the LLC
shall be managed and operated under the direction of the management committee
of the LLC (the "Management Committee") which shall make all decisions on
behalf of the LLC (subject to the terms of this Agreement) including, without
limitation, Major Decisions. Following such time as the Citibank Surrender
Option is exercised, the Administrative Member shall, in accordance with the
terms and
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provisions of Section 7.03(a), manage and operate the business and affairs of
the LLC, subject to the right of the Management Committee to approve Major
Decisions and the remaining provisions of this Agreement. The Reckson Members,
on the one hand, and the Investor Members, on the other hand, shall each elect
one (1) member (the "Reckson Committee Member" and the "Investor Committee
Member", respectively) to the Management Committee, which shall consist of a
total of two (2) members. The Reckson Members and the Investor Members may
each appoint up to three (3) alternate members of the Management Committee
(consisting of a total of up to six (6) alternate members). The Management
Committee shall meet regularly to review the operations of the Applicable
Entities and the Property but not less often than once per calendar quarter.
Any one of the alternate members appointed by the Reckson Committee Member and
by the Investor Committee Member shall be entitled to act on behalf of the
Reckson Committee Member and the Investor Committee Member, respectively, in
their absence. The Reckson Members, or Investor, may, at any time upon not
less than 2 days prior written notice to the other, change its member or
alternate members of the Management Committee.
As of the date hereof, Reckson appoint ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Ill as
its member of the Management Committee and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇ III as alternate members to the Management Committee.
As of the date hereof, Investor appoints, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as its
member of the Management Committee and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and T.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as alternate members to the Management Committee.
(b) The Management Committee shall meet at the request of the
Reckson Members' Group Agent or Investor Members' Group Agent. Such meetings
may be called by either member of the Management Committee upon not less than
2 Business Days prior notice to the other member of the Management Committee.
The attendance of a member of the Management Committee at a meeting of the
Management Committee either in person or telephonically (other than for the
purposes of protesting the absence of notice of the meeting) shall constitute
a waiver of notice of such meeting. The meetings of the Management Committee
may be held (i) at the Property or the principal place of business of the
Administrative Member, if applicable, if in Manhattan, (ii) by telephone
conference or (iii) by other means determined by the members of the Management
Committee. No meeting shall be conducted unless both of the members of the
Management Committee are present. Telephonic participation in any meeting by
either member of the Management Committee shall constitute such member's
presence at such meeting for all purposes of this Agreement. Any decision made
by the Management Committee at a duly convened meeting shall constitute the
act of and approval by the Management Committee and shall be binding upon the
LLC. The decisions of the Management Committee shall be reflected in the
minutes of the Management Committee meetings or in resolutions adopted by the
Management Committee. Any decision or other action required or permitted to be
taken at any meeting of the Management Committee may be taken without a
meeting by written resolution if a copy of such resolution is delivered to
both members of the Management Committee and shall be effective upon the date
on which both members of the Management Committee consent thereto in writing.
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(c) Failure by a member of the Management Committee (or such
member's alternate) to be present at a scheduled meeting of the Management
Committee shall constitute a deadlock between the Management Committee members
with respect to the matter(s) which are the subject of such meeting and,
accordingly, such matter(s) shall be deemed disapproved.
(d) The members of the Management Committee shall not receive
compensation for their positions as members of the Management Committee. Each
Member shall pay all expenses associated with its Management Committee
member's attendance of meetings of the Management Committee.
(e) Each Management Committee member may, in making Major
Decisions, act in the interests of the Member it represents without
considering the interests of the LLC or of any Unaffiliated Member and without
incurring any liability therefor to the LLC or any Unaffiliated Member
(including, without limitation, any liability for breach of fiduciary
obligations).
7.02 Major Decisions. Without the unanimous approval of the
Management Committee, the Administrative Member will not be permitted to cause
the LLC to take (or, when applicable, cause the Property Owner to take) any
action that would constitute a Major Decision. The "Major Decisions" are:
(a) selling, transferring, assigning, conveying, exchanging or
otherwise disposing of the LLC Assets or the assets of the Property Owner
other than (i) personal property, fixtures and equipment at the Property which
may be disposed of or replaced due to wear and tear or obsolescence or
otherwise in the ordinary course of business, (ii) Leases, which shall be
governed by Section 7.02(d) and (iii) a sale of the Property, in accordance
with Section 10.01;
(b) borrowing money on behalf of the LLC or the Property Owner
(including any Mortgage Loan other than the GACC Loan which is in effect as of
the date hereof and the terms and provisions of which are hereby approved by
the parties hereto) whether on a secured or unsecured basis (other than
Permitted Equipment Financings if permitted under the Mortgage Loans) or
refinancing, recasting, extending, compromising or otherwise materially
amending any Mortgage Loan or unsecured loan;
(c) acquiring any additional real property or any interest in any
legal entity;
(d) (i) entering into a Lease of more than two (2) floors of
the Building (regardless of the size of the floor) (a
"Major Lease");
(ii) entering into a Lease which materially deviates (on a
net present value basis) from the parameters of the
Leasing Guidelines; or
(iii) (A) amending or modifying a Major Lease, (B)
terminating a Major Lease or (C) providing any consent
under a Major Lease unless any such consent is
required pursuant to the terms and provisions of the
applicable Major Lease and is not subject to the
discretion of the landlord thereunder.
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(e) (i) instituting any major litigation where the amount in
controversy exceeds $500,000; provided that the Administrative Member may,
upon notice to the Members but without the Management Committee's consent,
institute any litigation against a tenant which has defaulted under its Lease
or (ii) settle any major litigation or dispute where the LLC or the Property
Owner is obligated to make a payment greater than $500,000 net of insurance
recoveries; provided that the Administrative Member will agree to notify the
Members prior to settling any litigation that does not require the Management
Committee's consent if the LLC or the Property Owner is obligated to make a
payment of greater than $20,000 net of insurance recoveries to effectuate such
settlement;
(f) approving any material modification to any Applicable Entity's
or Managing Agent's, as and when there is a Managing Agent for the Property,
existing insurance program, such approval not to be unreasonably withheld or
delayed and shall be deemed approved if the non-Administrative Member(s) shall
fail, within 10 days following Administrative Member's delivery to the
non-Administrative Member(s) of a notice of such modification, to object in
writing (such objection to state the basis for the same). A "material
modification" shall not be deemed to have occurred if Administrative Member or
Managing Agent shall modify an insurance program to (i) cause Property Owner
to be in compliance with (x) an outstanding Mortgage Loan or (y) a Major Lease
or (ii) replace an existing insurance carrier so long as the replacement
carrier has a rating in Best Insurance Reports not lower than the rating of
the existing insurance carrier at the time the existing carrier was approved
(it being acknowledged that if a change in insurance carriers shall be
accompanied by a material increase in the cost and/or a material reduction in
the scope of insurance coverage, such change shall be deemed a "material
modification"). Any dispute arising under this clause (f) shall be resolved by
arbitration in accordance with Article XV and, until such dispute shall be
resolved, Administrative Member shall (to the extent commercially practicable)
cause the Applicable Entity or Managing Agent, if applicable, to maintain the
insurance program(s) in effect immediately prior to the modification in
dispute;
(g) selecting or changing the auditor for the LLC or the Property
Owner; provided the non-Administrative Members shall (x) not unreasonably
withhold or delay their consent to any so-called "Big Four" accounting firm
selected by Administrative Member and (y) be deemed to have consented to the
"Big Four" accounting firm in question if within 10 days following
Administrative Member's delivery of a written notice stating the proposed "Big
Four" auditor, the non-Administrative Member(s) fail to object in writing
(such objection to state the basis for the same). Any dispute arising under
this clause (g) shall be resolved by arbitration in accordance with Article
XV. Notwithstanding the foregoing, the parties hereto agree that Ernst &
Young, LLP shall be deemed to be acceptable as the LLC Accountant and the
selection of Ernst & Young, LLP as such will not constitute a Major Decision.
(h) approving the Property Owner entering into, waiving any of its
material rights under or modifying, any Management Agreement; provided,
however, subject to the terms of Section 7.04(a), the consent of the
non-Administrative Member shall not be required for the Property Owner to
enter into a Management Agreement with Reckson or an Affiliate of Reckson as
the Managing Agent, provided that such Management Agreement is in the form
attached hereto as Exhibit B, with such changes as may be agreed upon by the
Management Committee, in
- 38 -
accordance with the terms and provisions of Section 7.07, which such
Management Agreement shall be renewable without the consent of the Management
Committee or the non-Administrative Member;
(i) approving any proposed material changes to the zoning of the
Property other than those expressly contemplated by an approved Business Plan
or as may be required to be consented to by the Property Owner pursuant to the
Citibank Lease, any other Major Lease, any zoning lot development agreement,
or any title matter that appears as an exception to the Property Owner's
owner's title insurance policy insuring its interest in the Property;
(j) admitting additional members into an Applicable Entity other
than transferees (or pledgees) permitted under this Agreement;
(k) incurring, or causing the Property Owner to incur, any
expenditure, charge or cost in any Fiscal Year (other than Necessary Expenses)
which is inconsistent with the Business Plan or exceeds (i) a Major Line Item
by more than 5% or (ii) the aggregate amount of the Budgets by more than 2%
(exclusive of increases attributable to temporary timing differences arising
in the ordinary course of business which Administrative Member reasonably
expects will be reversed over time);
(1) engaging in any transaction between an Applicable Entity and
any Member or Affiliate of a Member other than, subject to the terms of
Section 7.04(a), (A) a Management Agreement in the form attached hereto as
Exhibit B, with such changes as may be agreed upon by the Management
Committee, and entered into in accordance with the terms and provisions of
Section 7.07, and (B) the transactions described in Section 7.04 below;
(m) modifying or supplementing any organizational documents of any
Applicable Entity;
(n) dissolving, terminating or liquidating any Applicable Entity
or causing or permitting any Applicable Entity to merge, consolidate or
otherwise combine with any other Person (including any Applicable Entity);
(o) Intentionally Omitted.
(p) making any in-kind distribution;
(q) prepaying any indebtedness (including the GACC Loan) other
than Permitted Equipment Financings if permitted under the Applicable Loan
Documents;
(r) confessing to any judgment other than in connection with any
tax dispute with any federal, state or local taxing authority;
(s) settling any tax certiorari proceeding other than for tax
years prior to the tax year in which the date of this Agreement occurs;
- 39 -
(t) settling any dispute with any taxing authority concerning the
computation or allocation of any item of LLC income, gain, loss deduction or
credit for federal, state or local tax purposes;
(u) hiring of any employees or entering into any collective
bargaining agreement for union labor contracts ("Union Contracts"); it being
acknowledged however that (I) to the extent permitted by the Applicable Loan
Documents, an Applicable Entity may be deemed to hire or to have hired
employees or to enter into, or have entered into, Union Contracts as a result
of Managing Agent's, if any, compliance with, or agreement to bind the
Property to, Property-Binding Arrangements now or hereafter in effect; and
(II) Managing Agent, if any, may hire employees (who will be employees of the
Managing Agent) and enter into Union Contracts.
(v) taking any of the following actions: (i) commencement by any
Applicable Entity of any case or proceeding in respect of such Applicable
Entity under any federal or state law relating to bankruptcy, insolvency,
reorganization or relief of debtors, (ii) the institution of any proceedings
by any Applicable Entity to have such Applicable Entity adjudicated as
bankrupt or insolvent, (iii) any Applicable Entity's consent to the
institution of bankruptcy or insolvency proceedings against such Applicable
Entity, (iv) the filing by any Applicable Entity of a petition, or such
Applicable Entity's consent to a petition, seeking reorganization,
arrangement, adjustment, winding up, dissolution (in connection with
bankruptcy or insolvency), composition, liquidation (in connection with
bankruptcy or insolvency) or other relief of such Applicable Entity's debts
under any federal or state law relating to bankruptcy, (v) any Applicable
Entity's seeking or consenting to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator or custodian for such Applicable Entity or for
all or substantially all of its properties, (vi) the making by any Applicable
Entity of an assignment for the benefit of such Applicable Entity's creditors
or (vii) the taking by any Applicable Entity of any action in furtherance of
any of the foregoing; and
(w) selecting a replacement Managing Agent, in the event that none
of the Approved Agents are satisfactory to the non-Administrative Member
pursuant to the terms and provisions of Section 7.04(c) below.
7.03 Administrative Member. (a) Subject to the provisions and
restrictions set forth in this Article VII, the Administrative Member shall
have the obligation and authority to (i) implement all decisions of the
Management Committee, including all Major Decisions as directed by the
Management Committee, (ii) perform such ministerial acts as may be necessary
to conduct the day-to-day business and affairs of the LLC, subject to, and in
accordance with this Agreement and the decisions of the Management Committee,
and (iii) perform or observe all of the specific obligations to be performed
by the Administrative Member hereunder. Administrative Member agrees to devote
to the LLC's business such time as reasonably shall be necessary in connection
with its duties and responsibilities hereunder and shall take such actions as
shall be prudent and appropriate for the proper management and supervision of
the business of the LLC and to carry out the obligations under this Agreement.
Administrative Member shall be authorized to take any action which is
specifically authorized or contemplated by the approved Business Plan, to make
any expenditure set forth in an approved Budget, or as otherwise expressly
authorized by this Agreement.
- 40 -
(b) The Administrative Member may be removed as Administrative
Member by written notice from the "non-Administrative Member", which shall
mean (x) the Investor Members, in the event a Reckson Member is the
Administrative Member or (y) Reckson in the event an Investor Member is the
Administrative Member, in each case upon ten (10) Business Days written
notice, should any of the following events occur, each of which shall be
considered a "Administrative Member Default":
(i) if the Administrative Member shall become Bankrupt;
(ii) it is finally determined by a court or forum of
competent jurisdiction that the Administrative Member committed fraud, willful
misconduct or gross negligence (which was committed by a member of Senior
Management of Reckson) in the conduct of its duties under this Agreement;
provided, however, notwithstanding the foregoing, in the event that a member
of Senior Management of Reckson commits gross negligence (as opposed to either
fraud or willful misconduct), such commission of gross negligence shall not
constitute an Administrative Member Default if such member of Senior
Management of Reckson is replaced promptly following the Administrative
Member's knowledge of such occurrence of gross negligence;
(iii) an unpermitted Transfer by the Administrative Member
or its Affiliated Member shall have occurred; or
(iv) the direct or indirect ownership interest in the LLC of
Reckson Operating Partnership, L.P. shall collectively be less than ten
percent (10%).
Notwithstanding any other term of this Agreement, in the event
that a default described in clause (iii) above (a "Clause (iii) Default")
shall have occurred, an Administrative Member Default shall not be deemed to
have occurred until the Administrative Member shall have received a written
notice of default (a "Clause (iii) Default Notice") from the
non-Administrative Member specifying such default and the Administrative
Member shall not have cured the claimed default to the satisfaction of the
non-Administrative Member within a period of 30 days and if the cure cannot
reasonably be completed within such 30-day period, then the Administrative
Member shall have an additional 30-day period to effect the cure so long as
the Administrative Member is diligently prosecuting the cure within such
additional 30-day period; provided, in the event a Clause (iii) Default shall
have occurred and a Clause (iii) Default Notice is given and such Clause (iii)
Default is cured within the cure periods set forth above, then, with respect
to any subsequent Clause (iii) Default Notice received following a subsequent
Clause (iii) Default, Administrative Member shall not be entitled to any of
the cure periods set forth above and such second Clause (iii) Default Notice
shall serve as the Administrative Member Default notice required under the
first sentence of Section 7.03(c). The Administrative Member shall not be
removed by an Unaffiliated Member on account of the Administrative Member
Defaults set forth in clauses (i) and (iii) if on or prior to the date of such
Administrative Member Defaults the non- Administrative Member shall have
committed or suffered to have occurred with respect to it an action or an
event of a nature comparable to any of the Administrative Member Defaults set
forth in clauses (i) and (iii) and shall not have remedied such defaults
within the cure periods provided above.
- 41 -
7.04 Goods and Services from Affiliates/Enforcement. (a) Until
such time as Citibank exercises the Citibank Surrender Option, no Affiliate
Agreement may be entered into without the consent of all Members. Following
such date, in addition to the Management Agreement, the Administrative Member
may cause an Applicable Entity to enter into agreements or other arrangements
(and amend or modify the same) for the furnishing to an Applicable Entity of
goods or services by any Affiliate of the Administrative Member (including,
but not limited to, agreements or arrangements for the construction of tenant
improvements and other construction relating to the Property and telephone,
internet and other communication services) if (i) each such agreement or other
arrangement shall (x) be of a duration and contain other terms which are fair
market and (y) provide that it may be terminated without penalty upon the
Administrative Member's termination as Administrative Member pursuant to the
provisions of this Agreement and (ii) the Affiliate in question shall provide
services consistent with the quality of services offered in first-class office
buildings in Manhattan. Notwithstanding the foregoing, Administrative Member
shall not cause an Applicable Entity to enter into any agreement or
arrangement with an Affiliate which provides for payment to such Affiliate of
an amount greater than $50,000 per annum (to be increased by the CPI Increase)
unless the Administrative Member shall furnish to the Unaffiliated Members for
their reasonable approval a summary (each, an "Affiliate Agreement Summary")
of the material terms of such agreement or arrangement and other infonnation
reasonably requested by such Unaffiliated Member. If the Unaffiliated Members
shall reasonably believe that the Affiliate agreement or arrangement described
in the Affiliate Agreement Summary violates the terms of clauses (i) or (ii)
above, then the Unaffiliated Members may object in writing to such agreement
or arrangement (such objection to state the specific basis for the same). If
the Unaffiliated Members shall fail to so object within 10 days following the
delivery of an Affiliate Agreement Summary, the agreement or arrangement in
question shall be deemed approved by the Unaffiliated Members. Any dispute
arising under this Section 7.04(a) shall be resolved by arbitration in
accordance with Article XV.
(b) Administrative Member shall use commercially reasonable
efforts to enforce in all material respects the obligations of (x) Managing
Agent under the Management Agreement, if any, and (y) the other Affiliates of
the Administrative Members which are parties to agreements entered into under
Section 7.04(a) above (such agreements in clauses (x) and (y), collectively
with the Management Agreement, are the "Affiliate Agreements"). If the
Unaffiliated Member shall request in writing to the Administrative Member that
the Administrative Members enforce a specific obligation under an Affiliate
Agreement and the Administrative Members shall not, promptly following receipt
of such request, proceed diligently to enforce such obligation, the
Unaffiliated Members' may, as their sole remedy, cause the Applicable Entity
to exercise any right or remedy available to the Applicable Entity under the
Affiliate Agreement in question. Any dispute arising under this Section
7.04(b) shall be resolved by arbitration in accordance with Article XV.
(c) If the Managing Agent is an Affiliate of the Reckson Members
and shall voluntarily elect to terminate the Management Agreement pursuant to
Section VII(D) of the Management Agreement, the Investor Members shall select
a replacement Managing Agent from a list of three (3) Approved Agents (the
"Listed Agents") prepared by the Reckson Members. If none of the three (3)
Listed Agents are acceptable to the Investor Members, the selection of the
replacement Managing Agent shall be a Major Decision.
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7.05 The Business Plan. (a) For each Fiscal Year during the Term,
the Administrative Member shall prepare a business plan (the "Business Plan")
for the Property to be approved by the Management Committee. Each Business
Plan shall be comprised of an operating budget (each, an "Operating Budget)";
a capital improvement budget (each, a "Capital Budget"; the Operating Budget
and the Capital Budget are collectively, the "Budgets") and, after Citibank's
delivery to the Property Owner of notice of its exercise of the Citibank
Surrender Option (or other surrender by Citibank of space at the Property),
leasing guidelines (the "Leasing Guidelines"). Each Operating Budget shall
show, on a month-by-month basis, in reasonable detail, each line item of
anticipated income and expense required to be made with respect to the
Property during such Fiscal Year including, without limitation, amounts
required to establish, maintain and/or increase Cash Reserves. Each Capital
Budget shall show, in reasonable detail, anticipated expenditures for Capital
Improvements with respect to the Property or any portion thereof. The Leasing
Guidelines shall specify the projected net average effective rent over the
projected term of each Lease on a space-by-space basis, taking into account
base rent, the term of the Lease, leasing commissions due to all outside
leasing brokers and as set forth in the Management Agreement (including
overrides to Managing Agent), tenant improvements, free rent and any other
tenant concessions. For the sake of clarity, the parties confirm that the
Administrative Member need not furnish Leasing Guidelines for any space at the
Property that is leased or is not reasonably anticipated to become available
for leasing during such Fiscal Year. Notwithstanding the foregoing within 30
days after the exercise by Citibank of the Citibank Surrender Option (or other
surrender by Citibank of space at the Property), the Administrative Member
shall prepare Leasing Guidelines for the Property to be approved by the
non-Administrative Member.
(b) Not later than October 1st of each Fiscal Year during the
Term, the Administrative Member shall prepare in consultation with the
non-Administrative Member and deliver to the Management Committee a draft
Business Plan for the following Fiscal Year. Not later than November 1st of
each Fiscal Year during the term of this Agreement, the Administrative Member
shall prepare and deliver to the Management Committee a revised Business Plan
for the following Fiscal Year, reflecting any of Administrative Member's
revisions to the draft Business Plan. Within 30 days after delivery of such
revised Business Plan, the Management Committee shall in writing, either
approve the entire revised Business Plan, in which case such revised Business
Plan shall constitute the "Business Plan", or shall disapprove, modify or
otherwise comment on specific items contained therein (collectively, the
"Comments"), which Comments shall be accompanied by a statement of the reasons
therefor; provided, the Management Committee shall be required to approve any
commercially reasonable amount which is necessary to perform any obligation
under Leases or contracts with third parties, if (i) such Leases or contracts
were approved by the Management Committee or did not require the approval of
the Management Committee and (ii) no Applicable Entity has discretion in
satisfying such obligation. If the Management Committee shall have provided
any Comments to the revised Business Plan, the Administrative Member shall
submit, within 15 days following receipt of the Comments, a further revised
Business Plan which may incorporate the Comments or may not incorporate the
Comments, in whole or in part. If the Management Committee shall fail to
approve, in writing, all or any portion of the revised Business Plan on or
prior to the expiration of the 30-day period set forth above (or if any
Comments are not incorporated by the
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Administrative Member into such further revised Business Plan draft), the
Management Committee shall be deemed to have rejected the same (or such
unincorporated Comments) and, accordingly, the Business Plan for such Fiscal
Year shall be implemented in accordance with paragraph (e) below.
(c) The Administrative Member may at any time request the
Management Committee's consent to modify the Business Plan on account of
unanticipated market changes, or for any other reason, such consent not to be
unreasonably withheld or delayed and shall be deemed rejected if the
Management Committee shall fail to grant or deny such consent within 10
Business Days after receipt of the proposed modification. The Business Plan,
as modified in accordance with this subsection (c), shall be deemed to be the
"Business Plan" for all purposes herein. The Members acknowledge and agree
that the figures set forth in each Business Plan are only estimates and not a
guaranty by the Administrative Member and there may be substantial variations
between the estimates set forth in a Business Plan and actual results.
(d) The Administrative Member shall use reasonable efforts to
cause the Property Owner to cause the Managing Agent to operate the Property
in conformity with the applicable Business Plan and the permitted variances
therefrom as set forth in Section 7.02(k).
(e) During any period when the Management Committee shall fail to
approve portions of the Business Plan prior to the commencement of the Fiscal
Year to which such Business Plan relates, the Property shall be operated
during such Fiscal Year (A) in accordance with such portions of such Business
Plan as to which agreement has been reached, (B) at rates or levels of
expenditures as are actually charged or incurred with respect to Necessary
Expenses and (C) with respect to those portions of such Business Plan which
are discretionary, increased by the CPI Increase (computed for this purpose
from the January 1st of the last Fiscal Year for which a Business Plan was
approved to December 31st of the Fiscal Year immediately preceding the Fiscal
Year to which the Business Plan in dispute relates).
(f) On the date hereof the Members have adopted the Business Plan
for the remainder of the Fiscal Year 2005 and the Fiscal Year 2006 (the
"2005-2006 Business Plan") (it being understood that any Business Plans for
any subsequent Fiscal Years shall not include any portion of the preceding
Fiscal Year).
(g) The Administrative Member shall be entitled to cause the LLC
and the Property Owner to pay all charges as and when due to the extent such
charges are either consistent with the Business Plan or are Necessary
Expenses.
7.06 Other Activities of Members. A Member (or any Affiliate
thereof') may own, purchase, sell, or otherwise deal in any manner with any
property other than the Property without notice to any Unaffiliated Member,
without participation of any Unaffiliated Member, and without liability to the
LLC, the Property Owner or any Unaffiliated Member, and a Member may, without
notice to any Unaffiliated Member and without obligation to present to the LLC
or to the Property Owner or any Unaffiliated Member an opportunity of any kind
whatsoever, acquire, sell, finance, lease, operate, manage, develop or
syndicate any real property not owned by the Property Owner, free of any claim
whatsoever of any Unaffiliated Member, the Property
- 44 -
Owner or the LLC. No Member shall incur any liability to the LLC or to the
Property Owner or any Unaffiliated Member as a result of such Member's
interest in such other property or pursuit of such other business interests,
and neither the LLC nor any Member or the Property Owner shall have any right
to participate in such other property or business or to receive or share in
any income or profits derived therefrom.
7.07 Property Management. Subject to the terms and provisions of
this Agreement (including Section 7.04(b)), after Citibank's delivery to the
Property Owner of notice of its exercise of the Citibank Surrender Option (or
other surrender by Citibank of space at the Property), the Administrative
Member shall cause the Property Owner to engage the Managing Agent to manage
the Property and act as its exclusive leasing agent in accordance with the
Management Agreement.
7.08 Group Members. From and after the date that there is more
than one Reckson Member or more than one Investor Member the following shall
apply to the group of Members ("Group Members") constituting the Reckson
Members or the Investor Members, as the case may be:
(a) all Group Members shall be obligated to approve, consent
or otherwise take any other action permitted to be taken by the Group Members
under this Agreement as one Member constituting the aggregate Interest and
Percentage Interest of all Group Members with respect to all matters under
this Agreement and the Group Members shall be jointly and severally liable for
the actions of the other Group Members under this Agreement;
(b) the Group Members shall designate one Group Member (the
"Group Agent") to act as agent for the Group Members as the primary Group
Member to give or receive Notices hereunder. The Group Members may replace
their Group Agent from time to time upon written notice to all Unaffiliated
Members. Notices given or received by the Group Agent shall be deemed given or
received by all Group Members and shall be binding on all Group Members as if
given or received by each of them; and
(c) without limiting the generality of the foregoing, if a
Group Member is a Non-Contributing Member under Section 5.02(b)(ii), all Group
Members shall deemed to be Non-Contributing Members.
7.09 ERISA. (a) It is understood and agreed that none of the
Management Committee or the members of the Management Committee are or should
be deemed to be fiduciaries with respect to the LLC Assets or shall have such
discretionary authority over the LLC Assets such that they would be deemed to
be fiduciaries and the provisions of this Agreement shall be interpreted
accordingly.
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(b) After Citibank's delivery to the Property Owner of
notice of its exercise of the Citibank Surrender Option (or other surrender by
Citibank of space at the Property), the Members shall, in good faith,
implement such changes to this Agreement or their Interests as may be
necessary to ensure that the LLC Assets and Property Owner's assets shall not
constitute "plan assets" under ERISA.
7.10 REIT Status. Administrative Member shall at all times use
best efforts to conduct the business of the LLC such that (a) the nature of
its assets and gross revenues (as determined pursuant to Section 856(c)(2),
(3) and (4) of the Code) would permit the LLC (determined as if the LLC were a
real estate investment trust ("REIT") for U.S. federal income tax purposes) to
qualify as a REIT under Section 856 of the Code, (b) the LLC will not realize
any income from foreclosure property within the meaning of Section 857(b)(4)
of the Code, and (c) the LLC will not engage in a prohibited transaction
within the meaning of Section 857(b)(6) of the Code; provided, that
Administrative Member shall be deemed to have complied with and shall have no
further obligations under this Section 7.10 with respect to any matter that is
approved as a Major Decision or otherwise approved in writing by the Members
other than Administrative Member.
7.11 UBTI Matters. Administrative Member acknowledges that certain
direct or indirect members of Investor are "Qualified Organizations" as
defined in Section 514(c)(9) of the Code that are exempt from federal income
tax with respect to their investment activities, except to the extent that
such activities generate UBTI or treated as UBTI under Section 514 of the Code
to such members. Administrative Member shall use best efforts to manage and
operate the Property in a manner that will avoid the realization of UBTI,
including but not limited to, the taking of any of the following actions to
the extent such actions would result in the LLC recognizing income that would
be UBTI, if earned by an organization subject to the tax under Section 511 of
the Code:
(i) the acquisition by the LLC of any property to be held
primarily for sale to customers in the ordinary course of the LLC's
trade or business or that would be required to be included in inventory
in the hands of the LLC, or the holding by the LLC of any property
primarily for sale to customers in the ordinary course of the LLC's
trade or business;
(ii) the renting by the LLC of any property pursuant to a lease
under the terms of which rent depends in whole or in part on the net
income or profits derived by any person from the property or
improvements leased, provided that the foregoing shall not include rent
that is based on a fixed percentage or percentages of receipts or sales;
(iii) the renting by the LLC of any real property for which (1)
any portion of the rent (other than a de minimis amount) is attributable
to services provided by the LLC (other than usual or customary services
provided by landlords leasing space for occupancy only) or (2) more than
10% of the rent is or can be attributable to personal property;
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(iv) the incurrence by the LLC of any indebtedness in acquiring or
improving any real property where the amount of the indebtedness or any
amount payable with respect to such indebtedness, or the time for making
any payment, is dependent, in whole or in part, upon the revenue, income
or profits derived from such real property;
(v) the leasing by the LLC of any real property to One Court
Square Member LLC or the incurring of any indebtedness to, or the
securing by the LLC of other financing from such parties; and
(vi) except as otherwise specifically provided for in this
Agreement, (A) the incurrence of indebtedness other than (1)
indebtedness incurred to acquire or improve real property within the
meaning of Section 514(c)(9) of the Code and (2) any ordinary trade
payables and any other indebtedness not treated as "acquisition
indebtedness" under Section 514(c) of the Code and (B) the incurrence of
indebtedness which constitutes "partner nonrecourse debt" within the
meaning of Treasury Regulations Section 1.704-2(b)(4) or the guarantying
of obligations of the Company that causes such obligations to constitute
"partner nonrecourse debt."
Administrative Member agrees that Investor shall be entitled to exercise any
vote, consent, election or other right under this Agreement with a view to
avoiding any UBTI to Investor and its investors and without regard to whether
conducting the business of the LLC in such manner will maximize either pre-tax
or after tax profit of the LLC to a Member which is not a Qualified
Organization. For the purposes of this Section 7.11, Administrative Member
shall be deemed to have used best efforts to avoid the realization of UBTI if
it acts to effectuate any matter that is approved as a Major Decision or
otherwise approved in writing by Investor, provided Investor shall be deemed
to have approved a UBTI matter which is not otherwise a Major Decision, if
Investor does not provide its approval or disapproval in connection with such
UBTI matter within ten (10) Business Days of delivery of a written request for
an approval in connection with such UBTI matter from the Administrative Member
to Investor.
7.12 Approval of Security Cable Catch System. The parties hereto
hereby agree and approve the plans and installation of a security cable catch
system by the tenant under the Citibank Lease at the Property, at such
tenant's expense.
7.13 Management of Investor. At all times that (i) the I&G Fund
owns any direct or indirect interests in Investor, JPMIM (or any Affiliate
thereof) or ▇▇▇▇▇▇ (or any Affiliate thereof) (each an "Acceptable Advisor")
shall be the advisor (directly or indirectly) to the I&G Fund and (ii) SSPF
owns any direct or indirect interests in Investor, an Acceptable Advisor shall
be the advisor (directly or indirectly) to SSPF. Notwithstanding anything to
the contrary contained herein, the term "Affiliate" as used in this Section
7.13 shall mean, when used with reference to a specified Person, any other
Person that directly or indirectly through one or more intermediaries controls
or is controlled by or is under common control with the specified Person.
7.14 Annual Valuation Period. The LLC hereby establishes the
ninety (90) day period commencing each January 1St following the date of this
Agreement as the LLC's
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"annual valuation period" (within the meaning subsection (d)(5)(ii) of the
Plan Asset Regulation). The establishment of an annual valuation period shall
not and is not intended to create any inference with respect to the LLC's
status or intended status as a "real estate operating company" within the
meaning of the Plan Asset Regulations. Furthermore, no Member or other Person
shall be required to take any action or refrain from taking any action under
this Agreement by reason of this Section 7.14, nor shall any Member or other
Person be required to take any action or refrain from taking any action that
may be required for the LLC to qualify as a real estate operating company.
7.15 Affiliate Leases. The Administrative Member shall not permit
the LLC to enter into any Lease, other than Major Leases (which are governed
by the provisions of Section 7.02(d)), with any Person set forth in a notice
delivered from Investor to Administrative Member on the date hereof (the
"Restricted List"). The Administrative Member shall cause the LLC to use
commercially reasonable efforts to cause each Lease, other than a Major Lease,
entered into after the date hereof, to include a representation from the
tenant thereunder that such tenant is not a Person set forth on the Restricted
List. Investor Member shall have the right to add or delete Persons from the
Restricted List from time to time upon written notice to the Administrative
Member given in accordance with the terms and provisions of Section 14.03,
provided that any Person so added shall be a related person (as described in
Section 856(d)(2)(B) of the Code) to a REIT Member. Administrative Member
shall keep the Restricted List confidential in accordance with the terms and
provisions of Section 14.26.
7.16 Management Rights. The Administrative Member shall use best
efforts to exercise its right under Section 3.03 of the Citibank Lease and
meet with Citibank annually; provided, however, that the Administrative Member
shall not have any liability if it fails to comply with its obligations under
this Section 7.16. The exercise of the right to meet with Citibank (and
meeting with Citibank) shall not and is not intended to create any inference
with respect to the LLC's status or intended status as a "real estate
operating company" within the meaning of the Plan Asset Regulations.
Furthermore, no Member or other Person shall be required to take any action or
refrain from taking any action that may be required for the LLC to qualify as
a real estate operating company.
ARTICLE VIII
BANK ACCOUNTS; BOOKS AND RECORDS;
STATEMENTS; TAXES; FISCAL YEAR
8.01 Books of Account. At all times during the existence of the
LLC, the books of account of the LLC shall be prepared and kept by the
Administrative Member, at the expense of the LLC, in accordance with GAAP,
which shall reflect all of the transactions relating to the Applicable
Entities and the Property and shall be appropriate and adequate for the
business of the Applicable Entities and the Property, and which books of
account shall be maintained at the principal place of business of the
respective Applicable Entity. Any Member or its duly authorized
representatives shall have the right at any time to inspect and copy such
books of account during normal business hours upon reasonable notice. Any
Member and its duly authorized representatives shall have the right to examine
(and copy) or conduct an audit of the
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LLC's books and records at any time during normal business hours and upon
reasonable notice at the LLC's principal place of business. Any such
examination or special audit (i.e., audits other than the annual audits for
the LLC which shall be conducted as of December 31 at the LLC's sole cost and
expense) shall be performed at such Member's sole cost and expense.
8.02 Fiscal Year. Unless the Members shall agree otherwise, the
fiscal year of the LLC for financial, accounting, federal, state and local
income tax purposes (the "Fiscal Year") shall be the calendar year (except
that the first Fiscal Year of the LLC (for financial and accounting purposes)
shall begin on the date hereof and the last Fiscal Year of the LLC shall end
on the last day of the term of this Agreement).
8.03 Bank Accounts. All funds of the LLC shall be deposited in the
LLC's name in one or more separate bank accounts (each, a "Bank Account") at a
United States based bank selected by the Administrative Member. Each Bank
Account shall provide for a "sweep" feature, automatically transferring excess
funds to an interest bearing account investing in securities such as
commercial paper. Each such Bank Account shall be used exclusively for the
LLC's funds and no other funds shall be commingled therein. Withdrawals may be
made from such Bank Account only by the Administrative Member and only for
purposes authorized under this Agreement and which are peiinitted under any
Applicable Loan. Subject to the terms and provisions of any Mortgage Loan, the
LLC may, at the Administrative Member's option, establish one or more bank
accounts in the name of the Property Owner to hold the funds of the Property
Owner.
8.04 Financial Statements. (a) Within 90 days after the end of
each Fiscal Year, the Administrative Member shall prepare and deliver to the
Members, at the expense of the LLC, audited financial statements of each
Applicable Entity for the preceding Fiscal Year (the "Annual Report"). The
Annual Report for each Applicable Entity shall include a balance sheet, an
income statement or a statement of operations, statements of the Members'
Capital Accounts, Capital Contributions, Percentage Interests, Statement of
Cash Flows and, for the Property Owner, a Statement of Net Ordinary Cash Flow
and, if applicable, a Statement of Net Extraordinary Cash Flow, all of which
shall be prepared in accordance with GAAP (except for the reports of Net
Ordinary Cash Flow and Net Extraordinary Cash Flow and other reports prepared
on a cash basis) and shall be audited by the LLC Accountants and (except with
respect to the Statements of Net Ordinary Cash Flow and Net Extraordinary Cash
Flow) present fairly the financial position and operating results of each
Applicable Entity.
(b) Within 15 days after the end of each month, the Administrative
Member shall prepare and deliver to the Members an unaudited financial report
for the Property Owner for the preceding month (the "Monthly Report"). The
Monthly Report shall include (I) an income statement or a statement of
operations, (II) a Statement of Net Ordinary Cash Flow, (III) if applicable, a
Statement of Net Extraordinary Cash Flow, (IV) a summary of capital
expenditures for the Property (items I through IV may be provided by
delivering the Monthly Report prepared by Managing Agent to the extent the
Monthly Report states such information) and (V) if not delivered directly to
all Members, a copy of the "Monthly Report" prepared by Managing Agent
pursuant to the Management Agreement, if any.
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(c) The Members acknowledge that any financial projections that
have been or are hereafter delivered to the Members or the Management
Committee (the "Projections") (a) reflect a number of estimates, assumptions
and judgments concerning anticipated results of the Property, (b) were not
prepared with a view to disclosure or compliance with published guidelines of
the Securities and Exchange Commission or the guidelines established by the
American Institute of Certified Public Accountants regarding projections or
forecasts and (c) do not purport to present operations at the Property in
accordance with GAAP. The Projections are and will be subject to certain risks
and uncertainties that could cause actual results to differ substantially from
the Projections. Neither Reckson Member nor any of their Affiliates or
representatives have made or is making any representation to the Members or
the Management Committee or any other person regarding the actual performance
of the Property compared to the information contained in the Projections and
each of them expressly disclaims any representation or warranty, express or
implied, as to the accuracy or completeness of the Projections.
(d) Prior to a Management Agreement being executed and becoming
effective, Administrative Member shall prepare and deliver to the Members any
reports required pursuant to the form of management agreement attached hereto
as Exhibit B to the extent such reports are not required to be prepared and
delivered pursuant to the terms and provisions of this Section 8.04. Such
additional reports shall be prepared and delivered in the manner and time
periods specified in the fonn of management agreement attached hereto as
Exhibit B. In the event of any inconsistency between Exhibit B and the terms
of this Agreement with respect to reporting, the terms of Exhibit B shall
govern.
(e) Prior to a Management Agreement being executed and becoming
effective, so long as the GACC Loan shall remain outstanding, if the terms and
provisions of the Management Agreement differ from those of the form of
management agreement approved by GACC in connection with the GACC Loan,
Administrative Member shall obtain any approvals required in connection
therewith as required pursuant to the GACC Loan Documents.
8.05 Tax Returns; Tax Matters Partner; Tax Elections. (a) As soon
as practicable after the end of each Fiscal Year, but in no event later than
the 75th day following the end of each Fiscal Year, the Administrative Member
shall furnish each Member, at the expense of the LLC, with an estimated
statement of the Member's distributive share of income, gains, losses,
deductions and credits for such Fiscal Year. As soon as practicable after the
end of each taxable year of the LLC but in no event later than one hundred
fifty (150) days after the end of such taxable year, the Administrative Member
shall provide Investor with a copy of the LLC's federal income tax return for
such taxable year for its review and comment. The Administrative Member agrees
to resolve in good faith any amendments or changes to the LLC's federal income
tax return requested by Investor, provided that Investor requests such
amendment or change within ten (10) days after receipt of such tax return for
its review and comment, and such amendment or change is not inconsistent with
the terms of this Agreement, provided that in no event shall the
Administrative Member be required to accept any such amendment or changes
requested by Investor. If Investor does not provide any comments to the LLC's
federal income tax return within the foregoing ten (10) day period, Investor
shall be deemed to have consented to the filing of the LLC's federal income
tax return for such year. The Administrative Member shall furnish each Member,
at the expense of the LLC, with a final statement of the Member's
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distributive share of income, gains, losses, deductions and credits for such
Fiscal Year on a Form K-1 and such other information (including copies of any
tax returns that have been filed by the LLC) as is reasonably necessary for
the Member to complete such Member's applicable U.S. federal, state, local and
foreign income tax returns. The LLC shall also provide information to Investor
on a quarterly basis within twenty (20) days after the end of each Fiscal
Quarter, or at such other times as Investor may reasonably request, regarding
the nature and amount of the LLC's assets and gross income that is sufficient
to permit the members of Investor to ascertain its compliance with applicable
REIT income and asset requirements and to comply with record keeping
requirements under the Code and the applicable Treasury Regulations relating
to REIT's; provided, however, in no event shall a breach of this provision
give rise to (i) any cause of action by Investor or any of its members against
the LLC, Reckson, any of the direct or indirect members of Reckson or any
principal, partner, shareholder, member, controlling person, officer,
director, agent or employee of any of the aforesaid Persons, (ii) any basis
for the removal of Reckson as Administrative Member, if Reckson shall be the
Administrative Member, or (iii) any liability, loss or damage on the part of
the LLC, Reckson, any of the direct or indirect members of Reckson or any
principal, partner, shareholder, member, controlling person, officer,
director, agent or employee of any of the aforesaid Persons.
(b) The Administrative Member shall cause all LLC tax returns to
be timely prepared, at the expense of the LLC, so that they may be filed with
the applicable government authorities within allowable time periods, including
extensions, and so that the LLC can provide the Members with the tax returns
and information. Subject to the terms and provisions of this Agreement, the
Administrative Member shall make all decisions with respect to the treatment
of LLC transactions in the LLC's federal, state, local and foreign tax
returns.
(c) Reckson shall be the tax matters partner (as described in
Section 6231(a)(7) of the Code) of the LLC. Upon consultation with the
Management Committee, the tax matters partner may extend the statute of
limitations on behalf of the LLC, select the LLC's choice of litigation forum
in any tax action, or take any other action in its capacity as the tax matters
partner. The tax matters partner shall keep the Management Committee fully
advised of the progress of any audit or other tax proceeding and shall,
promptly upon receipt, supply the Members and the Management Committee with
copies of any written communications received from the Internal Revenue
Service, or other taxing authority, and shall, to the extent practicable, at
least five business days prior to submitting any materials to the Internal
Revenue Service, or other taxing authority, provide such materials to the
Members Management Committee. Any direct or indirect costs and expenses
incurred by the tax matters partner, acting in its capacity as such, shall be
deemed to be LLC Charges and the LLC shall reimburse the tax matters partner
for such amounts. The tax matters partner shall not enter into any settlement
with any taxing authority (federal, state or local) without the approval of
the Management Committee.
(d) Reckson may be removed as the tax matters partner by written
notice from the Investor Members upon ten (10) Business Days written notice,
should any of the events described in Section 7.03(b)(i), (ii) or (iii) occur
or the Percentage Interest of Reckson and any of its Affiliated Members, if
any, shall collectively be less than ten percent (10%); provided, however, if
the event giving rise to any such notice is an event described in Section
7.03(b)(iii),
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Reckson shall have the notice and cure rights that are described in the final
paragraph of Section 7.03(b), prior to its removal as the tax matters partner.
The Administrative Member shall not cause the LLC to make or knowingly cause
the LLC to refrain from making any material federal income tax elections
unless approved by Investor (which approval shall not be unreasonably withheld
or conditioned), it being understood that for purposes hereof, such tax
elections as may be made by the Administrative Member on behalf of the LLC in
the ordinary course of managing and/or operating the LLC (including, without
limitation, any election relating to depreciation, amortization,
capitalization of expense and accounting methods) shall not constitute
material tax elections. For purposes of this Section 8.05(d), Investor shall
be deemed to have consented to any election (or any election not made by the
LLC) shown on any U.S. federal income tax return of the LLC, in respect of
which election (or any election not made by the LLC), Investor did not provide
any comments on after receipt of the LLC's federal income tax return in
accordance with the ten (10) day time period provided in Section 8.05(a).
Notwithstanding anything herein to the contrary, if either Member requests
that the Administrative Member make an election under Section 754 of the Code,
the Administrative Member shall make this election (which election shall not
be subject to the consent of Investor) promptly after receiving notice of the
request from the Member.
8.06 Communications. Administrative Member shall keep the Members
informed as to all matters of material concern to the LLC and shall deliver to
the Members promptly upon the receipt or sending thereof copies of all
notices, reports and communications (A) between an Applicable Entity and any
holder of a Mortgage Loan which relate to any existing or pending default
thereunder or to any material financial or operational information required by
such holder and (B) regarding material violations or lawsuits affecting the
Property.
8.07 Partnership. The LLC shall be treated as a partnership for
federal income tax purposes and no Member shall make any election (for tax
purposes or otherwise) inconsistent with such treatment. Unless consented to
by all of the Members, the Property Owner shall be and remain treated as a
disregarded entity (within the meaning of Treasury Regulations 301.7701-2(c))
for U.S. federal income tax purposes.
ARTICLE IX
TRANSFERS OF INTERESTS; RIGHT OF FIRST REFUSAL; PLEDGES
9.01 Restrictions on Transfers of LLC Interests.
(a) Except as specifically permitted under this Article IX, no
Member shall, directly or indirectly, sell, assign, transfer or otherwise
dispose of (such transactions being herein collectively called "Transfers")
all or any part of such Member's Interest without the prior written consent of
all Unaffiliated Members, and any such Transfer made in violation of the
foregoing shall be void ab initio. An Upper Tier Transfer shall be deemed a
Transfer for the purposes hereof. Notwithstanding the foregoing, subject to
Sections 9.03 and 9.04 in each case:
(i) Reckson OP, One Court Square Member LLC, Reckson Member,
at any time without the requirement of any consent or compliance with any
other procedures or
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conditions precedent in this Agreement, may Transfer its respective direct or
indirect ownership interests in the LLC, or any portion thereof, to an
Affiliate so long as such Affiliate is one hundred percent (100%) owned,
directly or indirectly, by Reckson OP.
(ii) Each Investor Entity, at any time without the
requirement of any consent or compliance with any other procedures or
conditions precedent in this Agreement, may Transfer its respective direct or
indirect ownership interests in the LLC, or any portion thereof, to another
Investor Entity (or to a wholly owned Affiliate).
(iii) SSPF, at any time without the requirement of any
consent or compliance with any other procedures or conditions precedent in
this Agreement, may Transfer its respective direct or indirect ownership
interests in the LLC, or any portion thereof, to any trust (or wholly owned
Affiliate thereof) formed after the date hereof, which trust shall acquire a
portfolio of assets from SSPF and be advised by the advisor to SSPF or another
Acceptable Advisor ("SSPF Replacement Trust").
(iv) Reckson, at any time without the requirement of any
consent or compliance with any other procedures or conditions precedent in
this Agreement, may Transfer up to and including twenty percent (20%) of all
of the Interests in the LLC (i.e., not merely twenty percent (20%) of
Reckson's Interest) held by Reckson Members to an Australian Limited Property
Trust to be formed by Reckson, provided such trust shall either be (A) a
passive limited liability interest in the LLC or (B) controlled by Reckson OP.
(v) At any time without the requirement of any consent or
compliance with any other procedures or conditions precedent in this
Agreement, transfers of units or interests or changes of beneficiaries of
Reckson OP, any entity owning a direct or indirect interest in Reckson OP,
Successor Principal or any entity owning a direct or indirect interest in
Successor Principal shall not be deemed to be "Transfers" and shall not be
subject to any restrictions provided in this Agreement.
(vi) At any time without the requirement of any consent or
compliance with any other procedures or conditions precedent in this
Agreement, transfers of units or interests or changes of beneficiaries or
participants of (i) the I&G Fund, any entity owning a direct or indirect
interest in the I&G Fund, Successor Principal or any entity owning a direct or
indirect interest in Successor Principal, (ii) SSPF, any entity owning a
direct or indirect interest in SSPF, Successor Principal or any entity owning
a direct or indirect interest in Successor Principal, and (iii) NAPI, any
entity owning a direct or indirect interest in NAPI, Successor Principal or
any entity owning a direct or indirect interest in Successor Principal, shall
not be deemed to be "Transfers" and shall not be subject to any restrictions
provided in this Agreement.
9.02 Right of First Offer. (a) At any time following the second
anniversary of the date hereof (the "2"d Anniversary Date") (i) if (x) the
Reckson Members or their direct or indirect owners or (y) the Investor Members
or their direct or indirect owners (as applicable, the "Transferring Member")
desire to Transfer all or a portion of their respective interests in the LLC
other than in accordance with Section 9.01, then the following provisions
shall apply:
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(A) the Group Agent of the Transferring Member shall
give to the Group Agent of the Unaffiliated Members (such Unaffiliated Members
are for purposes of this Section 9.02, collectively the "Non-Transferring
Member") a written notice (the "First Offer Notice") setting forth (x) the
material business terms of the proposed Transfer including the price (the
"Offering Price") at which the Transferring Member proposes to Transfer all or
a portion of its Interest or indirect interest, as the case may be, provided
that if the Transferring Member proposes to Transfer an indirect interest in
the LLC, the Affiliate of such Transferring Member that owns a direct interest
in the LLC shall offer, and the Non-Transferring Member shall purchase, an
equivalent direct Interest in the LLC and the Members hereto shall cooperate
to effectuate a Transfer of a direct interest in the LLC (the Interest being
transferred is the "Applicable Interest"); and (y) the name and address of the
Escrow Agent (as defined below), which notice need not identify or specify a
proposed transferee. By way of example only, if the Transferring Member owns a
60% interest in a Member that owns a 30% interest in the LLC and such
Transferring Member proposes to Transfer its 60% interest, such Member shall
offer, and the non-Transferring Member shall purchase, an 18% direct interest
in the LLC from such Member. The material business terms shall in all events
provide that the Offering Price will be payable entirely in cash, in
immediately available funds;
(B) within 30 days following the delivery of the First
Offer Notice (the "Binding Commitment Period"), the Non-Transferring Member
may, by notice (the "Binding Commitment Notice") in writing to the
Transferring Member elect to make a binding commitment to purchase the
Applicable Interest at the Offering Price and upon other terms specified in
the First Offer Notice); and
(C) simultaneously with the delivery of the Binding
Commitment Notice on or before the end of the Binding Commitment Period, the
Non-Transferring Member shall deliver to the New York office of one of the
five largest national title insurance companies in the United States which
shall be designated by the Transferring Member in the First Offer Notice (the
"Escrow Agent") a deposit (the "Deposit") equal to 5% of the Offering Price
which shall be (x) non-refundable (except if the Transferring Member shall
wrongfully fail to close the sale of the Applicable Interest under paragraph
(e) below) and (y) held in escrow pursuant to an escrow agreement in a form
reasonably agreeable to the parties and the Non-Transferring Member shall be
obligated to purchase the Applicable Interest on a date not more than 120 days
following the end of the Binding Commitment Period (such date to be determined
by the Non-Transferring Member on not less than 15 days prior notice to the
Transferring Member, or if no such notice is sent, then on the 105th day
following the end of the Binding Commitment Period). The Binding Commitment
Notice shall be void ab initio if the Non-Transferring Member fails to deliver
the Deposit simultaneously with the delivery of the Binding Commitment Notice.
The date upon which the closing of the purchase of the Applicable Interest
shall occur shall be called the "ROFO Closing Date".
(b) On the ROFO Closing Date:
(i) the Transferring Member shall deliver to the
Non-Transferring Member or its designee a duly executed and acknowledged
instrument of assignment conveying the Applicable Interest to the
Non-Transferring Member or its designee(s) free and clear of all
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liens and encumbrances (other than any lien or encumbrance secured by the
Property (the "Secured Liabilities"));
(ii) the Transferring Member shall pay all transfer, stamp
or similar taxes, if any, due in connection with the conveyance of the
Applicable Interest;
(iii) the Escrow Agent shall pay the Deposit and the
Non-Transferring Member shall pay the balance of the Offering Price (as
adjusted by the credits and apportionments herein set forth) to Transferring
Member by wire transfer in immediately available funds;
(iv) the LLC shall close its books as of the ROFO Closing
Date;
(v) Net Ordinary Cash Flow and Net Extraordinary Cash Flow
hereunder to the ROFO Closing Date shall be distributed in accordance with the
provisions of Section 6.05;
(vi) the Offering Price shall (A) be increased by the
aggregate amount of all additional Capital Contributions made by the
Transferring Member on account of the Applicable Interest in the period
between the date of the First Offer Notice and the ROFO Closing Date and (B)
be decreased by any Net Extraordinary Cash Flow distributed to the
Transferring Member on account of the Applicable Interest during such period;
(vii) the Members shall execute all amendments to fictitious
name, membership or similar certificates necessary to reflect the withdrawal
of the Transferring Member from the LLC (if applicable), the admission of any
new Member to the LLC (if applicable), the termination of the LLC, or as may
otherwise be required by the LLC Act or as contemplated by Section 2.01;
(viii) the Non-Transferring Member shall provide the
Transferring Member's Recourse Parties with Releases or a Release Indemnity in
accordance with Section 12.03; and
(ix) each Member shall be reasonable and shall cooperate
with the other Members and the transferee in consummating the transaction
contemplated by this Section 9.02, including, without limitation, by executing
such documents as may reasonably be required in connection therewith.
(c) (i) If the Non-Transferring Member fails timely to deliver a
Binding Commitment Notice to the Transferring Member, the Transferring Member
shall have the right, subject to this Section 9.02(c), to sell the Applicable
Interest, provided that (1) the gross purchase price (without deduction for
any brokerage or similar fees payable in connection with such sale) is at a
price greater than 95% of the Offering Price, (2) the other terms and
conditions of the sale, when taken as a whole, are not (taken as a whole)
materially less favorable to the Transferring Member than the terms and
conditions set forth in the First Offer Notice, (3) the transferee shall
deliver to all Recourse Parties "Releases", or if not obtainable, "Release
Indemnities" (as such terms are defined in Section 10.01(a)), (4) the
Non-Transferring Member has been given an
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Identity Notice under clause (ii) below and has failed to give a proper and
timely Dispute Notice with respect to the proposed transferee identified
therein and (5) the closing of such sale shall occur not later than 12 months
following the expiration of the Binding Commitment Period, and upon such
closing the proposed transferee shall succeed to all the rights, obligations
and responsibilities of the Transferring Member.
(ii) If at any point prior to the close of the 12-month
period set forth above, the Transferring Member shall provide a written notice
(the "Identity Notice") to the Non-Transferring Member identifying the
proposed transferee and if, within 7 Business Days following delivery of the
Identity Notice, the Non-Transferring Member shall deliver a written notice
(the "Dispute Notice") to the Transferring Member stating that (x) the
Non-Transferring Member and the proposed transferee are currently engaged in a
material litigation (and the Dispute Notice shall provide written evidence of
such material litigation) or (y) if the Non-Transferring Member is the Reckson
Members, the proposed transferee or any of its Affiliates is a Competitor (as
defined below) of the Reckson Members or their Affiliates, then, in the case
of (x) or (y), the Transferring Member shall not be permitted to transfer its
Interest to such proposed transferee. "Competitor" shall mean any Person that
either on its own, or together with its Affiliate, (i) owns (other than
principally for its own use) either directly, or indirectly through Affiliates
of such Person, greater than a 7.5% interest in at least 2.5 million square
feet of office space in New York, New Jersey or Connecticut or (ii) is
currently developing, or has developed in the immediately preceding 3-year
period, at least two million square feet of office space in New York, New
Jersey or Connecticut, or any Person which is controlled by a Competitor;
provided, however, a Competitor shall not include insurance companies,
commercial banks or investment banks acting for their own account, religious,
educational or eleemosynary institutions, federal, state, municipal or other
governmental or secular employee's welfare, benefit, pension or retirement
funds, or other similar passive real estate investors. The Non-Transferring
Member's failure to furnish the Dispute Notice on or prior to the close of the
7 Business-Day period described above shall constitute a waiver of the right
to dispute such transferee. The Non-Transferring Member shall within 10
Business Days after request therefor from the Transferring Member, execute and
deliver such documentation as the Transferring Member shall reasonably request
evidencing the Non-Transferring Member's waiver of the right to purchase the
Applicable Interest, and confirming that there are no outstanding Dispute
Notices with respect to a proposed transferee but the failure to do so shall
in no way affect the Transferring Member's right to sell the Applicable
Interest as described herein.
(d) If the Transferring Member does not close a sale of the
Applicable Interest which satisfies the requirements of Section 9.02(c) above
within the 12-month period described in Section 9.02(c), then the Transferring
Member may not sell the Applicable Interest without once again giving notice
to the Non-Transferring Member pursuant to Section 9.02(a) above.
(e) If the Transferring Member or the Non-Transferring Member
shall fail to close the sale of an Applicable Interest contemplated by this
Section 9.02 after the Binding Commitment Notice has been given, then the
non-failing Member may, as its sole remedies (i) seek specific performance of
the failing Member's obligations, (ii) if the failing Member shall be (x) the
Non-Transferring Member, the Transferring Member may retain the Deposit as
liquidated damages or (y) the Transferring Member, the Escrow Agent shall
immediately return
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the Deposit to the Non-Transferring Member; (iii) sell its Interest during the
12 month period immediately succeeding the scheduled ROFO Closing Date without
complying with the right of first offer described in this Section 9.02 and
such buyer shall succeed to all of the rights, obligations and
responsibilities of the Transferring Member under this Agreement or (iv) have
the unilateral right (the "Unilateral Sale Right") to cause the LLC to cause
the Property Owner to sell the Property to an independent third party, without
complying with the procedures set forth in Section 10.01 but only if such sale
shall close not later than twelve (12) months following the ROFO Closing Date.
During such 12-month period following the scheduled ROFO Closing Date the
failing Member shall not be permitted to invoke any of the procedures set
forth in this Section 9.02 or in Sections 10.01 or 10.02. The non-failing
member may exercise any one or more of the foregoing remedies, but such
remedies shall collectively be the sole remedies of the non-failing Member.
9.03 Conditions Applicable to All Transfers. (a) Notwithstanding
anything to the contrary contained in this Agreement, any Transfer of any
Interest by a Member shall be made in full compliance with all Legal
Requirements. In the event that any filing, application, approval or consent
is required in connection with any such Transfer, the transferring Member
shall promptly make such filing or application or obtain such approval or
consent, at its sole expense, and shall reimburse the Unaffiliated Members for
any costs or expenses (including attorneys' fees) incurred by such Member in
connection with any filing, application, approval or consent. Any Member that
Transfers its Interest shall have implemented procedures to ensure that
neither the transferee nor any Person who owns any equity interest in such
transferee is a Prohibited Person or Controlled by a Prohibited Person
(provided that this requirement shall not apply to any Person to the extent
that such Person's interest in the LLC is through a U.S. Publicly-Traded
Entity).
(b) Notwithstanding anything to the contrary contained in this
Agreement, no Transfer of the Interest of a Member shall be binding upon the
Unaffiliated Members unless (i) such Transfer will not be subject to, or such
Transfer, when aggregated with prior Transfers in accordance with Legal
Requirements, will not result in the imposition of any state, city or local
transfer taxes to the LLC or the non-transferring Member (except to the extent
it is specifically provided herein that the non-transferring Member is
obligated to pay all or a portion of such taxes), unless the transferring
Member agrees to pay such transfer tax and to indemnify the non-transferring
Member therefrom, (ii) in the case of a Transfer of a direct Interest the
transferee shall have delivered to such Unaffiliated Member an executed and
acknowledged assumption agreement pursuant to which the transferee assumes all
the obligations of the transferor accruing from and after the date of such
Transfer under, and agrees to be bound by all the provisions of, this
Agreement (or, in the case where the transferee is an Affiliate of the
transferor, from and after the date of this Agreement), subject to the
limitations of liabilities set forth herein, and (iii) in the case of the
Transfer of a direct Interest, the transferee shall have executed,
acknowledged and delivered any instruments required under the LLC Act to
effect such Transfer and its admission to the LLC. Notwithstanding anything in
this Agreement to the contrary, in no event shall an Interest be transferred
to a Person who is the subject of any pending bankruptcy proceedings, or to a
Person who is a minor or who otherwise lacks legal capacity, and any attempt
to effect a Transfer to such a Person shall be void and of no effect and shall
not bind the LLC.
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(c) Notwithstanding any Transfer made pursuant to this Article IX
but subject to the limitations expressly stated in this Agreement, including
Article XII, the Transferring Member shall remain liable for all of the
obligations and liabilities of the Transferring Member under this Agreement,
whether accruing prior to, on or from and after the date of such Transfer;
provided, that the Transferring Member shall be relieved of any such
obligations and liabilities accruing from and after the date of such Transfer
if the transferee shall have delivered to the Unaffiliated Member an executed
and acknowledged assumption agreement pursuant to which the transferee assumes
all the obligations of the Transferring Member accruing from and after the
date of such Transfer under, and agrees to be bound by all the provisions of,
this Agreement (or, in the case where the transferee is an Affiliate of the
Transferring Member, from and after the date of this Agreement). In connection
with any Transfer permitted under this Article IX, each Member hereby consents
to the withdrawal of the Transferring Member as a Member and the admission of
the transferee as a Member with the rights of the Transferring Member
hereunder.
(d) The LLC, each Member and any other Person or Persons having
business with the LLC, need deal only with Members who are admitted as Members
or as substituted Members of the LLC, and they shall not be required to deal
with any other Person by reason of Transfer by a Member or by reason of the
death of a Member, except as otherwise provided in this Agreement. In the
absence of the substitution (as provided herein) of a Member for a
transferring or a deceased Member, any payment to a Member or to a Member's
executors or administrators shall acquit the LLC and the other Members of all
liability to any other Persons who may be interested in such payment by reason
of an assignment by, or the death of, such Member.
(e) No Member shall transfer, or permit the transfer (including,
without limitation, by means of an Upper Tier Transfer) of, all or any portion
of the Interests held by such Member unless the same is done in accordance
with the requirements of Applicable Loan Documents or the Citibank Lease.
(f) No Member shall Transfer and the LLC shall not permit the
Transfer (including, without limitation, by means of an Upper Tier Transfer, a
Transfer to another Member or its affiliate or any other Transfer otherwise
permitted under this Article IX) of all or any portion of the Interests held
by such Member to a "benefit plan investor" or "controlling person" (within
the meaning of the Plan Asset Regulation) if, following such Transfer, equity
participation in the LLC by benefit plan investors would be "significant"
(within the meaning of the Plan Asset Regulation).
(g) No Member shall transfer, or permit the transfer (including,
without limitation, by means of an Upper Tier Transfer) of, all or any portion
of the Interests held by such Member, if such transfer would constitute a
nonexempt prohibited transaction under Section 406(a) or Section 407 of ERISA
or Section 4975 of the Code.
(h) Notwithstanding anything to the contrary contained in Sections
9.01 or 9.02 or Article X, Reckson and/or any direct or indirect owner of
Reckson shall not be permitted to effectuate any Transfer which would result
in Reckson Operating Partnership, L.P. owning less than ten percent (10%) of
the direct or indirect ownership interests in the LLC unless, after
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such Transfer, Reckson Operating Partnership, L.P. shall own zero percent (0%)
of the direct or indirect ownership interests in the LLC. The terms and
provisions of this Section 9.03(h) shall not apply to any adjustments to
direct or indirect ownership interests made pursuant to the terms and
provisions of Section 5.02 hereof.
9.04 Admission of Transferee. Any Person who becomes a Member,
accepts, ratifies and agrees to be bound by all actions duly taken pursuant to
the terms and provisions of this Agreement by the LLC prior to the date of its
membership in the LLC and, without limiting the generality of the foregoing,
specifically ratifies and approves all agreements and other instruments as may
have been properly executed and delivered on behalf of the LLC in accordance
with this Agreement prior to said date and which are in force and effect on
said date. Unless and until a transferee is admitted as a substituted Member,
the transferee shall be entitled only to allocations and distributions with
respect to such Interest in accordance with this Agreement, and shall have no
right to any information or accounting of the affairs of the LLC, shall not be
entitled to inspect the books or records of the LLC, and shall not have no
right to exercise any of the powers, rights, and privileges of a Member
hereunder.
9.05 Pledge of Interest.
(a) Provided such pledge is not intended to circumvent the
restrictions on Transfers contained in this Agreement, each Member and any
entity owning a direct or indirect interest in Member may pledge, collaterally
assign (including any assignment of income or profits) or otherwise
hypothecate or create or permit to exist a lien against (collectively
"Pledge") its Interest or any direct or indirect ownership interests in a
Member to any Person who is not an Affiliate of the applicable pledgor, in
each case without any consent rights or first offer rights (or any other
rights in this Agreement) on behalf of any other Member. A Pledged Interest
may subsequently be transferred by foreclosure, assignment in lieu thereof or
other enforcement of such Pledge; provided and upon the condition that (i) the
Person (the "Purchaser") who purchases or otherwise acquires the pledged
Interest does so subject to all of the terms and conditions of this Agreement
as it may have been modified or amended, and (ii) the Purchaser, for its
acquisition of a Pledged Interest to be effective, shall comply with the
provisions of Sections 9.03 and 9.04. The Members hereby consent to any
foreclosure or other transfer of a Pledge permitted under this Article IX, or
an assignment in lieu thereof, or other such enforcement of such Pledge, the
withdrawal of the applicable Member ("Member Debtor") if its entire Interest
was so transferred, and the admission of the Purchaser as a substitute Member,
as the case may be, with all of the rights of the Member Debtor hereunder
including, without limitation, its rights with respect to management and
distributions. No such Pledge, foreclosure or other enforcement shall require
the Pledgee or its Affiliate to assume the obligations of a Member Debtor
hereunder unless and until such Pledgee or its Affiliate acquires the pledged
Interest of such Member Debtor.
(b) If the pledgee (the "Pledgee") of a Pledge shall have given
the Unaffiliated Members a written notice specifying such Pledgee's name and
address, then, whenever the Unaffiliated Members shall thereafter give a
notice to such Member Debtor under this Agreement, the Unaffiliated Members
shall also give such Pledgee at such address a copy of each notice given by
the Unaffiliated Members to the Member Debtor in the same manner and at the
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same time as any such notice is given to the Member Debtor. No such notice by
an Unaffiliated Member shall be deemed to have been given to the Member Debtor
unless and until a copy thereof shall have been so given to the Pledgee. All
Unaffiliated Members will accept performance by any Pledgee of any covenant or
obligation on the Member Debtor's part to be performed hereunder, with the
same force and effect as though performed by the Member Debtor and the Pledgee
shall be entitled to an additional 30 days to cure the applicable default of
the Member Debtor hereunder. No Unaffiliated Member shall terminate, or modify
in any material respect, this Agreement without the prior written consent of
each Pledgee of which such Unaffiliated Member shall have been given notice,
except to the extent (if any) expressly required hereunder. All Unaffiliated
Members shall consent to the execution by the LLC of such instruments as are
reasonably required by a Pledgee in order to ensure the perfection of its
security interest in the Member Debtor's Interest. In no event shall any
Pledgee be entitled to foreclose a Pledge unless and until each Member shall
have been given notice of such foreclosure.
(c) A Pledge (and any transfer by foreclosure sale or otherwise in
enforcement or settlement of such a Pledge) effected under this Section 9.05
shall not be considered a "Transfer" under this Agreement and shall not be
subject to the restrictions regarding Transfers set forth herein (including
without limitation, the provisions of Section 9.02 and Article X).
ARTICLE X
SALE OF PROPERTY;
BUY/SELL ARRANGEMENTS
10.01 Sale of Property to Third Parties. (a) After the Lockout
Period, either the Reckson Group Agent or the Investor Group Agent may tender
(the party so tendering, the "Recommending Member") to the Group Agent of the
Unaffiliated Members (for purposes of this Section 10.01, such Unaffiliated
Members are collectively, the "Non-Approving Member") a written notice (an
"Offer Notice") in which the Recommending Member recommends either (x) that
the LLC cause the Property Owner to sell the Property or (y) the LLC to sell
the one hundred percent (100%) of the membership interests in the Property
Owner; provided, however, no Offer Notice may be given if the Applicable Loan
Documents prohibit transfers of the Property to any third party and prohibit
prepayment or defeasance of the Applicable Loan (provided however an Offer
Notice may be given if an Applicable Loan is prepayable with the payment of a
prepayment penalty, defeasance charges or similar fee) or the transfer of the
membership interests in the Property Owner, as the case may be. The Offer
Notice shall (i) contain a gross sale price at which the Recommending Member
would be willing to sell the Property or the membership interests in the
Property Owner, as the case may be (the "Sale Price"), (ii) states whether the
Recommending Member intends to offer the Property or the membership interests
in the Property Owner for sale only to buyers who would be permitted
transferees under the terms of the Applicable Loan Documents (whether as a
matter of right or by obtaining lender, rating agency or other approval) and
which is capable of satisfying the requirements of clause (II)(x) below (such
a buyer, herein, a "Qualifying Buyer") or to buyers who need not be Qualifying
Buyers, and (iii) sets forth a calculation of the estimated amount that would
be distributed to the Investor Members in respect of their Interests in the
LLC and to the
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Reckson Members in respect of their Interests in the LLC if the Property or
the membership interests in the Property Owner, as the case may be, were sold,
and all the liabilities of the Applicable Entities were discharged; provided,
however that if the Recommending Member states that it intends to offer the
Property or the membership interests in the Property Owner for sale only to
Qualifying Buyers, the calculation shall assume that any Applicable Loans will
be assumed by the Qualifying Buyer and (iii) indicate the name and address of
the Property Escrow Agent (as defined below). The Non-Approving Member shall
have a period (the "Response Period") of 30 days from receipt of the Offer
Notice to deliver to the Recommending Member a notice (the "Binding Property
Notice") stating its binding commitment to either (A) approve the proposed
sale of the Property or the membership interests in the Property Owner, as the
case may be, subject to the further provisions of this Section 10.01 and
direct the Administrative Member to market the Property or the membership
interests in the Property Owner, as the case may be, in which event the
Administrative Member shall market the Property or the membership interests in
the Property Owner, as applicable, on behalf of the LLC and/or the Property
Owner for a period of up to 180 days (the "Marketing Period") (if no notice is
sent within the Response Period, the Non-Approving Member shall be deemed to
have elected to approve the marketing and sale of the Property or the
membership interests in the Property Owner, as applicable), or (B) purchase
the Property or the membership interests in the Property Owner or the
Recommending Member's interest in the LLC for an amount (the "Adjusted Sales
Price") sufficient to provide the Recommending Member the same amount it would
receive if the Property or the membership interests in the Property Owner, as
the case may be, were sold for the Sale Price to the type of buyer specified
in the Offer Notice (i.e. assuming the Applicable Loan is assumed if a
Qualifying Buyer was so specified); otherwise assuming the Applicable Loan is
prepaid or defeased in accordance with the applicable provisions of the
Mortgage Loans as of the date of the closing of the sale of the Property or
the membership interests in the Property Owner, as the case may be. If the
Non-Approving Member exercises its right under clause (B) in the immediately
preceding sentence, the Non-Approving Member may elect to purchase the
Property, the membership interests in the Property Owner or the Recommending
Member's interest in the LLC in its sole discretion. An election by the
Non-Approving Member to purchase the Property, the membership interests in the
Property Owner or the Recommending Member's interest in the LLC shall only be
effective if accompanied by delivering to the New York office of one of the
five largest national title insurance companies in the United States which
shall be designated by the Recommending Member in the Offer Notice (the
"Property Escrow Agent") a deposit in an amount equal to 5% of the Adjusted
Sale Price, which amount shall be non-refundable (except in the event that the
Property Owner or the LLC, as applicable, fails to deliver title to the
Property or the membership interests in the Property Owner or the Recommending
Member fails to deliver title to its interest in the LLC, as the case may be,
in which case such deposit shall be returned to the Non-Approving Member) and
shall be held in escrow pursuant to an escrow agreement reasonably
satisfactory to each of the Members, and the Non-Approving Member and the
Property Owner, the LLC or the Recommending Member, as applicable, shall be
obligated to close on the purchase and sale of the Property or the transfer of
membership interests in the Property Owner or the LLC, as applicable, on a
date (the "Sale Closing Date") selected by the Non-Approving Member that is no
more than 120 days following the delivery of the Binding Property Notice and
otherwise in accordance with Section 10.01(b).
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If the Non-Approving Member delivers a notice described in clause
(A) of the preceding paragraph (or fails to deliver a notice within the
Response Period) and, during the Marketing Period, a third party bona fide
purchaser (who shall be a Qualifying Buyer if such Qualifying Buyer was
specified in the Offer Notice (it being understood that a purchaser may be a
non-Qualifying Buyer so long as any financing secured directly or indirectly
by the Property is paid off at the time of the purchase)) in which
Recommending Member or its Affiliates have no more than a 5% direct or
indirect ownership interest offers to enter into a binding purchase and sale
agreement for the purchase of the Property or the membership interests in the
Property Owner, as the case may be (a "Third Party Contract"), which Third
Party Contract (I) contains a due diligence period of no more than 60 days for
all matters (including, without limitation, obtaining financing and receiving
any approvals required under any Applicable Loan), and (II) provides for the
purchase and sale of the Property or the membership interests in the Property
Owner, as the case may be, on the express condition that (x) such party shall
be required to assume in writing all Secured Liabilities (subject to any
limitations on recourse set forth therein) and shall be required to deliver to
the Recourse Parties written instruments (each, a "Release") releasing all
Recourse Parties from the Existing Recourse Obligations, or, if a Release
shall not be obtained, an indemnity (a "Release Indemnity") in form and
substance reasonably satisfactory to the Recourse Parties from a party whose
credit worthiness is reasonably satisfactory to the applicable Recourse Party
in light of the liabilities involved, indemnifying such Recourse Parties for
any loss, cost, or damage suffered or incurred by such parties in connection
with any liabilities or claims with respect to the Existing Recourse
Obligations arising from events first accruing on or after the Sale Closing
Date and (y) such purchasing party is required to pay all costs and expenses
that may be incurred by the Applicable Entities in connection with the
foregoing and (III) is on otherwise commercially reasonable terms at a gross
purchase price (without any deduction for any brokerage commissions or similar
fees payable in connection with such sale and without adjustment for
apportionments) of greater than 95% of the Sale Price, then the Non-Approving
Member shall be deemed to have approved the Third Party Contract and the
Property Owner shall proceed to close on the sale of the Property or the
membership interests in the Property Owner, as the case may be, to such third
party. If (xx) a fully-executed letter of intent (an "LOP") setting forth the
material terms of the Third Party Contract shall not be delivered to the
Property Owner or the LLC, as applicable, on or prior to the close of the
Marketing Period, (yy) a fully-executed copy of the Third Party Contract shall
not be delivered to the Property Owner or the LLC, as applicable, on a date
(the "Contract Date") that is within 60 days following the execution of the
LOI or (zz) the sale of the Property or the membership interests in the
Property Owner, as the case may be, substantially in accordance with the terms
of the Third Party Contract shall not have closed on or prior to the date that
is 90 days following the Contract Date (such 90-day closing period shall be
subject to any standard extensions (e.g., to cure title violations) granted
pursuant to the Third Party Contract, such extensions not to exceed 60 days in
the aggregate) the Administrative Member shall not be directed to market the
Property or the memberships interests in the Property Owner, as the case may
be, without once again complying with the provisions of this Section 10.01(a)
and the Recommending Member may not invoke the provisions of this Section
10.01 for a period of 12 months following the date of the earliest failure to
occur of the events described in (xx), (yy) or (zz) of this sentence.
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(b) If the Non-Approving Member has elected to purchase the
Property, the memberships interests in the Property Owner or the Recommending
Member's interest in the LLC, as the case may be, in accordance with clause
(a) above the purchase and sale shall be effectuated as follows:
(A) the Non-Approving Member or its designee (herein, the
"Purchasing Party") shall take title to the Property in its "as is" physical
condition or the memberships interests in the Property Owner or the
Recommending Member's interest in the LLC, as the case may be;
(B) the Purchasing Party shall deliver to the Property Owner
the Adjusted Sale Price (less the deposit) by wire transfer in immediately
available funds and the deposit, together with all interest accrued thereon,
shall be transferred from the Escrow Agent to the Property Owner or the LLC,
as applicable;
(C) the Property Owner shall pay the transfer, stamp or
similar taxes due in connection with the conveyance of the Property or the
memberships interests in the Property Owner or the LLC, as the case may be;
(D) (I) the Property Owner shall deliver to the Purchasing
Party or its designee, a duly executed and acknowledged bargain and sale deed
without covenants conveying the Property or appropriate assignment documents
assigning the memberships interests, without covenants (other than that the
Recommending Member's interest in the LLC is owned free and clear of all liens
and encumbrances), in the Property Owner or the Recommending Member's interest
in the LLC, as the case may be, to the Purchasing Party or its designee(s),
subject only to the Secured Liabilities, which conveyance shall be without any
representation or warranty by, or recourse against, any Applicable Entity and
(II) the Purchasing Party shall have paid all costs and expenses incurred by
the Applicable Entities in connection with the assumption of the Secured
Liabilities and the Releases and/or Release Indemnities;
(E) the Purchasing Party shall provide Releases or a Release
Indemnity in accordance with Section 12.03;
(F) all items of revenue and expense of the Property or the
LLC, as applicable (including the apportionments which are customarily
apportioned in the sale of properties comparable to the Property shall be
apportioned between the Property Owner or the LLC, as applicable, and the
Purchasing Party for the current calendar period as of 11:59 p.m. on the day
preceding the Sale Closing Date in accordance with the customs and practices
usual in transactions involving properties comparable to the Property); and
(G) the Property Owner and the Purchasing Party shall
deliver such additional instruments (without representation or warranty by or
material liability to the Property Owner or the LLC) which are customarily
delivered by buyers or sellers of properties comparable to the Property or the
memberships interests in the Property Owner or the LLC, as the case may be.
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(c) (i) If (x) the Property Owner shall default in its obligation
to close the sale of the Property, (y) the LLC shall default in its obligation
to close the sale of the memberships interests in the Property Owner, or (z)
the Recommending Member shall default in its obligation to close the sale of
its memberships interests in the LLC, as the case may be, contemplated by this
Section 10.01, then the Recommending Member or Purchasing Party may, as the
case may be, seek specific performance to cause the Property Owner, the LLC or
the Recommending Member, as applicable, to sell the Property or the
memberships interests in the Property Owner or the LLC, as the case may be.
(ii) If the Purchasing Party shall default in its obligation
to purchase the Property, the memberships interests in the Property Owner or
the Recommending Member's interest in the LLC, as the case may be, as
contemplated by this Section 10.01, then the Recommending Member may either
(A) cause the Property Owner or the LLC, as applicable, or may itself, as the
case may be, seek specific performance against the Purchasing Party or (B)(I)
cause the Property Owner or the LLC, as applicable, to retain the deposit held
by the Property Escrow Agent as liquidated damages, and/or (II) for a period
of 12 months cause the Property Owner or the LLC, as applicable, to sell the
Property or the memberships interests in the Property Owner, as the case may
be, to any unrelated third party pursuant to a Third Party Contract without
the Purchasing Party having any rights to purchase such Property or the
memberships interests in the Property Owner, as the case may be, under this
Section 10.01 or otherwise consent thereto. During the 12-month period set
forth in the preceding sentence, the Purchasing Party shall not be permitted
to invoke the procedures set forth in this Section 10.01 or in Sections 9.02
or 10.02.
(iii) If the Recommending Member shall default in its
obligations under this Section 10.01, (A) the Purchasing Party may cause the
Property Owner or the LLC, as applicable, or may itself, as the case may be,
seek specific performance against the Recommending Member, or (B)(I) the
Property Escrow Agent shall immediately return the Deposit, if any, to the
Purchasing Party. For a period of 12 months after a default by the
Recommending Member under this Section 10.01, the Recommending Party shall not
be permitted to invoke the procedures set forth in this Section 10.01, or in
Sections 9.02 or 10.02.
(iv) A party may exercise any one or more of the foregoing
remedies, but such remedies shall collectively be the sole remedies for
default under this Section 10.01.
(d) Notwithstanding anything to the contrary contained in this
Agreement, once the procedures outlined in this Section 10.01 have been
initiated, the procedures under Section 9.02 or 10.02 shall not be initiated
until all of the rights under this Section 10.01 shall have been exercised,
exhausted or extinguished.
10.02 Buy-Sell Arrangements. (a) At any time following (i) the 2nd
Anniversary Date, if a dispute under Section 7.02 shall have occurred and the
dispute shall not have been resolved after 60 days of good faith negotiation
between the members of the Management Committee (it being agreed that neither
party shall attempt to raise the Major Decision set forth in Section 7.02(a)
until the Lockout Date) or (ii) the expiration of the Lockout Period, either
the Reckson Group Agent or the Investor Group Agent (as applicable, the
"Offeror
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Member") may tender to the Group Agent of the Unaffiliated Members (for
purposes of this Section 10.02 such Unaffiliated Members are collectively, the
"Offeree Member") a good faith, written offer (a "Buy/Sell Offer Notice") in
which it offers either to sell all of its Interest to the Offeree Member or to
purchase from the Offeree Member all of its Interest. The Buy/Sell Offer
Notice shall provide a price (the "Buy/Sell Price") that the Offeror Member
would be willing to sell the Property, and the LLC Accountants' calculation
(subject to the review of any Unaffiliated Member) of the amount that would be
distributed to (x) the Investor Members (the "Investor Interest Amount"), and
(y) the Reckson Members (the "Reckson Interest Amount"), if the Property were
sold for cash in an amount equal to the Buy-Sell Price and the purchaser
assumed all Secured Liabilities. The Offeree Member shall give written notice
(a "Buy/Sell Response Notice") within 60 days after the receipt of the
Buy/Sell Offer Notice that the Offeree Member will either (x) sell its entire
Interest to the Offeror Member for an amount equal to the Investor Interest
Amount or the Reckson Interest Amount, as applicable or (y) purchase the
entire Interest of the Offeror Member for an amount equal to the Investor
Interest Amount or the Reckson Interest Amount, as applicable (the
transactions contemplated by (x) and (y) is a "Buy/Sell Transaction"). If the
Offeree Member elects in the Buy-Sell Response Notice to purchase the entire
Interest of the Offeror Member, the Offeree Member shall, simultaneously with
the delivery of the Buy/Sell Response Notice, deliver to the New York office
of one of the five largest title insurance companies in the United States (the
"Buy/Sell Escrow Agent") (to be designated by the Offeror Member) a Deposit
(the "Buy/Sell Deposit") equal to five percent (5%) (as reasonably estimated
by the Offeree Member) of whichever of the Investor Interest Amount or the
Reckson Interest Amount is being purchased. If the Offeree Member shall elect
in the Buy/Sell Response Notice to sell its Interest to the Offeror Member,
within 10 days following the Offeror Member's receipt of the Buy/Sell Response
Notice, the Offeror Member shall deliver to the Buy/Sell Escrow Agent the
Buy/Sell Deposit. Failure to respond within the 60-day period set forth above
shall be conclusively deemed to be an election by the Offeree Member to sell
its entire Interest. Failure of a Member to timely deliver the Deposit shall
cause such Member to be treated as a Purchasing Buy/Sell Member which is a
defaulting Member under paragraph (c) below. The Buy/Sell Offer Notice and the
Buy/Sell Response Notice (or deemed response) shall constitute a binding
agreement of purchase and sale between the Offeree Member and the Offeror
Member in accordance with the terms hereof.
(b) The closing of the Buy/Sell Transaction shall be on a date
(the "Buy/Sell Closing Date") and at a place designated by the purchasing
Member (or its designee) (the "Purchasing Buy/Sell Member") which is not more
than 120 days after the expiration of the 60-day election period (such
Buy/Sell Closing Date to be determined by the Purchasing Buy/Sell Member on no
less than 15 days prior notice to the Selling Buy/Sell Member, or if no such
notice is sent, then on the 105th day following the end of the 60-day election
period set forth in paragraph (a) above) (subject to an adjournment of the
closing as provided in clause (vii) below). Prior to the Buy/Sell Closing
Date, the Members shall cooperate in the preparation and filing of any
regulatory filings which may be necessary. At the closing:
(i) the selling Member (the "Selling Buy/Sell Member") shall
deliver to the Purchasing Buy/Sell Member a duly executed and acknowledged
instrument of assignment
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transferring the Interest of the Selling Buy/Sell Member to the Purchasing
Buy/Sell Member free and clear of all liens and encumbrances (other than the
Secured Liabilities);
(ii) the Selling Buy/Sell Member and the Purchasing Buy/Sell
Member shall each pay their pro rata share, based upon their respective
Percentage Interests, of all transfer, gains, stamp or similar taxes, if any,
due in connection with the conveyance of the Selling Buy/Sell Member's
Interest;
(iii) the Purchasing Buy/Sell Member shall pay the balance
of the purchase price to the Selling Buy/Sell Member in immediately available
funds and shall deliver to the Selling Buy/Sell Member a duly executed
agreement (which shall survive the closing under this Section 10.02(b))
indemnifying the Selling Buy/Sell Member against (1) claims based upon events
arising from or in connection with the LLC, the Property Owner or the Property
from and after the Buy/Sell Closing Date, and (2) except as provided under
clause (viii) below, any personal recourse liabilities for which the Members
are jointly and severally liable which accrue from and after the Buy/Sell
Closing Date; provided that Purchasing Buy-Sell Member's indemnity obligation
under this paragraph (iii) shall be limited to its direct or indirect interest
in the Property (or any Applicable Entity) (and any proceeds resulting from
the sale of all or any portion of such interest);
(iv) Net Ordinary Cash Flow and Net Extraordinary Cash Flow
up to the Buy/Sell Closing Date shall be distributed in accordance with the
provisions of Section 6.05 which provisions shall survive the closing pursuant
hereto for purposes of making or correcting any customary closing adjustments;
(v) there shall be distributed to the Selling Buy/Sell
Member its Percentage Interest of Cash Reserves, if any;
(vi) the purchase price to be paid by the Purchasing
Buy/Sell Member shall be (x) increased by (A) the aggregate amount of all
additional Capital Contributions made or treated as made by the Selling
Buy/Sell Member in the period between the date of the Buy/Sell Offer Notice
and the Buy/Sell Closing Date and (B) the amount of any unpaid Default Loans
together with interest then accrued thereon, and any other amounts due from
the Purchasing Buy/Sell Member to the Selling Buy/Sell Member in accordance
with this Agreement, (y) decreased by (I) any amounts of Net Extraordinary
Cash Flow distributed to the Selling Buy/Sell Member during the period between
the date of the Buy/Sell Offer Notice and the Buy/Sell Closing Date pursuant
to Section 6.05 and (II) the amount of any unpaid Default Loans together with
interest then accrued thereon, and any other amounts due from the Selling
Buy/Sell Member to the Purchasing Buy/Sell Member in accordance with this
Agreement and (z) adjusted to reflect any apportionments set forth herein;
(vii) the Selling Buy/Sell Member shall discharge of record
all liens and encumbrances affecting its Interest (other than Secured
Liabilities), and if it fails to do so on or before the Buy/Sell Closing Date,
the Purchasing Buy/Sell Member may use any portion of the purchase price to
pay and discharge any such liens and/or encumbrances (other than Secured
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Liabilities) and any related expenses and adjourn the closing for such period
as may be necessary for such purpose;
(viii) the Purchasing Buy/Sell Member shall provide the
Selling Buy/Sell Member's Recourse Party with Releases or a Release Indemnity
in accordance with Section 12.03;
(ix) the Members shall execute all amendments to fictitious
name, limited liability company or similar certificates necessary to effect
the withdrawal of the Selling Buy/Sell Member from the LLC and, if applicable,
the termination of the LLC; and
(x) each Member shall be reasonable and shall cooperate with
the other Members and the transferee in consummating the transaction
contemplated by this Section 10.02, including, without limitation, by
executing such documents as may reasonably be required in connection
therewith.
(c) If a Member shall fail to consummate the purchase or sale
contemplated by this Section 10.02, then if the basis of the triggering of the
Buy/Sell Offer Notice was a dispute arising under Section 7.02(b), then, the
LLC shall act in accordance with the instructions of the non-defaulting Member
in connection with such matter. During the 12-month period following the
scheduled Buy/Sell Closing Date the defaulting Member shall not be permitted
to invoke any of the procedures set forth in this Section 10.02 or in Sections
10.01 or 9.02 and the non-defaulting Member shall have the right to (x) sell
its Interest without complying with the provisions of this Section 10.02 or
the right of First Offer set forth in Section 9.02 and (y) exercise the
Unilateral Sale Right (in accordance with the terms of Section 9.02(e)). If
the Purchasing Buy/Sell Member is the defaulting Member, the Selling Buy/Sell
Member shall have the right to retain the Buy/Sell Deposit as liquidated
damages, together with any and all interest earned thereon. If the Selling
Buy/Sell Member is the defaulting party then, at the option of the Purchasing
Buy/Sell Member, the Purchasing Buy/Sell Member may either (I) demand and
receive from the Buy/Sell Escrow Agent the Buy/Sell Deposit (together with all
interest thereon) to the Purchasing Buy/Sell Member or (II) seek specific
performance. The non-failing Member may exercise any one or more of the
foregoing remedies, but such remedies shall collectively be the sole remedies
of the non-failing Member.
(d) Each Member agrees that it shall be reasonable and cooperate
with all Unaffiliated Members, including, without limitation, executing any
documents which may be reasonably required, in order to consummate the
transactions contemplated by this Section 10.02.
(e) Notwithstanding anything to the contrary contained in this
Agreement, once the procedures outlined in this Section 10.02 are initiated,
the procedures under Section 9.02 and Section 10.01 shall not be initiated
until all of the rights under this Section 10.02 shall have been exercised,
exhausted or extinguished relating to such first initiation.
(f) Notwithstanding anything to the contrary contained in this
Section 10.02, once the procedures outlined in Section 10.01 have been
initiated, the procedures under Section
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10.02 shall not be initiated until all of the rights under this Section 10.01
shall have been exercised, exhausted or extinguished.
ARTICLE XI
DISSOLUTION AND LIQUIDATION
11.01 Events Causing Dissolution. The LLC shall be dissolved and
its affairs wound up upon the occurrence of any of the following:
(a) the Members consent in writing to such dissolution;
(b) the sale or other disposition (voluntarily or involuntarily)
by the LLC of all or substantially all of the LLC Assets and the collection of
all amounts derived from any such sale or other disposition, including all
amounts payable to the LLC under any promissory notes or other evidences of
indebtedness taken by the LLC (unless the Members shall elect to distribute
such indebtedness to the Members in liquidation), and the satisfaction of
contingent liabilities of the LLC in connection with such sale or other
disposition;
(c) the occurrence of any event that, under the LLC Act, would
cause the dissolution of the LLC or that would make it unlawful for the
business of the LLC to be continued;
(d) any Member becomes Bankrupt; or
(e) the liquidation of the Property Owner or the occurrence of any
event that would cause the dissolution of the Property Owner or otherwise make
it unlawful for the business of the Property Owner to be continued.
11.02 Right to Continue Business of the LLC. Upon an event
described in Section 11.01(c) or Section 11.01(d) (but not an event described
in Section 11.01(c) that makes it unlawful for the business of the LLC to be
continued), the LLC thereafter shall be dissolved and liquidated unless,
within 90 days after such event, an election to continue the business of the
LLC shall be made in writing by a remaining Member. If such an election to
continue the LLC is made, then the LLC shall continue until another event
causing dissolution in accordance with this Article XI shall occur.
11.03 Distributions Upon Dissolution.
(a) Upon the dissolution of the LLC, the Administrative Member (or
any other Person responsible for winding up the affairs of the LLC) shall
proceed without any unnecessary delay to sell or otherwise liquidate the LLC
Assets and pay or make due provision for the payment of all debts, liabilities
and obligations of the LLC.
(b) Subject to Section 6.05(a), the net liquidation proceeds and
any other liquid assets of the LLC after the payment of all debts, liabilities
and obligations of the LLC (including, without limitation, all amounts owing
to the Members under this Agreement), the
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payment of expenses of liquidation of the LLC, and the establishment of a
reasonable reserve in an amount estimated by the Administrative Member to be
sufficient to pay any amounts reasonably anticipated to be required to be paid
by the LLC, shall be distributed to the Members in accordance with and to the
extent of the Members' ending positive Capital Account balances. In paying the
debts, liabilities and obligations of the LLC, any available funds shall be
applied (to the extent practical and peimitted by law), first, as provided in
Section 6.05(a), second, to repay any indebtedness or liabilities of the LLC
for which the Members (or any guarantor of the obligations of the LLC) shall
have recourse liability, and third, to repay any other indebtedness or
liabilities of the LLC.
(c) Each of the Members shall be furnished with a statement
prepared by, or under the supervision of, the LLC Accountants, Administrative
Member and any other person or entity responsible for winding up the affairs
of the LLC which shall set forth the assets and liabilities of the LLC as of
the date of complete liquidation. Upon dissolution and liquidation of the LLC,
the Members shall execute, acknowledge and cause to be filed any notice or
certificate required by law to reflect the termination of the LLC.
11.04 Liquidation Fee. If the Property is sold or the LLC is
otherwise liquidated prior to December 31, 2009, Investor shall, if and to the
extent distributions to Investor shall be sufficient, pay to Reckson an amount
equal to twenty-eight and one-half (28.5) basis points multiplied by
Investor's Gross Investment (the "Liquidation Fee"). In furtherance of the
foregoing, Administrative Member shall deduct solely from any amounts
otherwise payable to Investor pursuant to Section 6.05(c) or Section 11.03 and
shall pay to Reckson an amount equal to any Liquidation Fee due and payable to
Reckson. For U.S. federal income tax purposes, the Liquidation Fee shall be
treated as an expense of Investor and not of the LLC.
ARTICLE XII
RECOURSE OBLIGATIONS
12.01 GACC Recourse Obligations. Property Owner has obtained a
Mortgage Loan (the "GACC Loan") from German American Capital Corporation
(together with its successors and assigns, "GACC") pursuant to that certain
Loan Agreement dated as of August 3, 2005 between GACC and Property Owner (the
"GACC Loan Agreement"). In connection with the consummation of the GACC Loan,
the Reckson Recourse Party has executed that certain Guaranty Of Recourse
Obligations dated as of August 3, 2005 (the "GACC Guaranty") in favor of GACC
for the purpose of, jointly with Property Owner, indemnifying GACC in respect
of certain matters (the "GACC Recourse Obligations"). If the Reckson Recourse
Party shall pay, or be required to pay (pursuant to any agreement, settlement,
arbitration or adjudication) any amount (collectively, "Damages") in
connection with the Existing Recourse Obligations, the Person who is the
Administrative Member shall be responsible for 100% of such Damages to the
extent arising or accruing from acts or omissions occurring while such Person
is the Administrative Member (and, in the case of the Administrative Member as
of the date hereof, also to the extent accruing from acts or omissions
occurring prior to the date hereof), provided this clause (ii) is subject to
the following:
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(I) Subject to the terms of subsection (II) below with
respect to the matters expressly covered thereby, if
the Existing Recourse Obligations result from a
transaction, act or event authorized by a Major
Decision or otherwise approved by the Unaffiliated
Members (for purposes of this Section 12.01, such
Unaffiliated Members are collectively, the
"Non-Administrative Member") the Recourse Party
affiliated with the Non-Administrative Member shall be
liable for the Non-Administrative Member's Percentage
Interest (as of the date such Major Decision was
approved) of any such Damages;
(II) If the GACC Recourse Obligation is a Notice Recourse
Obligation, the Non-Administrative Member shall not be
liable for any Damages unless authorized by a Major
Decision or otherwise approved by the
Non-Administrative Member (provided that in connection
with such Major Decision or other approval,
Non-Administrative Member had actual knowledge that
the action approved by such Major Decision and/or
approval might trigger a Notice Recourse Obligation).
If the conditions set forth in the previous sentence
are satisfied, the Recourse Party affiliated with the
Non-Administrative Member shall be liable for the
Non-Administrative Member's Percentage Interest (as of
the date such Major Decision was approved) of such
Damages;
(III) If the transfer of a Member's direct or indirect
interest in the LLC triggers recourse liability under
Section 18.1.2(h) of the GACC Loan Agreement as
referenced by Section 2 of the GACC Guaranty, any
Damages resulting therefrom shall be paid solely by
the Recourse Party affiliated with the Member (or such
Member's Affiliate) that committed such breach; and
(TV) If a Member (or its Affiliate) shall breach any of the
obligations under this Section 12.01, the Recourse
Party affiliated with the breaching party shall
indemnify and hold harmless the non-breaching party
(and its Affiliates) from and against all loss, cost,
expense (including reasonable counsel fees), damage
and liability to such non-breaching party solely
resulting from the breach of this Section 12.01.
If a Recourse Party shall fail to timely pay any amounts required
under this Section 12.01, such Recourse Party shall be obligated to pay
interest to the LLC on demand made at any time and from time to time on any
such unpaid amounts at the GACC Default Rate from the date due to the date
paid.
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Any amounts payable under this Section 12.01 or Section 12.02
shall, for U.S. federal income tax purposes, be treated as a payment made, and
where applicable, an expense incurred by, the Member making such payment.
12.02 Intentionally Omitted. Release and Substitution of Recourse
Obligations. In the event that (i) the Reckson Members' Interest, on the one
hand, or the Investor Members' Interest, on the other hand, is being
transferred to an Unaffiliated Member or its designee pursuant to Section 9.02
or Section 10.02) (or otherwise) or (ii) a Member (or its designee) shall
purchase the Property in accordance with the provisions of Section 10.01(b)
(the date that a transaction described in clauses (i) or (ii) shall be
consummated shall be called the "Transfer Date"), the Non-Transferring Member
(with respect to Section 9.02), the Purchasing Buy/Sell Member (with respect
to Section 10.02) and/or the Purchasing Party (with respect to Section
10.01(b) shall, as a condition to closing the applicable transaction, use all
commercially reasonable efforts to obtain Releases for all recourse
obligations of the Recourse Party affiliated with the Transferring Member,
Selling Buy/Sell Member or Selling Party (as applicable) (which reasonable
efforts shall include the offering to the applicable third party a substitute
guarantor (or obligor) reasonably acceptable to such third party in light of
the liabilities involved) and, in the event a Release shall not be obtained,
such Non-Transferring Member, Purchasing Buy/Sell Member or Purchasing Party
(as applicable) shall cause its affiliated Recourse Party to furnish to the
Recourse Party of such Transferring Member, Selling Buy/Sell Member or Selling
Party (as applicable) a reasonably acceptable Release Indemnity; provided that
any Release or Release Indemnity shall only cover liabilities arising from
events first occurring on or after the Transfer Date.
12.04 Substitution of Letters of Credit. Notwithstanding anything
to the contrary contained herein, at any time that a Member or such Member's
Recourse Party is entitled to a Release or a Release Indemnity in accordance
with the terms and provisions of this Agreement (such Member referred to as
the "Exiting Member"), if there is then one or more letters of credit
outstanding that have been provided by or on behalf of the Exiting Member
pursuant to the terms and provisions of Section 6.10 or as otherwise required
under this Agreement, then the other non-Exiting Members hereunder shall use
commercially reasonable efforts to cause such letters of credit to be returned
to the Exiting Member by providing substitute letters of credit to the Person
holding such letters of credit; provided, however, if such Person shall not
return the original letters of credit, the non-Existing Members shall cause
their respective Recourse Parties to agree to indemnify the Exiting Member for
any amounts that such letters of credit may be drawn down.
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ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
13.01 Representations and Warranties.
(a) Reckson hereby represents and warrants to Investor as of the
date hereof that:
(i) Except for the Citibank Lease there are no other Leases
currently in effect. A true and complete copy of the Citibank Lease has been
delivered to Investor and constitutes the entire agreement between the
landlord and Citibank with respect to the Property. The Citibank Lease is in
full force and effect and has not been amended or modified by Property Owner
or any other Affiliate of a Reckson Member. Base rent under the Citibank Lease
has been paid through December 31, 2005. In connection with the Citibank
Lease, there are no outstanding landlord work obligations, tenant improvement
work presently required to be performed by the landlord, tenant work
allowances required to be paid by the landlord or brokerage commissions
required to be paid by the landlord.
(ii) Property Owner has not given any written notice to
Citibank that Citibank has failed to perform any of its material obligations
under the Citibank Lease, which failure remains uncured, and, to the Reckson
Members' knowledge, no material default on the part of Citibank exists
thereunder.
(iii) No Applicable Entity has received written notice from
Citibank that the Property Owner has failed to perform any of its material
obligations under the Citibank Lease, which failure remains uncured, and, to
the Reckson Members' knowledge, no material default on the part of the
Property Owner exists thereunder.
(iv) No Applicable Entity has received written notice from
Citibank that Citibank has filed for bankruptcy and/or reorganization.
(v) No Applicable Entity has received written notice of and,
to the Reckson Members' knowledge, there are no pending condemnation
proceedings or similar proceedings affecting the Property.
(vi) Except as set forth in the Citibank Lease, no
Applicable Entity has granted to any Person any right or option to acquire the
Property.
(vii) Except for the GACC Loan, there are no other
Applicable Loans outstanding on the date hereof. The outstanding principal
amount of the GACC Loan is, as of the date hereof, $315,000,000.00. All
interest on the GACC Loan has been paid through October 31, 2005. Copies of
the GACC Loan documents delivered from the Reckson Members to Investor are
true and complete copies and constitute the entire agreement between GACC and
Property Owner with respect thereto. The GACC Loan documents have not been
amended or modified. The Applicable Entities have not received written notice
of a default under the GACC Loan documents and there is no (x) payment default
under the GACC Loan documents and (y) to the Reckson Members' knowledge, there
is no other material default.
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(viii) The sole business of (I) the LLC consists of owning
interests in the Property Owner and (II) the Property Owner consists of owning
and operating the Property and, in each of (I)-(II), activities incidental
thereto. No Applicable Entity has engaged in any other business since the time
of its formation. No Applicable Entity has any assets or liabilities other
than in connection with owning or operating the Property.
(ix) The LLC owns all of the interests in the Property
Owner. Reckson OP immediately prior to the entering into Assignment and
Assumption Agreements described in the Recitals of this Agreement owned all of
the interests in the LLC. The interests in Property Owner and the LLC are
owned free and clear of any liens, security interest, purchase rights or other
encumbrances. To the Reckson Members' knowledge, there are no defaults by any
member or former member under an operating agreement (or predecessor operating
agreement) of an Applicable Entity. A true, correct and complete copy of the
Property Owner LLC Agreement has been delivered to Investor.
(x) To the Reckson Members' knowledge, except as set forth
on Schedule III, there are no actions, suits or proceedings at law or in
equity now pending or threatened against or affecting an Applicable Entity or
the Property.
(xi) Each Applicable Entity is a limited liability company,
validly existing and in good standing under the laws of the State of Delaware.
(xii) No Applicable Entity or Reckson Member is Bankrupt.
(xiii) There are no collective bargaining agreements or
other labor union contract to which any Applicable Entity is a direct party.
(xiv) Any federal, state and local Taxes (excluding Property
Taxes) which are the obligation of the Property Owner and/or the LLC have been
timely paid in full when due and all tax returns ("Tax Returns") required to
be filed with respect thereto (if any) have been timely filed (taking into
account extensions). The Tax Returns of neither Property Owner nor the LLC
have been audited or contested (not to the knowledge of the Reckson Knowledge
Individuals has there been any threat of an audit or contest) by the Internal
Revenue Service or any other taxing authority, and no waivers or extensions
with respect to any applicable statute of limitations relating to such returns
have been granted. True and complete copies of all federal income Tax Returns
for the Property Owner and the LLC, if any, have been delivered to Investor
and they have not been amended in any material respect except as delivered to
Investor. Neither the LLC not the Property Owner is a party to, nor bound by,
any tax allocation or tax sharing agreement and has no contractual obligation
to indemnify any other Person with respect to such federal, state and local
Taxes (excluding Property Taxes).
(xv) Neither Reckson nor Reckson OP is, after taking into
account the constructive ownership rules of Section 4975(e)(4), (5) and (6) of
the Code, (a) an employer, (b) a person or entity owning, directly or
indirectly, 50% or more of the stock or interests of an employer (a "Parent of
an Employer") or (c) a person or entity of or in which 50% of the stock or
interests are owned, directly or indirectly, or held by an employer or a
Parent of an employer, any
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of whose employees are covered by a plan described in Section 401(a) of the
Code that owns a direct interest in SSPF.
(xvi) Neither Reckson nor any of its direct or indirect
members or owners is a qualified organization within the meaning of Section
514(c)(9)(C) of the Code, other than any qualified organization that holds an
indirect interest in Reckson through an entity treated as a corporation
(including an entity treated as a REIT) for U.S. federal income tax purposes.
(xvii) No Applicable Entity has received written notice from
any governmental agency of any investigation or proceeding by such agency
concerning (A) the presence or alleged presence of Hazardous Materials at the
Property or (B) an Applicable Entity's (or the Property's) violation of an
Environmental Law.
(xviii) There are no Material Agreements other than the GACC
Loan Documents.
(xix) Reckson has delivered to Investor true and complete
copies of the engineering and environmental reports with respect to the
Property set forth on Schedule IV, which are the only engineering and
environmental reports with respect to the Property in the possession of
Reckson or its Affiliates.
(xx) Reckson has delivered to Investor a true and complete
copy of the that certain ALTA Owner's Policy of Title Insurance (the "Title
Insurance Policy") dated May 12, 2005 issued by First American Title Insurance
Company of New York insuring the Property Owner in the aggregate amount of
$469,180,103.44. No Applicable Entity has received any notice indicating that
the Title Insurance Policy is not in full force and effect. To Reckson
Members' knowledge, the Title Insurance Policy is in full force and effect.
Since the date of the Title Insurance Policy, no Applicable Entity has created
any lien or encumbrance against the Property and, to Reckson Members'
knowledge, no Applicable Entity has received notice of any lien or encumbrance
being filed against the Property other than matters that are the
responsibility of Citibank to discharge.
Any and all uses of the phrase, "to the Reckson Members'
knowledge" or other references to the Reckson Members' knowledge in this
Agreement shall mean the actual, present knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Reckson Knowledge
Individuals"). Investor acknowledges that the Reckson Knowledge Individuals
have not performed and are not obligated to perfotiii any investigation or
review of any files or other information in the possession of the Reckson
Members, or to make any inquiry of any persons, or to take any other actions
in connection with the representations and warranties of the Reckson Members
set forth in this Agreement. Neither the actual, present knowledge of any
other individual or entity, nor the constructive knowledge of the Reckson
Knowledge Individuals or of any other individual or entity, shall be imputed
to the Reckson Knowledge Individuals.
The representations and warranties contained in Section 13.01(a)
shall survive for 12 months following the date hereof (the "Rep. Closing
Date"), except that the representations
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set forth in clauses (a)(viii), (ix), (xi), (xiv), (xv) and (xvi), above shall
survive for the applicable statute of limitations. Each such representation
and warranty (other than those set forth in clauses (a)(viii), (ix), (xi),
(xiv), (xv) and (xvi), shall automatically be null and void and of no further
force or effect on the Rep. Closing Date unless, prior to the Rep. Closing
Date, Investor shall have commenced a legal proceeding (a "Proceeding")
against the Reckson Members alleging that the Reckson Members shall be in
breach of such representation or warranty and that Investor shall have
suffered actual damages as a result thereof in the aggregate in excess of
$375,000 (the "Rep. Basket"). Notwithstanding anything to the contrary
contained herein Investor shall not have a claim for any breach of a
representation or warranty if Investor had actual knowledge of such breach on
or before the date hereof. If Investor shall have timely commenced a
Proceeding and a court of competent jurisdiction shall, pursuant to a final,
non-appealable order in connection with such Proceeding, determine that (i)
the Reckson Members were in breach of any applicable representation or
warranty as of the date of this Agreement, (ii) Investor suffered actual
damages (the "Damages"), direct or indirect (by virtue of its direct or
indirect interest in the Applicable Entities or otherwise), by reason of such
breach in an amount exceeding the Rep. Basket and (iii) Investor did not have
actual knowledge of such breach on or prior to the date hereof, then, subject
to the next sentence, Investor shall be entitled to receive an amount equal to
the Damages minus the Rep. Basket. Notwithstanding anything to the contrary
contained herein, in no event shall the Reckson Members' liability for all
breaches exceed $7,500,000.00 in the aggregate (other than for breaches of the
representations contained in clauses (a)(viii), (ix), (xi), (xiv), (xv) and
(xvi) above and paragraph (c) below for which there shall be no such
limitation). Any amounts payable to Investor under this Section 13.01(b) shall
be paid to Investor within 30 days following the entry of a final,
non-appealable order and delivery of a copy thereof to the Reckson Members.
Investor's sole remedy for breach of a representation or warranty contained
herein is to seek damages, subject to the limitations in this paragraph.
(b) Investor hereby represents and warrants to Investor as of the
date hereof that:
(i) The ownership interests of Investor are as set forth on
the organizational chart attached hereto as Schedule II.
(ii) True and complete copies of the organizational
documents of Investor have been delivered to Reckson.
(iii) (A) I&G Fund and/or its direct or indirect owners, (B)
SSPF and/or its direct or indirect owner and (C) NAPI and/or its direct or
indirect owner, satisfy the requirements of (x) a Permitted Owner, as such
term is defined in the GACC Loan Agreement and (y) an Institutional Investor,
as such term is defined in the Citibank Lease.
(iv) No Investor Entity or Investor is Bankrupt.
Any and all uses of the phrase, "to the Investor Members'
knowledge" or other references to the Investor Members' knowledge in this
Agreement shall mean the actual, present knowledge of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Investor Knowledge Individuals").
Neither the actual, present knowledge of any other individual or
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entity, nor the constructive knowledge of the Investor Knowledge Individuals
or of any other individual or entity, shall be imputed to the Investor
Knowledge Individuals.
(c) Each Member hereby represents and warrants (which
representations and warranties shall survive for the applicable statute of
limitations) and shall not be subject to any of the limitations set forth in
paragraph (b) above) to the Unaffiliated Member as of the date hereof that:
(i) Such Member is a limited liability company duly
organized, validly existing and in good standing under the laws of the State
of Delaware.
(ii) It has the requisite corporate or limited liability
company power and authority to enter into and perform the terms of this
Agreement; the execution and delivery of this Agreement, and the consummation
of the transactions contemplated hereby, have been duly authorized and no
other corporate, limited liability company or other action on the part of such
Member or any of its shareholders or members is necessary in order to permit
such Member to consummate the transactions contemplated hereby. This Agreement
constitutes the valid and binding obligation of such Member, enforceable in
accordance with its terms as the same may be limited, however, by applicable
insolvency, bankruptcy or other laws affecting creditors' rights generally or
by general principles of law.
(iii) Neither the execution, delivery or performance by such
Member of this Agreement or the transactions contemplated hereby will conflict
with, or will result in a breach of, or will constitute a default under, (A)
any agreement or instrument by which such Member may be bound or (B) any legal
requirement or any other judgment, statute, rule, law, order, decree, writ or
injunction of any court or governmental authority.
(iv) Other than as set forth herein, no approval, consent,
order or authorization of, or designation, registration or declaration with,
any governmental authority or other third party is required in connection with
the valid execution and delivery of, and compliance with, this Agreement by
the Member and the performance by the Member of the transactions contemplated
hereby which has not heretofore been obtained.
(v) The tax identification number of such Member is as set
forth by its signature block to this Agreement.
(iv) Neither such Member nor any direct owner of such Member
is Bankrupt.
(vii) No Interest issued to such Member has been registered
under the Securities Act of 1933, as amended, or state securities laws, (ii)
such Interest, therefore, cannot be resold unless registered under the
Securities Act of 1933, as amended, and applicable state securities laws, or
unless an exemption from registration is available, (iii) there is no public
market for such Interest, and (iv) neither the LLC nor any other Member has
any obligation or intention to register such Interest for resale under the
Securities Act of 1933, as amended, or any
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state securities laws or to take any action that would make available any
exemption from the registration requirements of such laws.
(viii) On behalf of itself and each assignee or transferee
of it, such Member is acquiring its Interest for its own account for
investment and not with a view to the distribution or resale thereof, or with
the present intention of distributing or reselling such interest, and that it
will not transfer or attempt to transfer its Interest in violation of the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, or any other applicable federal, state or local securities law.
Nothing herein shall be construed to create or impose on the LLC or any Member
an obligation to engage in public reporting or register any transfer of any
Interest or any portion thereof with the Securities Exchange Commission.
(ix) Such Member is not a "benefit plan investor" (within
the meaning of the Plan Assets Regulation).
(d) Investor acknowledges that, except as expressly set forth in
this Agreement, neither Reckson Member nor any of its Affiliates has made, and
no such party is liable for or bound in any manner by, any express or implied
warranties, guaranties, promises, statements, inducements, representations or
information pertaining to the Property, the Property Owner, the income,
expenses, operation or tax benefits of any Applicable Entity, the Property,
the status of the Interests or any other matter or thing with respect thereto.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.01 Compliance with LLC Act. Each Member agrees not to take any
action or fail to take any action which, considered alone or in the aggregate
with other actions or events, would result in the termination of the LLC under
the LLC Act (it being understood that there shall be no breach under this
Section 14.01 if a sale of all or substantially all of the LLC Assets under
Section 10.01 causes a dissolution of the LLC under Section 11.01). No Member
shall file for, pursue or seek any partition of any LLC Assets.
14.02 Additional Actions and Documents. Each of the Members hereby
agrees to take or cause to be taken such further actions, to execute,
acknowledge, deliver and file or cause to be executed, acknowledged, delivered
and filed such further documents and instruments, and to use commercially
reasonable efforts to obtain such consents, as may be necessary or as may be
reasonably requested in order to fully effectuate the purposes, terms and
conditions of this Agreement.
14.03 Notices. All notices, demands, requests, approvals or other
communications which may be or are required to be given, served, delivered, or
sent by any party to any other party pursuant to this Agreement shall be in
writing and shall be (a) mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, (b) sent by nationally recognized
overnight courier, (c) delivered by hand delivery (including delivery by
nationally
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recognized courier), or (d) transmitted by facsimile transmission (with a copy
contemporaneously delivered by one of the other permitted methods of
delivery), addressed as follows:
(a) To Reckson:
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
c/o Reckson Associates
1350 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
Fried, Frank, Harris, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) To Investor:
▇▇ ▇▇▇▇▇▇ Investment Management Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Stroock & Stroock & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
NAPI REIT, Inc.
c/o PPM Finance, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
Prudential Property Investment Managers Limited
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇/▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: 011-44-207-548-6662
and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served,
delivered or sent. Each notice, demand, request, or communication which shall
be mailed, sent, delivered or transmitted in the manner described above shall
be deemed, given, served or delivered at such time as it is received by the
addressee upon presentation or at such times as delivery is attempted in the
case of any change in address as to which notice was not given to the other
party as required hereunder or in the case of a refusal to accept delivery.
Attorneys may deliver notices on behalf of their clients.
14.04 Expenses. (a) Investor shall pay all costs of its due
diligence in connection with this transaction. Reckson and Investor shall each
pay its own legal fees and expenses in connection with the preparation,
negotiation and execution of this Agreement. Investor shall be
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responsible for paying all costs of title insurance to insure its Interest.
Investor shall pay its pro rata share of the GACC Loan Costs.
(b) In the event of any dispute which results in legal proceedings
between the Members, all reasonable legal fees, court costs and disbursements
incurred in connection with such action by the party prevailing in such legal
proceedings after a final nonappealable judgment of a court of competent
jurisdiction has been entered shall be paid by the party not prevailing in
such action within 10 days after demand therefor.
14.05 Obligations Are Without Recourse. Notwithstanding anything
to the contrary contained in this Agreement, no recourse shall be had against
any Member, whether by levy or execution or otherwise, for the payment of any
loans or other payments due or for any other claim under this Agreement or
based on the failure of performance or observance of any of the terms and
conditions of this Agreement against such Member, the partners, members or
shareholders of such Member or any predecessor, successor or Affiliate of such
Member or any of their respective assets other than such Member's Interest or
any undistributed Net Ordinary Cash Flow or Net Extraordinary Cash Flow due or
to become due to such Member (collectively, "Undistributed Income") or against
any principal, partner, shareholder, member, controlling person, officer,
director, agent or employee of any of the aforesaid Persons, or board members,
trustees or beneficiaries of a pension plan, under any rule of law, statute or
constitution, or by the enforcement of any assessment or penalty, or
otherwise, nor shall any of such Persons be personally liable for any
contributions, loans, payments or claims, or liable for any deficiency
judgment based thereon or with respect thereto, it being expressly understood
that the sole remedies of the LLC or any Member with respect to such amounts
and claims shall be against such Interest and such Member's Undistributed
Income, and that all such liability of the aforesaid Persons, except as
expressly provided in this Section 14.05, is expressly waived and released as
a condition of, and as consideration for, the execution of this Agreement;
provided, that nothing contained in this Agreement (including, without
limitation, the provisions of this Section 14.05), (a) shall constitute a
waiver of any obligation of a Member under this Agreement, (b) shall be taken
to prevent recourse to and the enforcement against such Interest and
Undistributed Income for all of the respective liabilities, obligations, and
undertakings of the aforesaid Persons contained in this Agreement, (c) shall
be taken to prevent recourse to and the enforcement against (i) a transferring
Member of its liabilities, obligations and undertakings contained in any
instrument of assignment or indemnity delivered in connection with such
transfer (but such recourse shall be limited to the proceeds received by such
transferring Member in connection with the assignment to the purchasing Member
(or its designee)), (ii) any security delivered by any of the aforesaid
Persons pursuant to this Agreement (iii) any Recourse Party, to the extent
expressly provided in Articles IX, X and XII, or (iv) Reckson OP under Section
4.01 (c) hereof, (d) shall be taken to limit or restrict any action or
proceeding against any of the aforesaid Persons which does not seek damages or
a money judgment or does not seek to compel payment of money (or the
performance of obligations which would require the payment of money) by any of
the aforesaid Persons or (e) shall be deemed taken to limit the liability of
any Person for fraud, misappropriation of funds or property, or intentional
destruction of LLC Assets. For the purposes of this Section 14.05, the term
"shareholder" shall be deemed to include the shareholders of any corporation
which is a shareholder, principal, member, partner or agent and the term
"partner" shall be deemed to include the partners of any partnership which is
(w) a
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partner in a partnership, (x) a shareholder in a corporation, (y) a principal
or a member in a limited liability company or (z) an agent.
14.06 Time of the Essence. Except as otherwise expressly provided
in this Agreement, time shall be of the essence with respect to all time
periods set forth in this Agreement.
14.07 Ownership of LLC Assets. The Interest of each Member shall
be personal property for all purposes. All real and other property owned by
the LLC shall be deemed owned by the LLC as LLC property. No Member,
individually, shall have any direct ownership of such property and title to
such property shall be held in the name of the LLC.
14.08 Status Reports. Recognizing that each Member may find it
necessary from time to time to establish to third parties, such as
accountants, banks, mortgagees (including GACC), prospective transferees of
its Interest, or the like, the then current status of performance of the LLC
and the Interests, each Member shall, within 10 Business Days following the
written request for the same from an Unaffiliated Member (the "Requesting
Member") (provided that any such written request is not made more than twice
in any 12-month period), furnish a written statement (in recordable form, if
requested) on the status of the following:
(a) that this Agreement is unmodified and in full force and effect
(or if there have been modifications, that this Agreement is in full force and
effect as modified and stating the modifications);
(b) stating whether or not to the best knowledge of such
certifying Member (i) the Requesting Member in the LLC is in default in
keeping, observing or performing any of the terms contained in this Agreement
and, if in default, specifying each such default (limited to those defaults of
which the certifying Member has knowledge) and (ii) there has occurred an
event that with the passage of time or the giving of notice, or both, would
ripen into a default hereunder on the part of such Requesting Member (limited
to those events of which the certifying Member has knowledge);
(c) stating the amount of Default Loans made by or to such
certifying Member and the amount of accrued but unpaid interest thereon;
(d) stating the Capital Contributions and Percentage Interests of
the Members; and
(e) to the knowledge and belief of the party making such
statement, with respect to any other matters as may be reasonably requested by
the Requesting Member.
Such statement may be relied upon (and shall state that it may be relied upon)
by the Requesting Member and any other Person for whom such statement is
requested, but no such statement shall operate as a waiver as to any default
or other matter as to which the Member executing it did not have actual
knowledge.
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14.09 Survival. It is the express intention and agreement of the
Members that all covenants, agreements, statements, representations,
warranties and indemnities made in this Agreement shall survive the execution
and delivery of this Agreement.
14.10 Waivers. Neither the waiver by the LLC or a Member of a
breach of or a default under any of the provisions of this Agreement, nor the
failure of the LLC or a Member, on one or more occasions, to enforce any of
the provisions of this Agreement or to exercise any right, remedy or privilege
hereunder, shall thereafter be construed as a waiver of any subsequent breach
or default of a similar nature, or as a waiver of any such provisions, rights,
remedies or privileges hereunder. Each Member hereby waives the right to trial
by jury in connection with any legal proceeding between the Members with
respect to this Agreement or the LLC.
14.11 Exercise of Rights. No failure or delay on the part of a
Member or the LLC in exercising any right, power or privilege hereunder and no
course of dealing between the Members or between a Member and the LLC shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. Except as
otherwise provided in this Agreement, the rights and remedies herein expressly
provided are cumulative and not exclusive of any other rights or remedies
which a Member or the LLC would otherwise have at law or in equity or
otherwise.
14.12 Binding Effect. Subject to any provisions hereof restricting
assignment, this Agreement shall be binding upon and shall inure to the
benefit of each of the Members and their respective heirs, devises, executors,
administrators, legal representatives, successors and assigns.
14.13 Limitation on Benefits of this Agreement. It is the explicit
intention of the Members that no Person other than the Members and the LLC is
or shall be entitled to bring any action to enforce any provision of this
Agreement against the Members or the LLC, and that the covenants, undertakings
and agreements set forth in this Agreement shall be solely for the benefit of,
and shall be enforceable only by, the Members (or their respective successors
and assigns as permitted hereunder), and the LLC.
14.14 Severability. The invalidity of any one or more provisions
hereof or of any other agreement or instrument given pursuant to or in
connection with this Agreement shall not affect the remaining portions of this
Agreement or any such other agreement or instrument or any part thereof, all
of which are inserted conditionally on their being held valid in law; and in
the event that one or more of the provisions contained herein or therein
should be invalid, or should operate to render this Agreement or any such
other agreement or instrument invalid, this Agreement and such other
agreements and instruments shall be construed as if such invalid provisions
had not been inserted.
14.15 Amendment Procedure. This Agreement may only be modified or
amended by the unanimous written consent of the Members.
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14.16 Entire Agreement. This Agreement and any agreements executed
contemporaneously herewith contain the entire agreement between the Members
with respect to the matters contemplated herein, and supersede all prior oral
or written agreements, commitments or understandings with respect to the
matters provided for herein and therein.
14.17 Headings. Article, Section and subsection headings contained
in this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any
way define or affect the meaning, construction or scope of any of the
provisions hereof.
14.18 Governing Law. This Agreement, the rights and obligations of
the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of Delaware (but not
including the choice of law rules thereof).
14.19 Execution in Counterparts. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required; and it
shall not be necessary that the signatures of, or on behalf of, each party, or
that the signatures of all persons required to bind any party, appear on each
counterpart; but it shall be sufficient that the signature of, or on behalf
of, each party, or that the signatures of the persons required to bind any
party, appear on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in
making proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of, or on behalf of, all of
the parties hereto.
14.20 Consents and Approvals. No consent or approval requested of
a Member shall be effective unless such consent or approval shall be delivered
by such Member in a written instrument in advance of the action with respect
to which such consent or approval was requested.
14.21 Brokerage. Each party to this Agreement represents and
warrants to each other party to this Agreement that neither it nor its
Affiliates have employed the services of, or dealt with any Person acting as a
broker, investment bank, finder or like agent in connection with this
Agreement or the transactions contemplated hereby. The execution and delivery
of this Agreement is conclusive evidence that such party has relied on the
foregoing representation and warranty. Each party to this Agreement shall
indemnify and hold each other party to this Agreement harmless from and
against any claim for commissions, fees or other compensation by any Person
who shall claim to have dealt with such indemnifying party in connection with
this Agreement and/or the proposed transactions contemplated hereby and for
any and all costs incurred by such indemnified party in connection with such
claims, including reasonable attorneys' fees, costs and disbursements and
costs incurred in connection with the enforcement of the foregoing indemnity.
The provisions of this Section 14.21 shall survive the expiration or
termination of this Agreement.
14.22 Indemnification. (a) Except as otherwise provided in Section
4.01(c) and Section 12.01, the LLC shall indemnify and hold harmless each of
the Members and their respective Affiliates (and, solely with respect to the
Reckson Members, those Affiliates of the Reckson Members that held direct or
indirect interests in the Property immediately preceding the
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date hereof) (collectively, the "Indemnitees") from and against any and all
claims, demands, losses, damages, liabilities, lawsuits and other preceding,
judgments, awards, costs and expenses (including reasonable attorneys' fees,
disbursements and court costs) to the extent the same arise directly or
indirectly from the ownership, operation, use, maintenance or management of
the Property or by reason of its acts or omissions which are for or on behalf
of the LLC or the Property Owner and taken in accordance, or believed in good
faith to be in accordance, with such Member's responsibilities and obligations
under this Agreement; provided, that the foregoing indemnity shall not apply
to the extent the same arise out of or result from the willful misconduct or
gross negligence of, or willful breach of the express terms of this Agreement
by such Indemnitee.
(b) Except in the case of willful misconduct, gross negligence or
willful breach of the express terms of this Agreement by a Member, no Member
shall be liable to any Unaffiliated Member or the LLC for (i) any act or
omission performed or omitted in good faith, (ii) such Member's failure or
refusal to perform any act, except those required by the terms of this
Agreement or (iii) the negligence, dishonesty or bad faith of any agent,
consultant or broker of the LLC selected, engaged or retained in good faith
and with reasonable prudence.
(c) Other than with regards to tax, UBTI and other similar
matters, the Members shall be entitled to rely on the advice of counsel or
public accountants experienced in the matter at issue and any act or omission
of a Member pursuant to such advice shall in no event subject such Member to
liability to the LLC or any Unaffiliated Member.
(d) Without limiting the foregoing provisions of this Section
14.22, in any action brought against a Member pursuant to the LLC Act, the
Member named as a defendant in such suit shall be entitled to be indemnified
to the fullest extent permitted under the LLC Act or any other applicable law
(the "Indemnity Laws") and, to the fullest extent permitted under the
Indemnity Laws, the LLC shall advance any expenses incurred by such defending
Member in defending such action, subject to repayment.
(e) If any claim, action or proceeding is made or brought against
a party (the "indemnified party") and pursuant to which claim, action or
proceeding another (the "indemnifying party") shall be obligated to indemnify
the indemnified party under the terms of Section 4.01(c) or this Section
14.22, then the indemnifying party at its sole cost and expense, shall resist
or defend such claim, action or proceeding in the indemnified party's name, if
necessary, by such attorneys as the indemnified party shall approve, which
approval shall not be unreasonably withheld (and shall be deemed granted if
such attorney is selected by the indemnifying party's insurer). If any claim
is made against the indemnified party, the indemnified party shall give notice
of the claim to the indemnifying party in order that the indemnifying party
can undertake its obligations pursuant to the first sentence of this paragraph
(e). The indemnifying party may settle any such action involving the
indemnified party on such terms as the indemnifying party determines, but only
if the indemnified party receives a general release from the claimant in the
action. Failure by the indemnified party to notify the indemnifying party of
any claim, action or proceeding shall not affect the indemnifying party's
obligations hereunder unless the failure to notify is prejudicial to the
indemnifying party.
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14.23 Business Day Extension. In the event any time period or any
date provided in this Agreement ends or falls on a day other than a Business
Day, then such time period shall be deemed to end and such date shall be
deemed to fall on the next succeeding Business Day, and performance hereunder
may be made on such Business Day with the same force and effect as if made on
such other day.
14.24 Consent to Jurisdiction; Choice of Forum. With respect to:
(a) any legal proceeding or motion to compel arbitration of those
disputes that are arbitrable under Sections 7.02(f) and (g) and Section 7.04
of this Agreement,
(b) any legal proceeding or motion to enforce or reduce to
judgment an arbitration award rendered in any dispute arising under Sections
7.02(f) and (g) and Section 7.04 of this Agreement, or to enforce such a
judgment, and
(c) any other legal suit, action or proceeding concerning a
non-arbitrable dispute arising under or relating to this Agreement,
each Member (i) irrevocably and unconditionally consents and submits to the
exclusive jurisdiction of the United States District Court for the Southern
District of New York and the Supreme Court of the State of New York for New
York County, or, in the absence of subject matter jurisdiction in either
court, only then to the jurisdiction of the New York Court of Claims; (ii)
irrevocably and unconditionally agrees that all claims in respect of matter
may be heard and determined in such courts; and (iii) irrevocably and
unconditionally waives any objection it might now or in the future be able to
raise that either the United States District Court for the Southern District
of New York or the Supreme Court of the State of New York for New York County
is an inappropriate venue, an inconvenient forum, or otherwise not the proper
court to resolve such dispute. Each Member also irrevocably consents to the
service of any and all process issued by any of the aforementioned courts in
any such legal suit, action or proceeding by the mailing of copies of such
process by registered or certified mail, postage prepaid, to such Member at
such Member's address for notices as set forth in Section 14.03. Nothing
contained in this Section 14.24 shall affect the right of a Member to serve
process in any other manner permitted by applicable law.
14.25 No Presumption. This Agreement shall be construed without
regard to any presumption against the party causing this Agreement to be
drafted.
14.26 Confidentiality. Each of the Members represents and warrants
that prior to the date hereof it has not, except with the consent of the all
Unaffiliated Member disclosed any of the teens, conditions, obligations or
matters contained in, or relating to, this Agreement and the transactions
contemplated herein other than to their respective counsel, accountants and
other advisors and their members, partners, managers, investors and lenders.
Each of the Members covenants and agrees (and agrees to cause its employees,
agents, or Affiliates) not to disclose the economic teens of this Agreement or
the Persons set forth on the Restricted List except (i) to any lender
providing Mortgage Loan or other financing to the Property Owner or the LLC,
(ii) to such Member's lenders, accountants and attorneys, (iii) to any
prospective purchaser of its Interest, so
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long as such party is bound by a confidentiality agreement on terms which are
substantially similar in all respects to this Section 14.26, (iv) pursuant to
a subpoena or order issued by a court, arbitrator or governmental body, agency
or official, (v) to one or more of its potential investors, (vi) pursuant to
any freedom of information laws, (vii) pursuant to any other governmental
requirements (e.g., securities law requirements) or (viii) with the prior
written consent of all Unaffiliated Members which, with respect to
distributing a press release shall not be unreasonably withheld. To avoid any
ambiguity, Investor recognizes and agrees that the Reckson Members will be
required to file this Agreement with the Securities Exchange Commission and/or
the New York Stock Exchange. In the event that a Member shall receive a
request to disclose any of the terms of this Agreement under a subpoena or
order, such Member shall (x) promptly notify the LLC and all Unaffiliated
Members, (y) consult with the LLC on the advisability of taking steps to
resist or narrow such request, and (z) if disclosure is required or deemed
advisable, reasonably cooperate with the LLC (at no cost to such Member) in
any attempt it may make to obtain an order or other assurance that
confidential treatment will be accorded those terms of this Agreement that are
disclosed.
14.27 Lender's Rights. For the avoidance of doubt, the parties
confirm that, in connection with any Mortgage Loan granted with respect to the
Property, the mortgagee may foreclose on its collateral free and clear of any
rights under Articles IX or X on the part of the Members under this Agreement
and Administrative Member may (on behalf of the LLC) execute and deliver any
documentation reasonably required by an actual or prospective mortgagee with
respect to the foregoing.
14.28 Property Owner Actions. The parties hereto acknowledge that
corporate, partnership and limited liability company formalities shall be
recognized in connection with the operation of the Applicable Entities.
Accordingly, all actions of the Property Owner caused by Administrative Member
shall be effectuated by Administrative Member causing the LLC (as the sole
member of the LLC) to cause the Property Owner to act.
14.29 Prohibited Persons. Each Investor Member has implemented
procedures to ensure that no Investor Member nor any Person who now or
hereafter owns any equity interest in any Investor Member is a Prohibited
Person or Controlled by a Prohibited Person (provided that this requirement
shall not apply to any Person to the extent that such Person's interest in the
LLC is through a U.S. Publicly-Traded Entity).
14.30 Signage. Subject to the terms and provisions of the Citibank
Lease, the Reckson Members may cause the Property Owner to place at the
Property signs, logos and other items identifying the Property as "Reckson" or
"RA" properties or as properties "managed by Reckson" (or employing similar
nomenclature); provided that the rights of the Reckson Members set forth above
shall terminate in the event a Reckson Member shall be removed as
Administrative Member. The parties acknowledge that in the event a Reckson
Member shall be so removed, the replacement Administrative Member may not
cause any signage to be placed at the Property identifying the ownership of
the Property (it being agreed that Administrative Member may allow customary
signage identifying the name of the Managing Agent to be placed at the
Property).
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ARTICLE XV
ARBITRATION
(a) Any dispute under Section 7.02(f) or (g) and Section 7.04 of
this Agreement shall be finally settled by arbitration in accordance with the
CPR Institute for Dispute Resolution Rules for Non-Administered Arbitration
(the "CPR"), except as modified herein. The place of arbitration shall be New
York, New York. Either Member may commence arbitration by sending to the other
party a notice of statement of claim of arbitration. Within 5 days after
receipt of the notice of arbitration, the respondent shall deliver to the
claimant a notice of defense. In the event the respondent does not deliver
such a notice, all claims set forth in the demand shall be deemed denied.
(b) The arbitration shall be conducted by a sole arbitrator
jointly appointed by the Members within 10 days of receipt by the respondent
of the notice of arbitration. If the parties have not jointly appointed an
arbitrator by that time, either party may request the CPR to appoint the sole
arbitrator, and the CPR shall endeavor to make the appointment within 5 days
following such request; provided, however, that its failure to meet that
deadline shall in no way impair the effectiveness of the appointment. The CPR
shall endeavor to appoint as arbitrator a person with substantial experience
in the real estate business, but the appointee's qualifications or lack of
qualifications in this respect shall under no circumstances impair the
effectiveness of the appointment or provide cause for challenge. The CPR shall
have no obligation to follow the procedures set forth in Rule 6 of the CPR,
but shall instead appoint a person whom it deems qualified to serve.
(c) The arbitrator shall have authority to take all steps
necessary and appropriate in order to hold a hearing within 40 days of his or
her appointment and to render an award within 5 days thereafter. The
arbitrator shall have full discretion to set the procedure or modify the rules
governing the arbitration in any way he or she deems necessary in order to
meet those deadlines; provided, however, that failure to meet those deadlines
shall in no way affect the validity or effectiveness of the award.
(d) The arbitration and this clause shall be governed by Title 9
(Arbitration) of the United States Code, the decision of the arbitration shall
be final and unappealable and judgment on the award may be entered by any
court of competent jurisdiction. The parties herewith consent to jurisdiction
in the federal and state courts located in the county of New York, New York,
for the purpose of enforcing the award.
(e) Each Member is required to continue to perform its obligations
under this Agreement pending final resolution of any dispute arising out of
relating to this Agreement, unless to do so would be impossible or
impracticable under the circumstances.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed on their behalf as of the day and year first above written.
ONE COURT SQUARE MEMBER LLC, a
Delaware limited liability company
By: Reckson Operating Partnership, L.P.,
a Delaware limited partnership, its
sole member
By: Reckson Associates Realty Corp.,
a Maryland corporation, its
general partner
By:
--------------------------------
Name:
Title:
Tax ID No.: ▇▇-▇▇▇▇▇▇▇
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed on their behalf as of the day and year first above written.
ONE COURT SQUARE MEMBER LLC, a
Delaware limited liability company
By: Reckson Operating Partnership, L.P.,
a Delaware limited partnership, its
sole member
By: Reckson Associates Realty Corp.,
a Maryland corporation, its
general partner
By:
--------------------------------
Name:
Title:
Tax ID No.: ▇▇-▇▇▇▇▇▇▇
ONE COURT SQUARE INVESTOR, LLC, a
Delaware limited liability company
By: JPM I&G Domestic JV 13, LLC, a
Delaware limited liability company
By: JPM I&G Domestic REIT, Inc.
By:
----------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
By: JPM I&G Direct JV 13, LLC, a
Delaware limited liability company
By: ▇.▇. ▇▇▇▇▇▇ U.S. Real Estate
Income and Growth Direct, LP,
a Delaware limited partnership
By: I&G Manager, LLC, its general
partner
By:
------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
By: I&G Cayman Sub Corp JV 13, Inc., a
Delaware corporation
By:
--------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
By: SSPF One Court Square Member, LLC, a
Delaware limited liability company
By: Commingled Pension Trust Fund
(Special Situation Property) of
JPMorgan Chase Bank, N.A.
By:
----------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
By: NAPI REIT, inc., a Maryland corporation
By:
------------------------------------------
Name:
Title:
Tax ID No.: ▇▇-▇▇▇▇▇▇▇
- 91 -
The undersigned hereby
acknowledges and consents
to the provisions of Sections 4.01(c):
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Reckson Associates Realty Corp.,
a Maryland corporation, its general partner
By:
---------------------------------
Name:
Title:
The undersigned hereby
acknowledges and consents
to the provisions of Sections 4.01(c):
RECKSON OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Reckson Associates Realty Corp.,
a Maryland corporation, its general partner
By:
---------------------------------
Name:
Title:
Exhibit A
---------
Legal Description
-----------------
ALL THAT CERTAIN PLOT, PIECE, OR PARCEL OF LAND, SITUATE, LYING, AND BEING IN
THE BOROUGH AND COUNTY OF QUEENS, CITY AND STATE OF NEW YORK, BOUNDED AND
DESCRIBED AS FOLLOWS:
BEGINNING AT THE CORNER FORMED BY THE INTERSECTION OF THE NORTHWESTERLY SIDE
OF ▇▇▇▇▇▇▇ AVENUE WITH THE WESTERLY SIDE OF COURT SQUARE;
RUNNING THENCE SOUTH 33 DEGREES 20 MINUTES 00 SECONDS WEST AND ALONG THE
NORTHWESTERLY SIDE OF ▇▇▇▇▇▇▇ AVENUE, 220.449 FEET TO THE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇;
THENCE SOUTH 75 DEGREES 17 MINUTES 05.2 SECONDS WEST AND ALONG THE NORTHERLY
SIDE OF 45TH AVENUE, 286.083 FEET;
THENCE NORTHERLY AT RIGHT ANGLES TO THE NORTHERLY SIDE OF 45TH AVENUE, 25.003
FEET;
THENCE WESTERLY PARALLEL WITH THE NORTHERLY SIDE OF 45TH AVENUE, 90.027 FEET
TO THE ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
THENCE NORTH 14 DEGREES 42 MINUTES 54.8 SECONDS WEST AND ALONG THE EASTERLY
SIDE OF 23RD STREET, 75.011 FEET;
THENCE EASTERLY AT RIGHT ANGLES TO THE EASTERLY SIDE OF 23RD STREET, 115.013
FEET;
THENCE NORTHERLY AT RIGHT ANGLES TO THE LAST MENTIONED COURSE, 100.015 FEET TO
THE SOUTHERLY SIDE OF 44TH DRIVE;
THENCE NORTH 75 DEGREES 17 MINUTES 05.2 SECONDS EAST AND ALONG THE SOUTHERLY
SIDE OF 44TH DRIVE, 425.048 FEET TO THE CORNER FORMED BY THE INTERSECTION OF
THE SOUTHERLY SIDE OF 44TH DRIVE WITH THE WESTERLY SIDE OF COURT SQUARE;
RUNNING THENCE SOUTH 14 DEGREES 42 MINUTES 54.8 SECONDS EAST AND ALONG THE
WESTERLY SIDE OF COURT SQUARE 52.659 FEET TO THE CORNER FORMED BY THE
INTERSECTION OF THE NORTHWESTERLY SIDE OF ▇▇▇▇▇▇▇ AVENUE WITH THE WESTERLY
SIDE OF COURT SQUARE, THE POINT OR PLACE OF BEGINNING.
FOR INFORMATION ONLY: ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇
- ▇▇ -
▇▇▇▇▇▇▇ B
---------
Form of Management Agreement
----------------------------
(attached hereto)
- 94 -
[NOTE: THIS MANAGEMENT AGREEMENT SHALL NOT BE EXECUTED OR BECOME EFFECTIVE
UNLESS AND UNTIL CITIBANK TENANT SHALL HAVE SURRENDERED A PORTION OF THE
PROPERTY DEMISED PURSUANT TO ITS LEASE PURSUANT TO ARTICLE 4 OF THE CITIBANK
LEASE OR OTHERWISE]
PROPERTY MANAGEMENT AGREEMENT
BETWEEN
RECKSON COURT SQUARE, LLC
AND
RANY MANAGEMENT GROUP, INC.
TABLE OF CONTENTS
RECITALS ....................................................................1
INDEX OF DEFINED TERMS ......................................................1
AGREEMENT ...................................................................6
I. Appointment....................................................6
II. Term...........................................................6
III. Services To Be Performed By Property Manager...................6
(A) Collecting Rents and Enforcing Obligations.................6
(B) Paying Expenses............................................7
(C) Property Management Office.................................9
(D) Budget; Records and Reports................................9
(E) Making Contracts for the Property.........................16
(F) Maintaining the Property..................................17
(G) Maintaining Insurance.....................................17
(H) Real Estate Taxes.........................................19
(I) Employing Personnel.......................................19
(J) Employing Counsel and Other Professionals.................19
(K) Services with Respect to Applicable Loans.................20
(L) Miscellaneous.............................................20
(M) Renting the Property......................................22
IV. Compensation..................................................23
(A) Management Fee............................................23
(B) Leasing Commissions.......................................23
V. Bank Account..................................................25
VI. Hold Harmless.................................................25
VII. Termination...................................................26
VIII. Notices.......................................................28
IX. No Joint Venture..............................................30
X. Agreement Not Assignable......................................30
XI. Entire Agreement and Binding Effect...........................31
XII. New York Law..................................................31
-i-
XIII. Attorneys' Fees...............................................31
XIV. Authority.....................................................31
XV. Signage.......................................................31
XVI. Independent Contractor........................................31
XVII. Arbitration...................................................31
XVIII. Severability..................................................32
XIX. Confidentiality...............................................32
XX. GACC Loan.....................................................32
XXI. Major Decisions...............................................33
EXHIBIT A DESCRIPTION OF THE PROPERTY..................................A-1
EXHIBIT B INTENTIONALLY OMITTED........................................B-1
EXHIBIT C SAMPLE REPORTING PACKAGE.....................................C-1
EXHIBIT D UBTI QUESTIONNAIRE...........................................D-1
EXHIBIT E INTENTIONALLY OMITTED........................................E-1
EXHIBIT F STANDARD COMMISSIONS.........................................E-1
-ii-
PROPERTY MANAGEMENT AGREEMENT
-----------------------------
THIS PROPERTY MANAGEMENT AGREEMENT ("Agreement") dated as of
______________ ___ 20__, is between RECKSON COURT SQUARE, LLC, ("Owner"), whose
principal offices are located do Reckson Associates Realty Corp. at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and RANY MANAGEMENT GROUP, INC., a
Delaware corporation ("Property Manager"), whose principal office is located
at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITALS
WHEREAS, Owner owns a certain building in Long Island City, New York,
commonly known as One Court Square, more particularly described in Exhibit A
hereto (the land beneath the building and any other improvements located
thereon, the "Premises");
WHEREAS, Owner desires to retain Property Manager as an independent
contractor, with responsibilities for managing, operating, leasing and
maintaining the Premises;
WHEREAS, Property Manager is willing to perform such services as
herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, Owner and Property Manager agree as follows:
INDEX OF DEFINED TERMS
Unless otherwise specified references to Articles of Sections are to
articles and sections of this Agreement. Unless the context otherwise
specifies or requires, capitalized terms used herein shall apply equally to
both the singular and the plural forms of such capitalized terms and shall
have the following respective meanings:
Administrative Member: As defined in Article I of the Operating
Agreement.
Affiliate: As defined in Article I of the Operating Agreement.
Agreement: As defined in the preamble to this Agreement.
Applicable Loan: As defined in Article I of the Operating Agreement.
Auditor: As defined in Section 1ll(D)(vii).
Bank Account: As defined in Section V.
Base Rent: As defined in Exhibit F.
Budgets: As defined in Section III(D)(ii).
Business Day: Monday through Friday of each week, except that a legal
holiday recognized as such by the Government of the United States and any
other day on which banks in the State of New York are required or permitted to
be closed shall not be regarded as a business day.
Business Plan: As defined in Section lll(D)(iii).
Capital Budget: As defined in Section III(D)(ii).
Capital Event: Means any sale, Financing, Casualty or Condemnation
that occurs during the term hereof with respect to which net capital proceeds
are received by Owner.
Capital Expenditure: Means capital expenditures as determined under
GAAP, except to the extent otherwise set forth in this Agreement. Capital
Expenditures will be reported on the cash basis of accounting. Capital
Expenditures shall include tenant improvements, building improvements, and
capitalizable costs related to executed Leases, including Leasing Commissions
and legal fees.
Cash Flow: Means, for any period, Gross Revenue collected less
Operating Expenses, Debt Service, and Capital Expenditures paid during each
period.
Casualty: Means any damage to, or destruction of the Property or any
part thereof from a fire or other casualty.
Citibank Lease: That certain Lease, dated as of May 12, 2005, between
Owner, as landlord, and Citibank, N.A., as tenant, as amended by that certain
First Amendment to Lease dated as of August 3 2005 between Owner and Citibank,
N.A., as the same may have been or may hereafter be further amended, restated,
replaced, supplemented or otherwise modified from time to time.
Citibank Tenant: [Citibank, N.A., a national banking association], or
any successor tenant under the Citibank Lease.(1)
CM: As defined in Section III(E)(ii).
CM Fee: For each Construction Project, an amount equal to the product
of the Project Cost and .02. If, pursuant to the terms of its Lease, a tenant
pays all or a portion of the construction management fee to Property Manager
in respect of a Construction Project, then such payment shall be credited
against the CM Fee in respect of such Construction Project. "Project Costs"
shall include, with respect to each Construction Project, all hard and soft
costs (including engineering, expediting and licensing fees) actually incurred
in connection with such
----------------------
(1) Update if not Citibank, N.A. at the time of execution.
-2-
Construction Project, but shall not include the costs of any furniture and
other removable personal property.
CM Services: As defined in Section III(E)(ii).
Co-Brokers: As defined in Section III(M)(i).
Condemnation: Means any condemnation, eminent domain or other taking
or temporary or permanent requisition of the Property, any part thereof, any
interest therein or any right appurtenant thereto, or any change of grade
affecting the Property, as the result of the exercise of any right of
condemnation or eminent domain. A conveyance in lieu or in anticipation of
condemnation shall be deemed to be a Condemnation.
Construction Project: As defined in Section 111(E)(ii).
Contract: As defined in Section III(E)(i).
CPI: Means the Consumer Price Index for All Urban Consumers (CPI-U),
All Items, applicable to the N.Y.-Northeastern N.J. area (1982-84 = 100) for
urban wage earners and clerical workers, as published by the U.S. Department
of Labor, Bureau of Labor Statistics. If such Consumer Price Index is
discontinued or otherwise revised during the term of this Agreement, the
Consumer Price Index for All Urban Consumers (CPI-U), All Items, U.S. City
Average (1982-84 = 100) for urban wage earners and clerical workers, as
published by the U.S. Department of Labor, Bureau of Labor Statistics, shall
be used, and if such national index is discontinued or otherwise revised
during the term of this Agreement, such other government index or computation
with which it is replaced shall be used in order to obtain substantially the
same result as would be obtained if the Consumer Price Index had not been
discontinued or revised.
CPI Increase: As of any date during the term of this Agreement (such
date, the "Determination Date"), the percent of increase, if any, in the CPI
for the month in which the applicable Determination Date occurs over the CPI
for December, 20__.
Debt Service: Means all sums payable under any Financing, including,
without limitation, an Interest Expense.
Exclusive Broker: As defined in Section III(M)(i).
Existing Lease: As defined in Section IV(B)(i).
Final Plan: As defined in Section IlI(D)(iii).
Financing: Means any financing or refinancing by debt, sale and
leaseback or other form of financing with respect to the Property or any debt
or other similar monetary obligation of Owner.
-3-
Fiscal Year: As defined in Section ll1(D)(iv).
GAAP: Accounting principles generally accepted in the United States,
consistently applied.
Gross Collections: Means all amounts actually collected by Property
Manager as rents or additional rent or other charges in connection with the
use and occupancy of the Property, but shall exclude: (i) proceeds with
respect to any Capital Event, (ii) income derived from interest on investments
or otherwise; (iii) proceeds of claims on account of insurance policies
(except for business interruption or rental insurance); (iv) abatement or
refund of taxes; (v) awards arising out of any Condemnation; (vi) discounts
and dividends on insurance policies; (vii) payments made by tenants for the
cost of tenant improvements paid for by Owner, which payments are separately
identified in the Lease as additional rental revenue; (viii) all purchase
discounts, concessions, rebates and allowances; (ix) security deposits unless
applied and (x) any lease buy-out, pick-up or any other consideration received
by Owner for accepting a surrender or other termination or cancellation of a
Lease, voluntarily or otherwise.
Gross Revenues: Means, for any period of reference, the gross
revenues of any kind whatsoever derived on an accrual basis of accounting, as
applicable, from or in respect of the Property, including, without limitation,
all income and revenue derived from all sources whatsoever as a result of the
operation of the Property, all rents and other moneys due from tenants or
licensees as billed in accordance with the Leases, including percentage and
overage rents, operating expense pass-throughs, real estate taxes and common
area maintenance charges, all refunds, rebates and recoveries of items, if
any, previously charged as deductions from gross revenue, but excluding any
proceeds of any Capital Event relating to the Property or any personal
property (other than rent loss insurance under the property, casualty or
boiler policies which shall be included).
Interest Expense: Means all interest payments due under any
Financing.
Investor: One Court Square Investor, LLC, a Delaware limited
liability company, whose principal office is located c/o ▇.▇. ▇▇▇▇▇▇
Investment Management Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
together with its permitted successors and assigns under the Operating
Agreement.
Investor Report Recipient: Initially shall be Investor, at the
addresses set forth for Investor in Section VIII below, or any changes or
substitutions thereto designated by Investor to Property Manager in writing.
Lease: Any lease, license or other agreement now or hereafter entered
into which permits the use and occupancy of any portion of the Property.
Leasing Commission: As defined in Section IV(B).
-4-
Leasing Guidelines: Means the leasing program for the Property to be
implemented by Property Manager, which shall include leasing parameters,
including, rents, tenant improvement allowances, free rent periods and other
tenant concessions, which leasing program shall include the then current
year's Operating Budget and shall be subject to the prior written approval of
Owner.
Legal Requirements: As defined in Section III(L)(v).
LLC: One Court Square Holdings LLC, a Delaware limited liability
company which is the sole member of Owner.
LLC Charges: As defined in Article I of the Operating Agreement.
Major Line Item: As defined in Article I of the Operating Agreement.
Management Fee: As defined in Section IV(A).
Modified Accrual Basis: As defined in Section III(D)(v)(a).
MRI: As defined in Section III(D).
Necessary Expense: As defined in Article I of the Operating
Agreement.
Operating Agreement: Amended and Restated Operating Agreement of One
Court Square Holdings LLC, dated as of November __, 2005, as further amended.
Operating Budget: As defined in Section III(D)(ii).
Operating Expenses: Means, for any period, all accrual based expenses
exclusive of Interest Expense, if applicable, and Capital Expenditures
incurred with respect to the Property in accordance with the terms of this
Agreement.
Operating Standard: As defined in Section I.
Other Reckson Property: As defined in Section BI(M)(iii).
Owner: As defined in the preamble to this Agreement.
Personal Property: As defined in Section III(E)(i).
Property: As defined in the recitals to this Agreement.
Property Manager: As defined in the preamble to this Agreement.
Proposed Plan: As defined in Section III(D)(ii).
-5-
Prospective Tenants: As defined in Section IV(B)(v).
Reckson: One Court Square Member LLC, a Delaware limited liability
company, together with its permitted successors and assigns under the
Operating Agreement.
Reckson Member: As defined in Article I of the Operating Agreement.
Revised Plans: As defined in Section DI(D)(ii).
Senior Officer: Means any of the individuals who hold a position of
executive vice president (or its functional equivalent to the extent such
title is no longer in use), corporate senior vice president (or its functional
equivalent to the extent such title is no longer in use) or higher at Property
Manager, but excluding those who were not employed by Property Manager or any
of its Affiliates 270 days prior to the applicable act in question. As of the
date hereof the following individuals hold the position of executive vice
president, corporate senior vice president or higher at Property Manager:
[Insert Names].
Standard Commission: As defined in Section III(M)(i).
AGREEMENT
I. Appointment. Owner hereby appoints Property Manager, and Property
Manager hereby accepts appointment, on the teal's and conditions hereinafter
set forth, as management agent for the Property. Property Manager shall manage
the Property in accordance with the Operating Standard and the Business Plan.
"Operating Standard" shall mean the management of the Property in an
efficient, prudent and economic manner, consistent with (A) its existing
character, condition and level of operation and maintenance (subject to
reasonable wear and tear) as a first-class office building in New York City
and (B) then current prudent business and management practices applicable to
the operation and maintenance of first-class office buildings in New York City
comparable to the Property. Property Manager agrees to use all commercially
reasonable efforts subject to the Business Plan to maintain the Operating
Standard with respect to the Property.
II. Term. The term of this Agreement shall commence on the date
hereof and expire on the first (1st) anniversary of the date hereof, which
term shall be automatically renewed each year unless Property Manager or Owner
delivers written notice to the other to the contrary, subject to earlier
termination as provided in Section VII.
III. Services To Be Performed By Property Manager. Property Manager
shall provide the following services for Owner, all of which shall be
performed in a manner consistent with the Operating Standard and the Business
Plan, subject to the specific provisions of this Agreement, including the
limitations with respect to expenditures of funds (as set forth in Section
III(B)(ii)) and the availability of funds.
(A) Collecting Rents and Enforcing Obligations. (1) Property
Manager shall make diligent efforts to collect all rents and other sums due
from (i) tenants of
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the Property; (ii) concessionaires in connection with their authorized
operation of facilities on or in the Property, and (iii) all others from whom
rents or other sums are due to Owner with respect to the Property in the
ordinary course of business. Owner authorizes Property Manager to request,
demand, collect, receive and give receipt for all such rents and other charges
in the name of and on behalf of Owner. All funds collected by Property Manager
shall be deposited promptly into the Bank Account. Property Manager shall ▇▇▇▇
tenants of the Property in a timely manner. Property Manager and Owner shall
promptly notify the other upon learning of any event of default or material
default by Owner or any tenant under its Lease. In the event of any such
material default or event of default, Property Manager shall consult with
Owner concerning the action to be taken with respect thereto and, at the
expense of Owner, take such action as Owner shall direct with respect to such
material default or event of default, including (in respect of default or
event of default by a tenant) instituting legal proceedings in the name of
Owner for the collection of rents and other charges payable by, and the
enforcement of the other obligations of, the tenants under their Leases and
for the dispossession of any tenants in default under their Leases. Without
the prior written consent of Owner, Property Manager shall not settle any such
legal proceedings or any claim for delinquent rents or other charges payable
by or for the enforcement of any other obligation of any tenant under its
Lease. Without the consent of Owner, Property Manager (i) shall not receive or
collect any rents for more than one month in advance (plus security deposits),
(ii) shall not waive, excuse, condone, discount, set-off, compromise or in any
manner release or discharge any tenant (or any guarantor under any guaranty of
any Lease) from its obligations under its Lease (or such guaranty); (iii)
shall not cancel, terminate or consent to the surrender of any Lease; (iv)
shall not commence any action, suit or proceedings for the collection of rent,
for removal or for the dispossession of any tenant or exercise any right of
recapture provided in any Lease; (v) shall not modify, or in any way alter the
provisions of any Lease in a manner which would reduce the rent thereunder,
shorten the term thereof, impose additional obligations on the landlord
thereunder, or reduce the obligations of the tenant thereunder; (vi) shall not
relocate any tenant within the Property; (vii) shall not consent to any
modification of the express purposes for which any tenant's premises have been
leased; and (viii) shall not consent to any subletting of any part of the
Property, to any assignment of any Lease by any tenant thereunder, or to any
assignment or further subletting of any sublease.
(B) Paying Expenses.
(i) Power to Disburse. Owner shall be responsible for
providing funds for the Bank Account or causing funds to be so provided to
meet on a timely basis the cash requirements of Property Manager for the
proper operation of the Property pursuant to this Agreement. Property Manager
shall be a signatory on the Bank Account and as such shall have the power, and
is hereby authorized and directed, to disburse or cause to be disbursed from
the Bank Account any amounts either payable to third parties or to Property
Manager in accordance with this Agreement.
(ii) Limitation on Disbursements. Property Manager shall
not disburse any sum in connection with the operation, maintenance or repair
of the Property, whether such expenditures are operating or capital
expenditures, except (a) as permitted under the Business Plan or otherwise
authorized under this Agreement (including, without limitation, under Section
III(D)(iii) herein); (b) if such cost is incurred in connection with a
Necessary
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Expense; (c) expenditures in connection with providing additional services to
tenants for which Owner is entitled to be reimbursed by such tenant or (d)
with the prior written consent or approval of Owner.
(iii) No Obligation to Advance. Property Manager shall not
be required to make any advance to or for the account of Owner, or to pay any
amount, except out of funds held by Property Manager in the Bank Account for
the account of Owner or provided by Owner as aforesaid; nor shall Property
Manager be required to incur any obligation to third parties unless Owner
shall furnish Property Manager with necessary funds for the discharge thereof.
Subject to the provisions of paragraph (ii) above, if the Bank Account has
insufficient funds to permit Property Manager's proper and timely performance
of its obligations under this Agreement, Property Manager shall notify Owner
of the same at least 10 days prior to the need for such funds (except in the
case of an emergency) and, on or before such date, Owner shall deposit such
amount in the Bank Account to enable Property Manager to pay expenses in
accordance with this Agreement.
(iv) Remainder Remitted to Owner. After paying the expenses
of the Property as set forth herein and maintaining a sufficient reserve in
accordance with the Business Plan ("Property Level Reserves") for the timely
payment of future expenses, taking into account anticipated revenues and
expenses, Property Manager shall remit to Owner the remainder of the rents and
other sums collected hereunder from time to time as directed by Owner, but in
no event later than the 20th day of each month for the preceding month.
(v) Excluded Expenses. Except as specifically provided below,
any payments to be made by Property Manager shall be made by Property Manager
on behalf of Owner out of the Bank Account or as may otherwise be provided by
Owner. Property Manager shall not be reimbursed under this Agreement for the
following expenses:
(a) cost of salary, wages, commissions or other
remuneration, and related benefits for any employees, officer, director,
partner, principal or executive of Property Manager, except that subject to
the other provisions of this Agreement, Property Manager shall be reimbursed
for (x) the salary and other reasonable benefits (including workers'
compensation insurance to the extent provided in the Business Plan) of the
employees of Property Manager on-site at the Property, and (y) the portion of
the salaries and other reasonable benefits (including workers' compensation
insurance to the extent provided in the Business Plan) of the senior property
manager and project accountants (but only to the extent provided for in the
Business Plan or pursuant to the provisions of (D) (ii) below),
notwithstanding that they may be located off-site, each of which sums shall be
an operating expense of the Property and shall be allocated to the extent that
such employees devote their time to management, maintenance or operation of
the Property;
(b) the cost of Property Manager's own office equipment,
stationery, postage, telephone, and all other administrative expenses not
properly chargeable to the Property; and
(c) general accounting and reporting services as such
services are performed by Property Manager required to fulfill Property
Manager's accounting
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and reporting obligations under this Agreement, including, but not limited to,
cost of electronic data processing equipment or cost of data processing
provided by third party data processing companies.
(C) Property Management Office. A reasonably satisfactory
property management/leasing office shall be provided to Property Manager at
the Property. The property management/leasing office at the Property shall be
used by Property Manager to perform the duties set forth in this Agreement.
Property Manager shall not pay any rent or other charges for such office. The
cost of making alterations or repairs to the office, and the cost (or rental)
of furniture, furnishings, fixtures and equipment, including but not limited
to, personal computers for such office shall be paid for by Owner as an
operating expense of the Property in accordance with the Business Plan. To the
extent appropriate, these expenditures shall be made in such a manner that
they are reimbursable by the tenants. Subject to the Leases, Property Manager
may also have reasonable access to any other portion of the Property for the
purpose of performing its duties and obligations provided hereunder.
(D) Preparing the Budget; Records and Reports. All reporting to
Owner will be completed in a hard copy format and on a CD. In addition,
Property Manager will submit certain information electronically using
Management Reports Inc. property management software ("MRI") or in a format
compatible with MRI:
(i) Standard Property Manager Reporting Period. Property
Manager shall consider the monthly reporting period to cover the period from
the 1st of the month to the last day of the current month. Property Manager
shall electronically transmit to Owner or Owner's representative the general
ledger and Lease information as provided herein, which Owner may require, on
the 15th of the following month. Property Manager shall submit to Owner copies
of all journal entries no later than the 15th of the following month for the
current month activity.
(ii) Budgets. Not later than October 1st of each Fiscal Year,
Property Manager shall prepare and submit to Owner for its approval a proposed
pro-forma business plan for the following Fiscal Year in preliminary draft
form (the "Proposed Business Plan") for the promotion, operation, and
maintenance of the Property in accordance with the Operating Standard taking
into consideration then current market conditions. Each Proposed Business Plan
shall consist of an operating budget (the "Operating Budget"), a capital
improvements budget (the "Capital Budget" and together with the Operating
Budget, the `Budgets"), and the leasing guidelines (the "Leasing Guidelines").
Each Operating Budget shall show, on a month-by-month basis, in reasonable
detail, each line item of anticipated income and expense including, without
limitation, amounts required to establish, maintain and/or increase Property
Level Reserves. Each Capital Budget shall show, in reasonable detail,
anticipated expenditures and cost of completion for Capital Improvements with
respect to the Property or portion thereof (exclusive of any CM Fees to
Property Manager). The Leasing Guidelines for the Property shall specify net
average effective rent over the term of each Lease, on a space-by-space basis,
taking into account base rent, the term of the Lease, leasing commissions due
to all leasing brokers (including overrides to Property Manager), tenant
improvements, free rent and any other tenant concessions. The Operating Budget
shall be prepared on a Modified Accrual Basis for the Property for the ensuing
Fiscal Year and shall set forth on a monthly basis Property Manager's
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good faith estimates of: (a) Gross Revenues, Operating Expenses, and Interest
Expense for the Property for such year, all in detail reasonably satisfactory
to Owner, (b) the recommended Capital Expenditures and extraordinary expenses
for such year described in reasonable detail, (c) the recommended leasing
expenditures for such year, (d) Cash Flow from the Property, (e) the amount of
Debt Service becoming due and payable during the next succeeding Fiscal Year
in connection with all Financings or advances in connection with the Property
(to the extent such information is provided to Property Manager by Owner), (f)
wages, salaries, and other compensation to be paid to employees of the
Property Manager working at or on the Property, as well as the status of any
negotiations affecting said wages, salaries and other compensation, (g) the
extent of completion of any uncompleted Improvements to the Property, together
with a projection of the costs of constructing such Improvements to be
incurred during the next succeeding Fiscal Year, (h) the current legal status
of pending or threatened suits concerning the Property (or any portion
thereof) of which Property Manager has knowledge and (i) such other
information as Owner may reasonably require. The rent roll shall be in
columnar form, with each tenant listed separately and showing for each tenant
the (1) name of such tenant, (2) floor or suite number, (3) term of its Lease,
(4) total rent to be collected and (5) the total rent broken down into various
categories such as base rent, storage rent, operating expense recoveries or
common area charges (and the percentage of the tenant's share thereof),
license fees, real estate tax reimbursements (and the percentage of the
tenant's share thereof) and any other rent or charges. Property Manager shall
also submit to Owner with the submission of the Budget, a written narrative
discussion of significant events in the relevant market where the Property is
located which shall highlight the Property's position in its relevant market
and discuss matters such as vacancy, new construction and rental trends.
(iii) Budget Approval. Not later than November 1st of each
Fiscal Year, the Property Manager shall submit to the Owner a revised Proposed
Business Plan for the following Fiscal Year, reflecting any of Property
Manager's revisions to the Proposed Business Plan. Within 30 days from
delivery of such revised Proposed Business Plan, Owner shall, in writing,
submit to Property Manager any comments or proposed revisions to the Proposed
Business Plan. Property Manager shall submit to Owner, within 15 days
thereafter, the final Business Plan (the "Final Plan"). Owner shall approve or
disapprove the Final Plan within 15 days after receipt thereof, which as so
approved shall constitute the "Business Plan". Owner acknowledges and agrees
that the Business Plan is only an estimate and not a guarantee by Property
Manager and there may be substantial variations between the estimates set
forth in the Business Plan and the actual results. The parties acknowledge and
agree that the Business Plan for Fiscal Year 20__, approved by Owner as of
_____________ __, 20__ will serve as the form of the Business Plan for all
subsequent Fiscal Years during the term of this Agreement.
(iv) Operation Within Budget. Property Manager shall use,
manage and operate the Property strictly in accordance with the then current
approved Budget. During any Fiscal Year when Owner has failed to approve any
portion of the Business Plan for the Property prior to the commencement of the
Fiscal Year to which such Business Plan relates, the Property shall be
operated during such Fiscal Year (A) in accordance with such portions of such
Business Plan as to which agreement has been reached, (B) at rates or levels
of expenditures as are actually charged or incurred with respect to Necessary
Expenses and (C) with respect to
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those portions of such Business Plan which are discretionary and as to which
agreement has not been reached, at rates or levels of expenditures in the
approved Business Plan for the preceding Fiscal Year, increased by the CPI
Increase (computed for this purpose from the January 1st of the last Fiscal
Year for which a Business Plan was approved to December 31st of the Fiscal
Year immediately preceding the Fiscal Year to which the Business Plan in
dispute relates). Any action which Property Manager takes or amounts which
Property Manager expends in accordance with the preceding sentence shall be
treated for all purposes of this Agreement as if they had been taken or
expended by Property Manager in accordance with a Business Plan approved by
Property Manager. Unless Property Manager is otherwise notified by Owner, the
fiscal year of the Property (the "Fiscal Year") shall be from the first (1st)
day of January of each year, to and including the last day of December of such
year. The Fiscal Year may not be changed without the express prior written
approval of Owner. Property Manager shall be entitled to pay all LLC Charges
as and when due to the extent such LLC Charges are either consistent with the
Business Plan, are Necessary Expenses, or if inconsistent with the applicable
Business Plan, do not exceed a Major Line Item cost by more than the lesser of
5% or $100,000 or increase the Budgets by more than the lesser of 2% or
$250,000 in the aggregate (exclusive of increases attributable to temporary
timing differences arising in the ordinary course of business which Property
Manager reasonably expects will be reversed during the next 12 months). Owner
and Property Manager shall review the Business Plan periodically and, in
connection therewith, Property Manager shall prepare and submit for Owner's
review any proposed modifications to the Business Plan. Following any
modification approved by Owner, the "Business Plan" shall be the original
Business Plan as so modified.
(v) Books and Records.
(a) Property Manager shall maintain, and keep at its
main office accurate books, records and accounts of the management,
operation and financial condition of the Property's operations. Such
books, records and accounts shall be prepared and kept on a Modified
Accrual Basis and a federal income tax basis (but only with respect
to those items identified and in the manner described in Section
III(D)(v)(b)). "Modified Accrual Basis" shall be defined as follows:
1. Gross Revenues on an accrual basis excluding
GAAP straight line rental income adjustment.
2. Operating Expenses on an accrual basis.
3. Interest Expense on an accrual basis.
4. Mortgage principal payments on a cash basis.
5. Capital Expenditures including leasing costs
such as tenant improvements and Leasing Commissions will be reflected
on a cash basis.
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6. Depreciation and amortization expenses,
with the exception of amortization of deferred financing costs, are
not to be recorded.
(b) Property Manager shall also record adjustments
to convert financial statements from Modified Accrual Basis to federal
income tax basis (or provide Investor Report Recipient with entries
to allow it to make such conversion) as follows:
1. Liability associated with prepaid rent on
a Modified Accrual Basis should be reversed and cash received should
be recorded as rental income;
2. Contra account associated with Allowance
for Doubtful Accounts under Modified Accrual Basis should be reversed
along with the related Bad Debt Expense booked under Modified Accrual
Basis; and
3. Depreciation and amortization shall be
recorded on a federal income tax basis. Property Manager shall
separately maintain and update the depreciation and amortization
schedules and make them available to Owner and/or Owner's auditors
and/or tax preparers.
(c) Owner shall at all times retain title to the
information constituting such books, records and accounts. Property
Manager shall, during the term of this Agreement, retain such books,
records and accounts. Upon termination, Property Manager shall, at
the expense of Owner, deliver such books and records to Owner. Any
and all computer programs, software and hardware not the property of
Owner utilized by Property Manager to maintain such books, records
and accounts shall in all events remain the property of Property
Manager.
(d) In the event this Agreement is terminated, Property
Manager shall deliver such books, records and accounts of the
Property to Owner at Owner's expense. Property Manager shall deliver
a final accounting within thirty (30) days after the last day of the
calendar month in which such termination occurs.
(e) Upon reasonable notice to Property Manager, Owner
may, at its expense, inspect, audit and copy such books, records and
accounts during regular business hours on a periodic or continuing
basis by accountants retained by, or other representatives of Owner,
and Property Manager shall cooperate fully with Owner in connection
with the same.
(vi) Monthly Reports. Property Manager shall furnish to
Owner and the Investor Report Recipient the following monthly reports, which
reports shall be prepared on a Modified Accrual Basis, showing monthly and
year to date activity and which shall be furnished (without notice or demand
by Owner) not later than fifteen (15) days after the end of
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the monthly reporting period in the format as outlined in the Sample Reporting
Package attached hereto as Exhibit C or as required by and satisfactory to
Owner:
(a) a statement of Cash Flow setting forth the
calculation of the Cash Flow from the Property relating to operating,
investing and financing activities, including the distribution of Cash
Flow during the reporting period;
(b) a detailed operating statement of profit and loss
showing on a Modified Accrual Basis the Gross Revenues, Operating
Expenses, Interest Expense and on a cash basis Capital Expenditures of
the Property according to pre-determined categories, in a format which
will allow for comparison to, and show variances from, the Budget on a
monthly and Fiscal Year to date basis;
(c) a balance sheet to include (1) a comparative balance
sheet of the current month against the prior month and (2) a
comparative balance sheet of the current month against the prior year
end (to the extent a prior year end statement is available to Property
Manager);
(d) an accounts receivable activity statement itemizing
for the reporting period the opening rents receivable balance, the
collected and billed rents, the closing rents receivable balance and
any advanced rent and security deposit balances;
(e) an aged accounts receivable schedule, itemizing all
outstanding accounts receivable as of the end of the reporting period
and written comments addressing efforts, or other actions, that
Property Manager has taken to collect past due balances exceeding 30
days;
(f) Property Manager's then standard form of hours and
earnings report for the employees described in Section III(D)(ii);
(g) a check register, itemizing by check number and
payee each disbursement made during the reporting period;
(h) a narrative summary of the operations of the Property
during the reporting period, highlighting all significant occurrences
and any anticipated problems and narrative explanations of all
material variances exceeding the greater of five (5) percent (5%) and
Ten Thousand Dollars ($10,000), of an individual line item of income
or expense (actual compared to Budget) for the reporting period on a
monthly and Fiscal Year to date basis;
(i) a detailed calculation of the Management Fee and any
Leasing Commission and/or CM Fee due to Property Manager;
(j) a current rent roll;
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(k) a tenant billing report (billing register);
(1) proof of cash (identifying opening cash balances,
cash received, cash disbursed and cash contributed or distributed
during the month);
(m) bank statement and reconciliation (one month in
arrears) for the Bank Account;
(n) an aged accounts payable schedule;
(o) a Capital Expenditure report including (1) leasing
costs and capital projects budgeted, (2) budgeted amount, (3) latest
estimates of cost, (4) amounts expended to date, with narrative
explanation of variances to the Budget, (5) amounts to be spent to
complete and completion status, and (6) Capital Expenditures and
leasing costs incurred but not paid;
(p) a detailed trial balance;
(q) a written report describing any written offers
received by Property Manager for the purchase of all or any part of
the Property;
(r) a leasing report detailing leasing activity and
vacancy for the current month;
(s) a property summary report;
(t) an asset overview report;
(u) tenant sales report, if applicable; and
(v) a schedule of all transactions with the Property
Manager or an Affiliate of the Property Manager.
Each of the above described monthly reports shall be prepared, where
applicable, on a Modified Accrual Basis.
(vii) Annual Reports.
(a) In addition to the regular monthly reports to be
provided to Owner and the Investor Report Recipient pursuant to the
▇▇▇▇▇ hereof, Property Manager shall furnish to Owner and the Investor
Report Recipient on an annual basis, a report of minimum base rental
payments for existing Leases year by year for a prospective period of
five (5) years with an additional amount representing the remaining
total rental payments over the Lease term exceeding that five (5) year
period. Such annual periods shall coincide with the period from
January 1 - December 31 and fiscal period from
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October 1 - September 30. Such annual reports shall be due five (5)
Business Days before the annual period ending December 31st. Owner, at
its reasonable discretion, may modify the timing and frequency of this
request.
(b) Property Manager shall cooperate with Owner's
Auditor, at the Owner's discretion, in the preparation of a GAAP basis
year end statement of the Property in connection with the continuing
operations of the Property, including a balance sheet and the related
statements of income and cash flows, which shall be furnished not
later than ninety (90) days after the end of each Fiscal Year.
(c) a completed UBTI questionnaire in the form attached
hereto as Exhibit D, provided that Property Manager shall have no
liability to any Person in connection with any such questionnaire.
Each of the reports provided to Owner and the Investor Report Recipient by
Property Manager pursuant to this Agreement shall be prepared on a Modified
Accrual Basis, and, at the option of the Owner, shall be audited by an
accounting firm selected by Owner (the "Auditor"). Owner shall be responsible
for arranging for such audit and Property Manager shall coordinate with
Owner's Auditor and cooperate and be responsible for the preparation of the
Owner's audited financial statements.
(viii) Tax Matters Reporting.
(a) Property Manager shall coordinate with Owner's
accountants and cooperate in the preparation of Owner's tax return
including, but not limited to, supplying necessary information for
preparation of such tax return. The tax return will be prepared by
Owner's accountants on a timely basis and the cost of preparation and
filing of the tax return will be borne by Owner. Owner's accountant
shall prepare, where applicable, Federal, state and local income and
net worth tax returns only.
(b) As requested by Owner, Property Manager shall
complete all tax related surveys and questionnaires which Owner may
reasonably require.
(ix) Schedule of Unpaid Commitments/Liabilities. In regard
to Capital Expenditures, Property Manager shall prepare a monthly listing of
all such Capital Expenditures which are obligations of Owner, but remain
unpaid and unrecorded. This schedule should include commitments through the
annual fiscal period of each year. This schedule should be updated on a
quarterly basis for commitments extending through the subsequent two year
period.
(x) Credit Feasibility. As requested by the Owner, Property
Manager may be required to provide and update a report summarizing the credit
worthiness of existing tenants at the Property and prospective tenants prior
to lease execution.
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(xi) Certification. All monthly and annual reports shall be
certified by a Senior Officer of Property Manager.
(E) Making Contracts for the Property. (i) Property Manager, as
agent for Owner, shall arrange for contracts (payable at Owner's sole cost and
expense) for fuel, oil, vermin extermination, janitorial service, trash
removal, snow removal, water, electricity, gas, other utilities and other
necessary building services (each, a "Contract") as shall be consistent with
the Operating Standard and the Business Plan. Property Manager shall also be
authorized on behalf of Owner to place orders in Property Manager's or Owner's
name for such equipment, tools, appliances, materials and supplies ("Personal
Property") as are necessary to maintain the Property in a manner consistent
with the Operating Standard and the Business Plan and Owner shall retain title
to all Personal Property. Each Contract and purchase of Personal Property
shall be executed, at Owner's option, either by Owner or by Property Manager
as agent for Owner. For all Contracts entered into after the date hereof,
Property Manager shall use commercially reasonable efforts in good faith to
include in each Contract the following: (i) a provision making the Contract
terminable upon thirty (30) days notice from Owner, (ii) a provision making
the Contract terminable without a termination fee, premium or penalty in the
event that the Property is sold or the Property is foreclosed or transferred
by deed in lieu of foreclosure, (iii) a provision limiting the liability of
Owner thereunder to the Property, (and shall not enter into Contracts that do
not contain such a limitation of liability without the prior approval of
Owner), and (iv) a clause whereby the service provider agrees to indemnify,
defend and hold Owner and its partners, shareholders, members or other
beneficial owners (and their respective legal and beneficial owners,
shareholders, partners, members, officers, managers, directors, agents,
employees, subsidiaries, and affiliates) harmless from and against all claims,
actions, suits, proceedings, losses, damages, liabilities, costs and expenses
(including without limitation, reasonable attorneys' fees and disbursements)
arising out of, resulting from or in connection with the acts or omissions of
the service provider and its directors, officers, employees, contractors,
subcontractors and agents, which constitute negligence, fraud, breach of the
service agreement, breach of fiduciary duty, willful, reckless or criminal
misconduct or any actions of the service provider beyond the scope of
authority conferred upon the service provider pursuant to the terms of the
Contract. All Contracts and purchases of Personal Property made with any
Affiliate of Property Manager shall be approved by Owner in advance and shall
be on fair market terms and for goods and services of a quality offered in
other first-class office buildings in Manhattan. All Contracts or purchases of
Personal Property amounting to $50,000 or more shall be in writing and shall
be submitted to Owner for its approval. In making any Contract or purchase of
Personal Property hereunder, Property Manager shall use commercially
reasonable efforts in good faith to obtain and make use of favorable discounts
for Owner and all such discounts, rebates or commissions under any Contract or
purchase order made hereunder shall inure to the benefit of Owner.
(ii) Property Manager shall be responsible for providing
construction management services ("CM Services") for all tenant improvement
and capital improvement projects at the Property (each particular tenant
improvement or capital improvement project is a "Construction Project"), not
including work performed by a tenant (as opposed to by or on behalf of Owner.
Owner hereby authorizes Property Manager to utilize an Affiliate of Property
Manager ("CM") to provide CM Services for Construction Projects. With
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respect to each Construction Project, (i) CM shall be paid the CM Fee in
consideration of its performance of the CM Services concerning such
Construction Project, and (ii) Owner (or Property Manager on behalf of Owner)
shall either pay directly or reimburse CM for all out-of-pocket third party
costs incurred in connection with such Construction Project but only to the
extent that such costs, if paid by Property Manager, would not violate the
provisions of (III)(B)(ii). Nothing herein contained shall prevent Property
Manager from hiring, on Owner's behalf and at Owner's expense, Reckson
Construction Group or another Affiliate of the Property Manager to provide
services in connection with a Construction Project (which shall not be
duplicative of CM Services) for an additional fee, provided the same is
contained in the Business Plan or is otherwise approved by Owner.
(F) Maintaining the Property. Property Manager shall maintain
the grounds, buildings and other improvements at the Property in a manner
consistent with the Operating Standard, subject to limitations set forth in
Section III(B) and the Business Plan.
(G) Maintaining Insurance. (i) Property Manager shall place any
and all insurance coverage contemplated in this Section III(G) and the
Business Plan with such companies, in such amounts, and with such beneficial
interest appearing therein as shall be authorized by Owner, which such
insurance coverage shall otherwise be in conformity with Legal Requirements
(as hereinafter defined), Applicable Loans, Leases and other contractual
obligations of Owner with respect thereto. Any modifications to the existing
insurance program shall require Owner's consent.
(ii) Property Manager's Insurance. Property Manager will
maintain in full force and effect at the expense of Property Manager,
insurance policies with respect to the employees of Property Manager
satisfactory to Owner issued by insurance companies which have an A.M. Best
General Policyholder's Service rating of not less than "A-VIII" which are
licensed in the state in which the Property is located and which are otherwise
satisfactory to Owner. Such policies shall provide the following coverage:
(1) Worker's compensation and employer's liability insurance
subject to the statutory limits of the state in which the Property is
located, provided that Property Manager shall be reimbursed by Owner
for the costs of such coverage to the extent provided for in the
Business Plan;
(2) Comprehensive crime coverage (including fidelity, forgery,
alteration and counterfeiting and computer crime) in an amount not
less than $2,000,000 per each occurrence;
(3) Commercial general and umbrella liability insurance,
written on an occurrence basis, in an amount not less than
$10,000,000; and
(4) Professional liability insurance with an annual limit not
less than $5,000,000 per occurrence and in the aggregate with an
extended period of indemnity. Such insurance policy shall survive the
term of this Agreement for a minimum two (2) year period following the
termination of this Agreement.
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Property Manager shall also obtain all insurance coverages applicable
to it necessary to satisfy the requirements of any Applicable Loan.
Notwithstanding the foregoing, Property Manager shall not be required
to maintain the stated amounts of, or the types of, insurance coverage
required of Property Manager hereunder if such deviation shall have been
approved by Owner, such approval not to be unreasonably withheld, conditioned
or delayed.
(iii) Blanket Insurance. Property Manager may effect any
coverage required under this Section III(G) under a blanket insurance policy
reasonably satisfactory to Owner.
(iv) Policies. The insurance maintained under Section
III(G)(i) shall name Owner as the insured and Property Manager as an
additional insured and Property Manager shall cause itself to be named as an
insured with respect to the insurance (or bond, as the case may be) maintained
under Sections 1II(G)(ii) (2), (3) and (4). The insurance under such Sections
III(G)(ii)(2), (3) and (4) shall also name Owner, Property Manager and such
persons as Owner may specify, from time to time, as additional insureds, to
the extent any such party is not already named as an insured party, or
beneficiary, as the case may be, as their interests might appear, and the
insurance maintained under Section 111 (G)(ii)(2) shall name Owner as a loss
payee. All insurance maintained hereunder shall provide that (i) no
cancellation, material change or reduction thereof shall be effective until at
least 60 days after receipt by Owner and Property Manager of written notice
thereof (or 10 days in the case of non-payment of the premium); and (ii) all
losses shall be payable to Owner notwithstanding any act or negligence of
Owner, Property Manager or any tenant or their partners, directors, officers,
employees or agents which might, absent such agreement, result in a forfeiture
of all or part of such insurance payment and notwithstanding (a) the
occupation or use of the Property for purposes more hazardous than permitted
by the terms of such policy, or (b) any foreclosure or other action or
proceeding taken pursuant to the provision of any mortgage with respect to the
Property or (c) any change in title or ownership of the Property.
(v) Copies of Policies or Certificates. Property Manager
shall furnish to Owner, without notice or demand, not later than 15 days prior
to the expiration date of each policy required to be maintained hereunder,
evidence satisfactory to Owner of the renewal thereof, and evidence
satisfactory to Owner of payment of the premiums therefor. Upon Owner's
request, Property Manager shall deliver a copy of each policy certified to be
a true copy by the insurer or insurance broker with respect to each policy.
(vi) Payment of Premiums by Owner. If Property Manager fails
to maintain the insurance required to be maintained under this Section 111 (G)
or fails to deliver evidence of insurance, Owner may, but shall not be
obligated to, obtain such insurance and pay the premiums therefor and in the
case of the insurance described in Section 111 (G)(ii) or the duplication of
any other insurance described in Section III (G), Property Manager shall, on
demand, reimburse Owner for all sums advanced and expenses incurred in
connection therewith.
(vii) For the avoidance of doubt, it is not the intent that
duplicate insurance polices be maintained, and therefore, notwithstanding
anything to the contrary
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contained in items (i) through (vi) above, Property Manager shall not be
required to maintain the insurance coverages described therein if, to the
extent and for so long as, pursuant to any other agreement entered into by an
Affiliate of Property Manager in respect of the Property, such Affiliate shall
have procured such insurance.
(viii) Subrogation. Owner and Property Manager hereby waive
any and all rights of recovery, claim, action or cause of action against the
other, its agents, employees, officers, partners, servants or shareholders for
any loss or damage to the other's property by reason of fire, the elements, or
any other cause which is covered by standard "all risks" property insurance
(including comprehensive boiler and machinery coverage) regardless of cause or
origin, including negligence of the other party hereto, its agents, employees,
officers, partners, servants or shareholders. Each party's property insurance
policies shall contain provisions in which the insurer waives its right of
subrogation against such other party.
(ix) Property Manager shall notify Owner of any material
fire or any other material damage to the Property promptly following such
casualty. Subject to Owner's consent, except in the case of an emergency, in
the event of any personal injury or property damage occurring to or claimed by
any tenant or third party on or with respect to the Property, Property Manager
shall take such actions as are prudent and consistent with the Operating
Standard, subject to the limitations set forth in Section EI(B). Property
Manager shall not settle any claims against insurance carriers for damages to
the Property or personal injury without the prior written consent of Owner in
each instance.
(H) Real Estate Taxes. Property Manager shall monitor the real
estate tax assessments of the Property and the reasonableness thereof in
comparison to the assessment of similar properties, consult with, and make
recommendations to, Owner concerning the real estate tax assessments of the
Property and, at the expense of Owner, take such action thereto as Owner may
direct.
(I) Employing Personnel. Property Manager shall interview,
investigate, hire, pay, supervise, discipline and discharge the personnel
necessary to be employed in or on the Property in order to manage, maintain
and operate the Property in accordance with the Operating Standard and the
Business Plan. Property Manager shall comply with all Legal Requirements
governing the employment of such personnel, including without limitation laws
regarding employment and withholding taxes, workers compensation insurance,
employee benefits and employment discrimination. Property Manager shall not
discriminate against any employee or applicant for employment because of race,
color, religion, national origin, ancestry, physical handicap, age or sex; and
all employment advertising shall indicate that Property Manager is an equal
opportunity employer. Such personnel shall in every instance be employees of
Property Manager and not of Owner. Property Manager represents and warrants
that while this Agreement remains in effect, it shall be licensed to carry out
its obligations under this Agreement to the extent required by Legal
Requirements, except to the extent the failure to maintain such license does
not have a material adverse effect on the performance of Property Manager's
material obligations under this Agreement.
(J) Employing Counsel and Other Professionals. Property Manager
may, on Owner's behalf and at Owner's expense, employ approved counsel and
other professionals in connection with negotiating, amending and renewing
Leases consistent with the
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Operating Standard and the Business Plan and as otherwise may be required to
perform Property Manager's obligations under this Agreement.
(K) Services with Respect to Applicable Loans. (i) Property
Manager shall, at the expense of Owner (i) use commercially reasonable efforts
to operate the Property in such a manner as to comply with the terms and
provisions of any Applicable Loan, and (ii) pay on behalf of Owner those
amounts required to be paid by Owner under any such Applicable Loan.
(ii) Property Manager shall deliver to the Owner promptly
upon the receipt or sending thereof copies of all notices, reports and other
communications between Property Manager and the holder of any Applicable Loan
which relate to any existing or pending default thereunder or to any material
financial or operational information required by such holder.
(iii) Without the consent of Owner, Property Manager shall
not modify, or in any way alter, the provisions of any Applicable Loan.
(iv) If applicable, Property Manager shall prepare all
information, schedules and reports necessary to calculate and/or support the
covenants relating to the operating results of the Property in any Applicable
Loan. This shall include, but not be limited to, preparing rent rolls, copies
of tenant leases, historic income and expense data and net operating income
calculations for the Applicable Loan, and providing debt covenant compliance
information. Owner shall provide Property Manager with the information
necessary to prepare such information, schedules and reports to the extent not
in Property Manager's possession. If such information, schedule and reports
are required to be audited, the cost of the audit shall be an expense of
Owner.
(L) Miscellaneous. (i) Records. Property Manager shall maintain
full and complete records, books, and accounts (including equipment
guarantees, warranties and construction plans) relating to the Property in a
manner consistent with the Operating Standard. Owner shall have the right (at
its sole expense) to inspect and audit or have audited by independent third
party auditors such records and statements required by this Agreement at
reasonable hours during the term of this Agreement and at any time during the
term of this Agreement and within thirty (30) days after its termination to
make and take copies of all bank statements, check registers, canceled checks
and invoices, bills and supporting data related to the Property.
(ii) Tenant Complaints. Consistent with the Operating
Standard, Property Manager shall maintain businesslike relations with tenants
and shall maintain and, if requested, provide to Owner in a timely manner,
records setting forth tenants' service requests and complaints received and
Property Manager's action taken to resolve the same.
(iii) Inspections. As part of a continuing program to
secure full performance by tenants of all maintenance and other obligations
for which they are responsible, Property Manager shall make regular
inspections of the Property, including all rentable and common areas, and, in
addition, shall make such other inspections as may be consistent with the
Operating Standard.
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(iv) Personnel Returns Required by Law. Property Manager
shall prepare, execute and file punctually when due (after giving effect to
permitted extensions) all fauns, tax returns and other reports required by law
relating to the employment of personnel. Property Manager shall promptly and
timely pay all taxes and other payments required in connection therewith.
(v) Compliance with Legal Requirements; Contracts.
Subject to the limitations set forth in Section III(B) of this Agreement and
to the extent the same is materially consistent with the Operating Standard,
Property Manager shall take such necessary action to comply with any and all
governmental constitutions, statutes, regulations, codes, orders or other
requirements affecting the Property from time to time in effect or enacted by
any federal, state, county, municipal or other authority having jurisdiction
thereover, and to comply with all requirements or orders of the Board of Fire
Underwriters or other similar bodies and with all contracts and other
agreements affecting the Property (collectively and individually, "Legal
Requirements"). Property Manager, however, shall not take any such action so
long as Property Manager (with Owner's consent) or Owner is contesting or
either party has affirmed to the other its intention to contest (and promptly
institutes proceedings contesting) any such Legal Requirement, except that if
failure to comply promptly with any such Legal Requirement would or might
expose Property Manager or Owner to criminal liability, Property Manager shall
cause the same to be complied with, with or without Owner's approval.
Property Manager, promptly following receipt of notice of any
significant violation of any Legal Requirement, shall give written notice of
same to Owner and shall deliver to Owner copies thereof. Property Manager
shall manage the Property in accordance with, and to comply with, the terms
and conditions of Sections 7.10, 7.11 and 7.15 of the Operating Agreement.
(vi) Consultation, Meetings. Property Manager shall
consult with Owner at Owner's reasonable request and to the extent reasonably
necessary or appropriate to enable Property Manager to perform its duties
hereunder. Property Manager shall conduct meetings between Owner and Property
Manager from time to time as reasonably necessary or appropriate to enable
Property Manager to perform its duties hereunder or as requested by Owner.
Owner and Property Manager shall each cooperate fully in all reasonable
respects (at Owner's expense) with the other in the defense of any claim,
action or proceeding relating to the management and/or operation of the
Property.
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(M) Renting the Property. Property Manager shall use commercially
reasonable efforts consistent with the Operating Standard, the Business Plan
and the Leasing Guidelines to lease vacant space at the Property to desirable
tenants, and in connection therewith shall consult Owner with respect to
rental and renewal of occupancy space to desirable tenants and cooperate with
licensed real estate brokers having clients interested in renting space in the
Property. The form, content and terms of all Leases and the acceptability of
all tenants shall be subject to approval of the Owner and all Leases shall be
in Owner's name and executed by Owner unless Owner expressly in writing
requests Property Manager, as Owner's property manager, to execute a Lease.
Property Manager shall not, without consent of Owner, permit any person to
occupy any space in the Property without a written lease approved by Owner. In
connection with the leasing of the Property:
(i) Enlisting Cooperating Brokers. Property Manager is
hereby authorized on behalf of Owner and at Owner's expense to (x) enter into
an exclusive agency agreement, the form and substance of which shall be
subject to the prior approval of Owner, pursuant to which an independent,
unaffiliated third party broker ("Exclusive Broker") will be retained by
Property Manager on behalf of Owner to act as Owner's representative and
exclusive agent to lease all or a portion of the Property or (y) cooperate
with, or permit an Exclusive Broker to cooperate with, third-party real estate
brokers representing tenants ("Co-Brokers") and to pay such Exclusive Broker
and Co-Brokers a leasing commission as determined by the then current market
rates. The parties acknowledge that the current standard commission payable to
Property Manager (the "Standard Commission") is set forth on Exhibit F. In the
event that Owner or Property Manager shall determine that a change should be
made to the Standard Commission due to a change in market rates, such party
shall notify the other of such determination (each such notice, a "Commission
Change Notice") and the receiving party shall, within 15 days of its receipt
of the Commission Change Notice, approve or disapprove of such proposed change
to the Standard Commission. If such proposed change is approved, then the
Standard Commission shall be changed accordingly with respect to all Leases,
amendments, expansions or renewals executed subsequent to such change, except
for those which are done in accordance with option terms in a then existing
Lease, in which case the Standard Commission in effect at the time of the
original execution of such Lease shall apply. Notwithstanding the foregoing,
the Standard Commission shall not be changed (a) earlier than the date three
(3) years after the date hereof and (b) thereafter, earlier than the third
anniversary of the most recent change in the Standard Commission.
(ii) Advertising the Property. Property Manager shall
advertise the Property or portions thereof, prepare and secure advertising
signs, publish and distribute brochures, and advertise in periodicals and
other forms of advertising in accordance with the Operating Standard and the
Business Plan.
(iii) Referrals; Negotiating. Owner shall refer to
Property Manager all inquiries for any rental of space or for renewals of
Leases; and, except as hereinafter set forth, all negotiations connected
therewith shall be conducted solely by or under the direction of Property
Manager. Property Manager shall make such investigation of prospective tenants
as shall be consistent with the Operating Standard. Owner hereby acknowledges
that Property Manager manages and acts as leasing agent for, and Affiliates of
Property Manager own (directly or indirectly), other properties in the New
York City metropolitan area (each such property, an
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"Other Reckson Property") which may be competitive with the Property and that
the continuation of such management, leasing or ownership shall not serve as
the basis of any claim against, or result in any liability to, Property
Manager or its Affiliates. Notwithstanding the foregoing sentence, (x)
Property Manager shall notify the Investor Report Recipient in the Monthly
Report delivered to Owner pursuant to Section lll(D)(iii), if to the actual
knowledge of Property Manager any tenant at the Property leases space at an
Other Reckson Property and (y) Property Manager shall not unfairly allocate
leasing opportunities to Other Reckson Properties (i) which are appropriate
for the Property, (ii) if the Property can satisfy all of the prospective
tenant's specific leasing requirements and (iii) which (if consummated) would
comply with the Business Plan. As used herein, the phrase "actual knowledge of
Property Manager" shall mean the actual knowledge
of _____________, __________________________________________
and _______________________________, or any other individual who succeeds to
their duties at the Property Manager.
IV. Compensation. The compensation of Property Manager for the
performance of its obligations under this Agreement shall be as follows:
(A) Management Fee. Property Manager shall be compensated for
its services under this Agreement in an amount equal to 2% of Gross
Collections (hereinafter defined) collected by Property Manager in the current
calendar month as set forth in the Monthly Report (the "Management Fee").
Property Manager shall include in the Monthly Report the calculation used in
determining the Management Fee. The Management Fee for each month shall be
accrued as of last day of such month. Property Manager is authorized to pay
itself the Management Fee at any time subsequent to the date that the
Management Fee is accrued and the Monthly Report has been delivered to Owner.
(B) Leasing Commissions. For Property Manager's services under
this Agreement, Owner shall pay to Property Manager a leasing commission
("Leasing Commission") in the following manner:
(i) Existing Leases. Property Manager shall not be
entitled to a Leasing Commission with respect to the current term of any Lease
executed by Owner prior to the date hereof (each, an "Existing Lease"),
whether or not the terms of such Existing Lease have commenced or the tenants
under such Lease have commenced to occupy the space; provided, that, subject
to the limitations set forth in subparagraph (v) below, Property Manager shall
receive a Leasing Commission in connection with (a) any renewal of any
Existing Lease (as further provided in this subparagraph), (b) the expansion
of the space presently covered by such Existing Lease (as further provided in
this subparagraph), or (c) an amendment of an Existing Lease that results in
additional income to Owner. If at any time during the term of this Agreement,
the term of a Lease is renewed or extended pursuant to any option(s) or
right(s) contained in the Lease, then, in such event, Owner shall pay a
Leasing Commission to Property Manager based on the aggregate Base Rent for
the renewal or extension terms(s) and computed at the rates set forth in
Exhibit F, except that the additional commission(s) shall be calculated at the
percentage rate level that would have applied if the renewal or extension
period were a part of the initial term of the Lease. If at any time during the
term of this Agreement (i) the term of a Lease is renewed or extended not
pursuant to any option(s) or right(s) contained in the Lease; or (ii) a tenant
leases other or additional space(s) from Owner; then, in such event, Owner
shall pay a Leasing Commission to Property Manager based on the aggregate Base
Rent for the renewal or
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extension terms(s) or for such other or additional space(s) and computed at
the rates set forth in Exhibit F as if such renewal or extension were a new
Lease for the space affected thereby.
(ii) Space Occupied by Owner and by Agent. Property Manager
shall not be entitled to a Leasing Commission on account of any space in the
Property leased to or occupied by Owner, by Property Manager, or by any
Affiliate of Owner or Property Manager, where such leased or occupied space is
used primarily for the management and operation of the Property.
(iii) New Leases and Expansions. In connection with (a) all
new Leases (and the renewals of such new Leases or the expansion of the
premises demised pursuant to such new Leases during the term of this
Agreement) and (b) those instances set forth in paragraph (i) above where
Property Manager shall be entitled to a Leasing Commission, Property Manager
shall receive the following as a Leasing Commission: (1) if a Co-Broker is
entitled to a leasing commission, Property Manager shall be entitled to a
Leasing Commission in an amount equal to 50% of the Standard Commission or (2)
if no Co-Broker is involved in the transaction, Property Manager shall be
entitled to a Leasing Commission equal to 100% of the Standard Commission.
Notwithstanding anything to the contrary contained herein, Property Manager
shall not be entitled to a Leasing Commission hereunder in respect of any
Lease for which an Exclusive Broker was retained, except to the extent that
the amount to be paid to the Exclusive Broker in respect of such Lease is less
than the amount which would have been paid to Property Manager hereunder if no
Exclusive Broker had been involved in which event Property Manager shall be
entitled to the differential.
(iv) Payment of Leasing Commissions. Leasing Commissions
shall be due and payable to Property Manager as follows: (1) with respect to a
new Lease, Lease amendment, Lease expansion or Lease renewal (other than to
evidence the exercise of a Lease expansion or renewal option, which shall be
governed by clause (2) of this sentence), 50% upon the execution and delivery
of a final Lease (or Lease amendment) by Owner and tenant and 50% upon the
taking of occupancy and the commencement of rent payments and (2) with respect
to a Lease expansion option or Lease renewal option, the date such tenant
exercises its option; provided, however, that if the tenant defaults prior to
paying the first month's rent with respect to the expansion space (in the case
of a Lease expansion option) or the first month's rent with respect to the
renewal period (in the case of a Lease renewal option), (as the case may be)
and the Lease is terminated on account thereof, Property Manager shall refund
the Leasing Commission paid with respect to such Lease expansion option or
Lease renewal option. If a tenant has an option to terminate its Lease
(exclusive of an option contingent on a casualty, condemnation, landlord
default or the like), with or without a termination fee, prior to the
expiration of the term thereof, then in no event shall Property Manager be
entitled to that portion of the Leasing Commission attributable to the part of
the term of such lease taking place after the effective date of such possible
termination until the later to occur of the dates determined in accordance
with the first sentence of this Section IV(B)(iv) and the date that such
tenant either waives its right to terminate the Lease or the option to
terminate expires.
(v) Commission After Termination. Property Manager shall not
be entitled to a Leasing Commission respecting (a) a Lease or (b) any renewal
or expansion by a tenant, in each case occurring after termination of this
Agreement. Notwithstanding the foregoing, Property Manager shall be entitled
to a Leasing Commission for (x) any Leasing
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Commission accruing through the date of the termination of this Agreement
which was not yet payable as of the date of the termination and (y) all
Prospective Tenants (as hereinafter defined) with whom Property Manager was in
negotiation at the time of the giving or receipt of such notice of
termination, further provided that within 15 days following notice of
termination of this Agreement, Property Manager shall register with Owner in
writing a list of all such Prospective Tenants and setting forth with respect
to each such Prospective Tenant, the tenant's name and address, and the
space(s) in the Property for which negotiations were then in progress, and
further provided that, within a period of 180 days after the effective date of
termination, a Lease with such Prospective Tenant was actually entered into.
In no event, however, shall a Leasing Commission be payable to Property
Manager in connection with a subsequent Lease amendment, Lease expansion or
Lease renewal with a Prospective Tenant. As used herein the term "Prospective
Tenants" shall mean (i) prospective new tenants who submitted a written offer
to lease, or solicited and received from Property Manager a written leasing
proposal with respect to, space at the Property and (ii) existing tenants with
whom Property Manager was negotiating for renewal of their Leases and/or
expansion of their premises. The provisions of this Article (IV) shall survive
the termination of this Agreement.
V. Bank Account. Owner shall have established or shall establish a
bank account (the "Bank Account") into which all funds collected by Property
Manager for the benefit of Owner under this Agreement shall, without
exception, be deposited promptly by Property Manager. The Bank Account shall
be in Owner's name, and Property Manager and Owner shall be authorized to
deposit and withdraw moneys from the Bank Account in accordance with this
Agreement. Owner and Property Manager shall maintain in the Bank Account the
Property Level Reserves to permit the proper and timely performance by
Property Manager of its obligations under this Agreement and to maintain the
Operating Standard, taking into account anticipated future revenues and
expenses. To the extent required by Legal Requirements, Applicable Loans or
Leases, Property Manager shall deposit any security deposits received by
Property Manager in a separate bank account in the name of, and for the
benefit of, Owner to be administered and applied by Property Manager on behalf
of Owner in accordance with the above. Property Manager, on behalf of Owner,
shall pay all amounts payable under this Agreement from the Bank Account.
VI. Hold Harmless
(A) Owner agrees to (i) indemnify and hold and save Property
Manager free and harmless from any damages or injuries to persons or property
by reason of any cause whatsoever either in and about the Property or
elsewhere when Property Manager is carrying out the provisions of this
Agreement or acting under the express or implied directions of Owner; (ii)
reimburse Property Manager upon demand for any monies which Property Manager
is required to pay out for any reason whatsoever, either in connection with,
or as an expense in defense of, any claim, civil or criminal action,
proceeding, charge or prosecution made, instituted or maintained against
Property Manager, or Owner and Property Manager jointly or severally,
affecting or due to the condition or use of the Property, or acts or omissions
of employees of Owner, or arising out of or based upon any law, regulation,
discriminatory practices (sexual or harassment), requirement, contract or
award relating to the hours of employment, working conditions, wages and/or
compensation of employees or former employees of Owner, or otherwise in
connection with the ownership, operation, leasing, maintenance or status of
the Property or the performance by Property Manager of its duties under this
Agreement; and (iii) defend promptly and
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diligently, at Owner's sole expense, any claim, action or proceeding brought
against Property Manager, or Property Manager and Owner jointly or severally,
arising out of or connected with any of the foregoing, and to hold harmless
and fully indemnify Property Manager from any judgment, loss or settlement on
account thereof; provided, however that Owner shall have no obligation under
(i)-(iii) hereof with respect to any matter for which it is finally determined
that Property Manager is obligated to indemnify Owner under (B) below,
although pending such a determination Owner shall advance the cost of defense
subject to a right to recoup the same upon final determination that Property
Manager is not entitled to indemnification hereunder.
(B) Property Manager shall indemnify and hold Owner, its members
and their respective stockholders, partners, members, directors and officers
harmless from and against any and all expenses (including reasonable
attorney's fees), claims, damages, losses, actions, suits, proceedings and
liabilities caused or occasioned by or arising out of the acts or omissions of
the Property Manager or its officers (but only if such officers are acting in
connection with their employment) which constitute a material breach of this
Agreement, fraud, gross negligence, or willful misconduct of Property Manager,
or actions which Property Manager did not in good faith believe to be within
the scope of the authority conferred upon Property Manager hereunder.
VII. Termination
(A) During the term of this Agreement, including any renewal
term, Investor on behalf of Owner may terminate this Agreement upon at least
ten (10) Business Days' prior written notice to Property Manager if a Reckson
Member is removed as Administrative Member pursuant to Section 7.03(b) of the
Operating Agreement or otherwise voluntarily ceases to be Administrative
Member.
(B) In the event of (x) a sale (including a sale by
foreclosure or deed in lieu of foreclosure) or other disposition of the
Property or all or substantially all of the LLC Assets, or (y) any other event
set forth in Section 11.01 of the Operating Agreement, this Agreement shall
automatically terminate.
(C) If any one or more of the following events (each, an
"Event of Default") shall occur and be continuing:
(i) if it is finally determined by a court or forum of
competent jurisdiction that Property Manager (at the direction of a
Senior Officer) or any of its Senior Officers committed an act which
constitutes fraud, embezzlement or theft with respect to the Property
(in each case);
(ii) if it is finally determined by a court or forum of
competent jurisdiction that an act which constitutes fraud,
embezzlement or theft with respect to the Property (in each case) is
committed by Property Manager or by any employee of the Property
Manager who is either employed at Property Manager's central office or
are the building manager, assistant building manager or their
administrative staffs and Owner is not compensated for any uninsured
losses (including deductibles) it may have sustained as a result of
such act within ten (10) business days after notice from Owner,
provided
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that in the event that Property Manager disputes the existence or
amount of such loss and such dispute is submitted to arbitration
pursuant to Section XVII herein within such ten (10) business day
period, such ten (10) business day period shall commence on the date
such arbitration has been finally determined;
(iii) if Property Manager shall fail to comply with any
provision of this Agreement (other than those described in Section
VII(C)(i), (ii) or (iv)) and such default shall continue for thirty
(30) days after notice of such default is given by Owner to Property
Manager; or (2), if such default cannot reasonably be cured within
such thirty (30) day period, if Property Manager shall fail promptly
to commence within such thirty (30) day period and thereafter
diligently prosecute the curing of such default and, if there is a
material adverse effect on Owner or the Property by reason of Property
Manager's failure to comply with such provision of this Agreement,
complete the same within ninety (90) days after notice; provided that
in the event that Property Manager disputes the existence of such
default and such dispute is submitted to arbitration pursuant to
Section XVII herein within the time periods described in clauses (1)
and (2) above, such time periods shall be tolled until such
arbitration has been finally determined; or
(iv) if Property Manager shall become Bankrupt (as
defined in the Operating Agreement);
then, at any time during the continuance of such Event of
Default, Owner shall have the right to terminate this Agreement by notice to
Property Manager and to exercise any and all other rights and remedies
available under this Agreement and at law or in equity.
(D) Property Manager may terminate this Agreement at any time
upon 45 days' prior written notice, which notice shall specify the effective
date of termination.
(E) Upon termination:
(i) Property Manager shall have the right to remove from
the Property, without compensation to Owner, any computer equipment and any
proprietary software owned by Property Manager; and
(ii) any signage indicating the management of the
Property must be removed by Property Manager from the Property.
(F) Notwithstanding the termination of this Agreement under this
Section VII, Owner and Property Manager shall be liable for and shall be
obligated to perform their respective duties or obligations under this
Agreement up to and including the effective date of termination and Property
Manager shall be entitled to compensation in accordance with this Agreement
accruing through the date of termination, as well as any compensation which
may be owed to Property Manager after the termination of this Agreement
pursuant to this Agreement. Upon any such termination, Property Manager shall
forthwith (i) deliver to Owner, when received, any funds due Owner under this
Agreement but received after such termination, (ii) deliver to
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Owner all materials and supplies, and keys, Leases, contracts and documents,
and such other accounting, paper, correspondence, files and records pertaining
to the Property or to this Agreement, (iii) assign to Owner, or to anyone
designated by Owner without recourse, representation or warranty, any then
existing Contracts as Owner shall require, (iv) furnish to Owner, or to anyone
designated by Owner, all such information, and take all such action as Owner
shall require in order to effectuate a professional, orderly and systematic
ending of Property Manager's duties and activities hereunder. Within twenty
(20) days after the effective date of any such termination, Property Manager
shall deliver to Owner a Monthly Report for the period since the last Monthly
Report, and within ninety (90) days after the effective date of any such
termination, Property Manager shall deliver to Owner the Annual Report for the
Fiscal Year or portion thereof ending on the effective date of termination.
VIII. Notices. All notices required or permitted by any party under
this Agreement to be in writing shall be in writing, and served upon any party
by (A) personal delivery, (B) United States mail, postage prepaid, by
registered or certified mail, return receipt requested, (C) telecopier with
confirmation of receipt, with a copy of such notice by overnight courier sent
on the same day in accordance with (D) below, or (D) overnight courier, in
each instance addressed to the respective parties at their respective
addresses as set forth below:
To Property Manager:
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
---------------------------------------------
---------------------------------------------
---------------------------------------------
Attention:
-----------------------------
Telephone:
-----------------------------
Telecopier:
-----------------------------
-28-
and
---------------------------------------------
---------------------------------------------
---------------------------------------------
Attention:
-----------------------------
Telephone:
-----------------------------
Telecopier:
-----------------------------
To Owner:
c/o Reckson Associates
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
c/o Reckson Associates
1350 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇ Investment Management Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
NAPI REIT, Inc.
c/o Prudential Property Investment Managers Limited
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇/▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ WCIV 7NE
United Kingdom
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone:
-------------------------
Telecopier: 011-44-207-548-6662
Each notice, demand, request or communication which shall be mailed,
delivered or transmitted in the manner described above shall be deemed, given,
served or delivered at such time as it is received by the addressee upon
presentation or at such times as delivery is attempted in the case of any
change in address as to which notice was not given to the other party as
required hereunder or in the case of a refusal to accept delivery. Counsel for
each party may deliver notices on behalf of such party.
IX. No Joint Venture. Nothing herein shall be deemed or construed to
create any partnership, joint venture or other form of joint enterprise
between the parties hereto.
X. Agreement Not Assignable. This Agreement is personal in nature,
and neither party may, without the express prior written consent of the other
party, assign or transfer its rights hereunder, nor permit any assignee or
transferee to assume its obligations hereunder. Without intending to limit the
foregoing, each party is expressly prohibited from appointing sub-agents
without the express prior written consent of the other party. Notwithstanding
the foregoing, without Owner's consent, Property Manager may (A) assign its
rights under this Agreement and (B) transfer its ownership interests, so long
as in each case (i) Property Manager shall remain an Affiliate of the Reckson
Members (as such term is defined in the Operating Agreement) at all times
following the effective date of such assignment or transfer and (ii) with
respect to any assignment of this Agreement, (x) Property Manager shall have
given written notice thereof to Owner not less than ten (10) days prior to the
proposed effective date of such assignment, (y) Property Manager shall not be
released from any of its obligations under this Agreement accruing prior to
such assignment, and (z) Property Manager shall be released from any of the
obligations of Property Manager under this Agreement accruing after such
assignment.
-30-
XI. Entire Agreement and Binding Effect. This Agreement shall
constitute the entire agreement between the parties hereto and no modification
or amendment thereof shall be effective unless made by supplemental agreement
in writing, executed by both of the parties hereto. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto, and, to the
extent assignment does not violate the provisions of Section X hereof, upon
their respective successors and assigns.
XII. New York Law. This Agreement is made under and shall be governed
by the laws of the State of New York without giving effect to principles of
conflict of laws.
XIII. Attorneys' Fees. In the event of any action between Property
Manager and Owner seeking enforcement of any of the teens and conditions of
this Agreement, the prevailing party in such action shall be awarded, in
addition to damages, injunctive or other relief, its reasonable costs and
expenses, including reasonable attorneys' fees.
XIV. Authority. Subject to the limitations set forth in this
Agreement (including, without limitation, the terms and provisions of Article
XXI hereof), Property Manager may enter into and execute any agreement or
agreements (other than Leases, Lease amendments, renewals, modifications,
terminations or surrenders which shall be entered into and executed only by
Owner) and any other instruments or documents and take all actions consistent
with the Operating Standard and the Business Plan, for, and on, Owner's behalf
as shall be necessary to carry out the intent and purposes of this Agreement.
All actions taken by Property Manager on behalf of Owner shall be binding on
Owner and all third parties shall be entitled to rely on any document signed,
or actions taken, by Property Manager to be the action or obligation of Owner.
XV. Signage. Subject to Article XIX, Owner may cause Property Manager
to place at the Property signs, logos and other items identifying the
ownership of the Property.
XVI. Independent Contractor. Property Manager understands and agrees
that its relationship to Owner is that of independent contractor and that it
will not represent to anyone that its relationship to Owner is other than that
of independent contractor.
XVII. Arbitration
(A) Any dispute under this Agreement shall be finally settled by
arbitration in accordance with CPR Institute for Dispute Resolution Rules for
Non-Administered Arbitration (the "CPR"), except as modified herein. The place
of arbitration shall be New York, New York. Either Party may commence
arbitration by addressing to the other party a written notice of arbitration.
Within 5 days after receipt of the written notice of arbitration, the
respondent shall deliver to the claimant a written notice of defense. In the
event respondent does not deliver such a written notice, all claims set forth
in the demand shall be deemed denied.
(B) The arbitration shall be conducted by a sole arbitrator
jointly appointed by the parties within 10 days of receipt by the respondent
of the written notice of arbitration. If the parties have not jointly
appointed an arbitrator by that time, either party may request the CPR to
appoint the sole arbitrator, and the CPR shall endeavor to make the
appointment within 5 days of that request; provided, however, that its failure
to meet that deadline shall in no way impair the effectiveness of the
appointment. The CPR shall endeavor to appoint as arbitrator a person with
substantial experience in the real estate business, but the appointee's
qualifications or lack of qualifications in this respect shall under no
circumstances impair the effectiveness of the appointment or provide cause for
challenge. The CPR shall have
-31-
no obligation to follow the procedures set forth in Rule 6, but shall instead
appoint a person whom it deems qualified to serve.
(C) The arbitrator shall have authority to take all steps
necessary and appropriate in order to hold a hearing within 40 days of his or
her appointment and to render an award within 5 days thereafter. The
arbitrator shall have full discretion to set the procedure or modify the rules
governing the arbitration in any way he or she deems necessary in order to
meet those deadlines; provided, however, that failure to meet those deadlines
shall in no way affect the validity or effectiveness of the award.
(D) The arbitration and this clause shall be governed by Title 9
(Arbitration) of the United States Code, the decision of the arbitration shall
be final and judgment on the award may be entered by any court of competent
jurisdiction. The parties herewith consent to jurisdiction in the federal and
state courts located in the county of New York, New York, for the purpose of
enforcing the award.
(E) Each party is required to continue to perform its obligations
under this Agreement pending final resolution of any dispute arising out of
relating to this Agreement, unless to do so would be impossible or
impracticable under the circumstances.
XVIII. Severability. If any provision of this Agreement or the
application thereof to any person or circumstances shall be held invalid or
unenforceable, the other provisions of this Agreement or the application of
such provision to other persons or circumstances shall not be effected thereby
but shall continue to be valid and enforceable to the fullest extent permitted
under applicable law.
XIX. Confidentiality. Property Manager agrees not to disclose the
terms of this Agreement without the prior written consent of Owner, except (i)
pursuant to a subpoena or order issued by a court, arbitrator or governmental
body, agency or official, (ii) pursuant to any freedom of information laws, or
(iii) pursuant to any other governmental requirements. To avoid any ambiguity,
Property Manager, Investor and Owner recognize and agree that the Reckson
Members (as defined in the Operating Agreement) may be required to file a copy
of this Agreement with the Securities and Exchange Commission. In the event
that Property Manager shall receive a request to disclose any of the teii11s
of this Agreement under a subpoena or order, Property Manager shall (x)
promptly notify Owner in writing, (y) consult with Owner on the advisability
of taking steps to resist or narrow such request, and (z) if disclosure is
required or deemed advisable, reasonably cooperate with the Owner (at no cost
to Property Manager) in any attempt it may make to obtain an order or other
assurance that confidential treatment will be accorded those terms of this
Agreement that are disclosed.
XX. GACC Loan. The parties acknowledge that Owner and German American
Capital Corporation ("Lender") entered into a certain Loan and Security
Agreement (the "Loan Agreement"), dated as of August 3, 2005. Pursuant to
Section 3.1.9 of the Loan Agreement, (x) all Rents (as defined in the Loan
Agreement), other than Security Deposits, shall be placed into lender's
depository account (the "Depository Account") prior to being transferred into
the Bank Account. Accordingly, in the event Property Manager shall receive any
such Rents, other than Security Deposits, directly from a tenant or other
party, Property Manager shall, within 2 Business Days upon receipt thereof,
deposit the same into the Depository Account.
-32-
XXI. Major Decisions. Owner and Property Manager acknowledge that
they are familiar with the Operating Agreement. Notwithstanding anything to
the contrary contained herein, so long as Property Manager is an Affiliate of
the Administrative Member:
(A) The consent of Owner shall be deemed to be given with
respect to any matter or action to be taken by Property Manager which, under
the terms of this Agreement, requires the consent of Owner, unless such matter
or action is a Major Decision (as defined in the Operating Agreement) or
otherwise requires the consent of the Management Committee or Investor
pursuant to the Operating Agreement.
(B) Property Manager shall not, without the prior consent of
Owner, take any action that would constitute a Major Decision or which is
otherwise subject to the Management Committee's or Investor's approval under
the Operating Agreement, which consent must be evidenced by the written
consent of the Management Committee or Investor, as applicable.
(C) Anything contained in this Agreement and/or the Operating
Agreement to the contrary notwithstanding, Property Manager acknowledges and
agrees that (x) Investor's prior written approval shall be required for any
material change in the method, manner, form or content of any reporting
required hereunder, (y) Investor shall have the right, pursuant to Section
7.04(c) of the Operating Agreement, to enforce the obligations of Property
Manager under this Agreement and (z) Investor and its personnel and
accountants shall have all of the rights afforded to Owner and its personnel
and Auditor, to inspect, copy and/or audit the books, records, reports and
returns prepared and maintained by Property Manager pursuant to this
Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-33-
IN WITNESS WHEREOF, Owner and Property Manager have each caused
their duly authorized officers to execute this Agreement as of the day and
year first written above.
OWNER:
------
RECKSON COURT SQUARE, LLC, a Delaware
limited liability company
By: One Court Square Holdings LLC, a Delaware
limited liability company, its sole member
By: One Court Square Member LLC, a
Delaware limited liability company,
its administrative member
By: Reckson Operating Partnership, L.P.,
a Delaware limited partnership,
its sole member
By: Reckson Associates Realty Corp.,
a Maryland corporation, its
general partner
By:
----------------------------------
Name:
Title:
PROPERTY MANAGER
----------------
RANY MANAGEMENT GROUP, INC.
By:
--------------------------------------------------
Name:
Title:
-34-
Investor Acknowledgement
------------------------
Investor hereby acknowledges that it has received a
copy of and is aware of all of the provisions of this
Agreement.
ONE COURT SQUARE INVESTOR, LLC, a Delaware
limited liability company
By: JPM I&G Domestic JV 13, LLC, a Delaware
limited liability company
By: JPM I&G Domestic REIT, Inc.
By:
------------------------------------------
Name:
Title:
By: JPM I&G Direct JV 13, LLC, a Delaware
limited liability company
By: ▇.▇. ▇▇▇▇▇▇ U.S. Real Estate Income and Growth
Direct, LP, a Delaware limited partnership
By: I&G Manager, LLC, its general partner
By:
-------------------------------------
Name:
Title:
By: I&G Cayman Sub Corp JV 13, Inc., a Delaware
corporation
By:
---------------------------------------------
Name:
Title:
-35-
By: SSPF One Court Square Member, LLC, a Delaware
limited liability company
By: Commingled Pension Trust Fund (Special
Situation Property) of JPMorgan Chase
Bank, N.A.
By:
------------------------------------------
Name:
Title:
By: NAPI REIT, inc., a Maryland corporation
By:
---------------------------------------------
Name:
Title:
-36-
Exhibit A
Description of the Property
---------------------------
ALL THAT CERTAIN PLOT, PI FEE, OR PARCEL OF LAND, SITUATE, LYING, AND BEING IN
THE BOROUGH AND COUNTY OF QUEENS, CITY AND STATE OF NEW YORK, BOUNDED AND
DESCRIBED AS FOLLOWS:
BEGINNING AT THE CORNER FORMED BY THE INTERSECTION OF THE NORTHWESTERLY
SIDE OF ▇▇▇▇▇▇▇ AVENUE WITH THE WESTERLY SIDE OF COURT SQUARE;
RUNNING THENCE SOUTH 33 DEGREES 20 MINUTES 00 SECONDS WEST AND ALONG THE
NORTHWESTERLY SIDE OF ▇▇▇▇▇▇▇ AVENUE, 220.449 FEET TO THE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇;
THENCE SOUTH 75 DEGREES 17 MINUTES 05.2 SECONDS WEST AND ALONG THE NORTHERLY
SIDE OF 45TH AVENUE, 286.083 FEET;
THENCE NORTHERLY AT RIGHT ANGLES TO THE NORTHERLY SIDE OF 45TH AVENUE,
25.003 FEET;
THENCE WESTERLY PARALLEL WITH THE NORTHERLY SIDE OF 45TH AVENUE, 90.027 FEET
TO THE ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
THENCE NORTH 14 DEGREES 42 MINUTES 54.8 SECONDS WEST AND ALONG THE EASTERLY
SIDE OF 23RD STREET, 75.011 FEET;
THENCE EASTERLY AT RIGHT ANGLES TO THE EASTERLY SIDE OF 23RD STREET, 115.013
FEET;
THENCE NORTHERLY AT RIGHT ANGLES TO THE LAST MENTIONED COURSE, 100.015
FEET TO THE SOUTHERLY SIDE OF 44TH DRIVE;
THENCE NORTH 75 DEGREES 17 MINUTES 05.2 SECONDS EAST AND ALONG THE SOUTHERLY
SIDE OF 44TH DRIVE, 425.048 FEET TO THE CORNER FORMED BY THE INTERSECTION OF
THE SOUTHERLY SIDE OF 44TH DRIVE WITH THE WESTERLY SIDE OF COURT SQUARE;
RUNNING THENCE SOUTH 14 DEGREES 42 MINUTES 54.8 SECONDS EAST AND ALONG THE
WESTERLY SIDE OF COURT SQUARE 52.659 FEET TO THE CORNER FORMED BY THE
INTERSECTION OF THE NORTHWESTERLY SIDE OF ▇▇▇▇▇▇▇ AVENUE WITH THE WESTERLY
SIDE OF COURT SQUARE, THE POINT OR PLACE OF BEGINNING.
FOR INFORMATION ONLY: ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇
-▇-
▇▇▇▇▇▇▇ B
Intentionally Omitted
---------------------
Exhibit C
Sample Reporting Package
------------------------
Exhibit D
UBTI Questionnaire
------------------
------------------------------------------------------------------------------
Real Property Title-Holding Company
Compliance Questionnaire
------------------------------------------------------------------------------
TABLE OF CONTENTS
-------------------------------------------------------------------------------
--------
Section
1
--------
/ / General Information on Title-Holding Company (THC)..............1
--------
Section
2
--------
/ / General Information on Property..................................3
/ / Nature of Investment in Property.................................3
/ / Debt.............................................................4
--------
Section
3
--------
a. Office Building..............................................5
b. Retail.......................................................8
c. Industrial..................................................11
d. Residential.................................................14
e. Hotel.......................................................17
f. Land........................................................19
--------
Appendix
--------
/ / Real Property Title-Holding Tax Questionnaire Instructions......20
Section
1
------------------------------------------------------------------------------
General Information on Title-Holding Company (THC)
1. THC Name:
--------------------------------------------------------
2. Basis for federal tax-exemption: / / Section 501(c)(2) / / Section
501(c)(25)
3. State of Incorporation:
------------------------------------------
4. Does the THC engage in any activities other than acquiring real
property, holding title to such property, collecting income from
the property, and remitting income from the property to the
investors in the THC?
/ / YES / / NO If yes, please describe.
------------------------------------------------------------------
------------------------------------------------------------------
5. Does the THC have any income other than income from real property
{e.g. rents }? {See also questions below relating to facilities
and services}
/ / YES / / NO If yes, please describe.
------------------------------------------------------------------
------------------------------------------------------------------
6. Does THC pay over its net income to its owners?
/ / YES / / NO
7. Has the THC complied with all federal, state and local information
reporting requirements such as the sending of form's 1099 to
contractors and vendors with copies to the IRS?
/ / YES / / NO
8. Has the IRS or any state or local tax agency examined the THCs
compliance in the information reporting area?
/ / YES / / NO
a. Have any penalties been assessed?
/ / YES / / NO If yes, please attach documentation.
9. Have sales tax filings been made with respect to out of state
purchases made by THC where the seller did not charge sales tax?
/ / YES / / NO
10. Has any state or local tax agency examined the THCs compliance in
the sales tax area?
/ / YES / / NO If yes, please attach documentation.
a. Were any additional tax or penalties assessed?
/ / YES / / NO If yes, what was the outcome?
11. Has THC evaluated its real estate tax assessments to make sure no
property is over assessed?
/ / YES / / NO
a. Have any assessments been challenged?
/ / YES / / NO If yes, what was the outcome?
-----------------------------------------------------------------
-----------------------------------------------------------------
12. Have careful reviews of personal property tax filings and
assessments been made to make certain they are proper?
/ / YES / / NO
13. Has any state or local tax agency examined the THCs compliance in
the personal property tax area?
/ / YES / / NO If yes, please attach documentation.
a. Were any additional tax or penalties assessed?
/ / YES / / NO If yes, what was the outcome?
-----------------------------------------------------------------
-----------------------------------------------------------------
14. Is the THC registered to do business in the appropriate states?
/ / YES / / NO
14. How much did the THC pay for tax return preparation last year?
$
----------------------
16. Was an accounting firm engaged, and if so, which firm?
/ / YES / / NO
-------------------------------------
----------------------------------------------------------------------
Please attach copies of organizing documents, investor agreements,
IRS determination letter request, IRS determination letter,
and prior three years financial statements and IRS forms
990 and 990-T Also, please enclose for the prior
three years any state and local returns.
----------------------------------------------------------------------
2
General Information On Property
1. Name of property:
---------------------------------------------
2. Address of property:
---------------------------------------------
---------------------------------------------
3. Type of property {please fill out appropriate form in section 3
for this type of property}
/ / Office {Sec.3a - page 5} / / Residential {Sec.3d - page
14}
/ / Retail {Sec.3b - page 8} / / Hotel {Sec.3e - page 17}
/ / Industrial {Sec.3c - page 11} / / Land {Sec.3f - page 191}
/ / Other
-------------------------------------------------------
4. Property manager:
---------------------------------------------
5. Property manager contact:
--------------------------------------
6. Contact phone number:
------------------------------------------
Nature of Investment in Property
1. Nature of THC investment in property:
---------------------------
{e.g., fee simple ownership, tenant in common, partnership
interest, loan, etc.}
2. Name and address of property owner {if not this THC - e.g., a
partnership or another THC}
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
3. Phone Number:
----------------------------------------------------
4. Investment interest of title-holding company in property
owner: %
-----
5. If the owner is a partnership, has the partnership incurred any
debt? / / YES / / NO
Debt
1. Does the THC have any debt or is there any debt with respect to
the properties held by the THC?
/ / YES / / NO
2. Lender information for each loan, please provide the following
information: {attach list if necessary}
/ / Name of lender
---------------------------------------------
/ / Terms of loan {interest rate, payment terms, maturity,
other pertinent terms}
-------------------------------------
------------------------------------------------------------
3. With respect to any debt-financed property {see instructions}, do
any of the following apply? Check all that apply:
/ / The purchase price is not a fixed amount determined as of the
date of the acquisition.
/ / The amount of the indebtedness or any other amount payable
with respect to the indebtedness, or the time for making any
payment of any such amount, is dependent, in whole or in part,
upon revenues, income, or profits derived from the property.
/ / The property is leased to the seller of the property or to a
person related to the seller.
/ / The seller or lessee of the property is a disqualified person
with respect to a pension trust investor {please call if you
need additional information}.
/ / The seller or person related to the seller, or a person related
to a pension trust investor is not providing financing in
connection with the acquisition of the property.
/ / The investment is held through a partnership.
Section
3a
------------------------------------------------------------------------------
OFFICE BUILDING
Detailed Information on Property
1. Is the property: / / leased or / / held for sale?
2. Is any personal property leased together with office space? {e.g.,
are any offices rented furnished}
/ / YES / / NO
3. What percentage of lease rents are attributable to the rental of
personal property? %
-----------
4. Does the building have a parking lot or garage? / /YES / / NO
If NO, please skip to question 20.
5. Is parking lot or garage leased to a parking lot operator?
/ / YES / / NO
If YES, please skip to question 11.
6. Do parking lot or garage users park their own cars or is there
valet parking {or both}?
/ / YES / / NO / / BOTH
7. How is the parking lot or garage operated?
/ / Directly by building owners / / By building managers
/ / By parking lot or garage managers / / Other
--------------
8. Is there a charge for parking? / / YES / / NO
If YES, what is the charge? $
------------------------
If NO, is the cost of parking deemed to be included in the
base rent? / / YES / / NO
9. What is the total parking revenue for the year? $
----------------
---------------------------------------------------------------
Please provide a copy of lease
agreement and/or parking contract.
---------------------------------------------------------------
10. Where is the parking revenue reported?
----------------------
11. Is the parking lot or garage operator treated as a tenant?
/ / YES / / NO
12. What is the monthly rent? $
---------------------
13. What is the basis of the rent?
----------------------------------
{e.g., fixed fee, % of parking profits, etc.}
14. What is the total parking revenue for the year? $
----------------
15. Where is the parking revenue reported?
---------------------------
16. Are there any additional services provided to the operator?
/ /YES / / NO
{i.e., security, maintenance, cleaning, etc.}
If YES, please describe
-----------------------------------------
-----------------------------------------------------------------
17. Is there a charge for such additional services?
/ / YES / / NO If YES, what is the charge? $
----------------
18. What is the total additional service revenue for the year?
$
---------------------
19. Where is the additional service revenue reported?
---------------
20. What, if any, types of facilities and/or services are made
available to tenants and/or the general public for a fee (whether
or not included in rental payments}? Please complete the following
office building schedule.
21. What portion of the building's income does this income
constitute? %
--------------
------------------------------------------------------
Please provide a copy of the lease
agreement and/or other relevant
contracts or documents.
------------------------------------------------------
Section
3b
------------------------------------------------------------------------------
Retail
Detailed Information on Property
1. Is the property: / /leased or / / held for sale?
2. Is any personal property leased together with retail space?
/ / YES / / NO
3. What percentage of lease rents are attributable to the rental of
personal property? %
---------
4. Does the building have a parking lot or garage? / / YES / / NO
If NO, please skip to question 20.
5. Is parking lot leased to a parking lot or garage operator?
/ / YES / / NO
If YES, please skip to question 11.
6. Do parking lot or garage users park their own cars or is there
valet parking {or both}?
/ / YES / / NO / / BOTH
7. How is the parking lot or garage operated?
/ / Directly by building owners / / By building managers
/ / By parking lot or garage managers / / Other
-----------------
8. Is there a charge for parking? / / YES / / NO
If YES, what is the charge? $
---------------
If NO, is the cost of parking deemed to be included in the base
rent? / / YES / / NO
9. What is the total parking revenue for the year? $
-----------------
10. Where is the parking revenue reported?
---------------------------
-----------------------------------------------------------------
Please provide a copy of lease agreement and/or parking contract.
-----------------------------------------------------------------
11. Is the parking lot or garage operator treated as a tenant?
/ / YES / / NO
12. What is the monthly rent? $
-------------------------
13. What is the basis of the rent?
-----------------------------------
{e.g., fixed fee, % of parking profits, etc.}
14. What is the total parking revenue for the year? $
----------------
15. Where is the parking revenue reported?
---------------------------
16. Are there any additional services provided to the operator?
/ / YES / / NO
{i.e., security, maintenance, cleaning, etc.}
If YES, please describe
-----------------------------------------
-----------------------------------------------------------------
17. Is there a charge for such additional services?
/ / YES / / NO
If YES, what is the charge? $
-------------------------
18. What is the total additional service revenue for the year?
$
---------------------
19. Where is the additional service revenue reported?
----------------
20. What, if any, types of facilities and/or services are made
available to tenants and/or the general public for a fee (whether
or not included in rental payments} ? Please complete the
following retail schedule.
21. What portion of the building's income does this income
constitute? %
-----------
------------------------------------------------------------------
Please provide a copy of the lease agreement and/or other relevant
contracts or documents.
------------------------------------------------------------------
Section
3c
------------------------------------------------------------------------------
Industrial
Detailed Information on Property
1. Is the property: / / leased or / / held for sale?
2. Is any personal property leased together with retail space?
/ / YES / / NO
3. What percentage of lease rents are attributable to the rental of
personal property? %
----------
4. Does the building have a parking lot or garage? / / YES / / NO
If NO, please skip to question 20.
5. Is parking lot leased to a parking lot or garage operator?
/ / YES / / NO
If YES, please skip to question 11.
6. Do parking lot or garage users park their own cars or is there
valet parking {or both}?
/ / YES / / NO / / BOTH
7. How is the parking lot or garage operated?
/ / Directly by building owners / / By building managers
/ / By parking lot or garage managers / / Other
-----------------
8. Is there a charge for parking? / / YES / / NO
If YES, what is the charge? $
---------------
If NO, is the cost of parking deemed to be included in the base
rent? / / YES / / NO
9. What is the total parking revenue for the year? $
-----------------
10. Where is the parking revenue reported?
---------------------------
-----------------------------------------------------------------
Please provide a copy of lease agreement and/or parking contract.
-----------------------------------------------------------------
11. Is the parking lot or garage operator treated as a tenant?
/ / YES / / NO
12. What is the monthly rent? $
-------------------------
13. What is the basis of the rent?
-----------------------------------
{e.g., fixed fee, % of parking profits, etc.}
14. What is the total parking revenue for the year? $
----------------
15. Where is the parking revenue reported?
---------------------------
16. Are there any additional services provided to the operator?
/ / YES / / NO
{i.e., security, maintenance, cleaning, etc.}
If YES, please describe
-----------------------------------------
-----------------------------------------------------------------
17. Is there a charge for such additional services?
/ / YES / / NO
If YES, what is the charge? $
-------------------------
18. What is the total additional service revenue for the year?
$
---------------------
19. Where is the additional service revenue reported?
----------------
20. What, if any, types of facilities and/or services are made
available to tenants and/or the general public for a fee (whether
or not included in rental payments} ? Please complete the
following industrial schedule.
21. What portion of the building's income does this income
constitute? %
-----------
------------------------------------------------------------------
Please provide a copy of the lease agreement and/or other relevant
contracts or documents.
------------------------------------------------------------------
Section
3d
------------------------------------------------------------------------------
Residential
Detailed Information on Property
1. Is the property: / / leased or / / held for sale?
2. Is any personal property leased together with residential
property? {e.g. furnished apartments}
/ / YES / / NO
3. What percentage of lease rents are attributable to the rental of
personal property? %
----------
4. Does the building have a parking lot or garage? / / YES / / NO
If NO, please skip to question 20.
5. Is parking lot leased to a parking lot or garage operator?
/ / YES / / NO
If YES, please skip to question 11.
6. Do parking lot or garage users park their own cars or is there
valet parking {or both}?
/ / YES / / NO / / BOTH
7. How is the parking lot or garage operated?
/ / Directly by building owners / / By building managers
/ / By parking lot or garage managers / / Other
-----------------
8. Is there a charge for parking? / / YES / / NO
If YES, what is the charge? $
---------------
If NO, is the cost of parking deemed to be included in the base
rent? / / YES / / NO
9. What is the total parking revenue for the year? $
-----------------
-----------------------------------------------------------------
Please provide a copy of lease agreement and/or parking contract.
-----------------------------------------------------------------
10. Where is the parking revenue reported?
---------------------------
11. Is the parking lot or garage operator treated as a tenant?
/ / YES / / NO
-----------------
12. What is the monthly rent? $
-------------------------
13. What is the basis of the rent?
-----------------------------------
{e.g., fixed fee, % of parking profits, etc.}
14. What is the total parking revenue for the year? $
----------------
15. Where is the parking revenue reported?
---------------------------
16. Are there any additional services provided to the operator?
/ / YES / / NO
{i.e., security, maintenance, cleaning, etc.}
If YES, please describe
-----------------------------------------
-----------------------------------------------------------------
17. Is there a charge for such additional services?
/ / YES / / NO If YES, what is the charge? $
----------------
18. What is the total additional service revenue for the year?
$
---------------------
19. Where is the additional service revenue reported?
----------------
20. What types of non-conventional rentals, if any, exist at the
property? {i.e., corporate apartments, guest suites, etc.}
Please list types of rentals and the square footage each
occupies, as well as the total square footage of the building:
Type of Rental Square Footage
----------------------- -------------------------
----------------------- -------------------------
Entire Building Square Footage
-------------------------
21. What is the total revenue from these non-conventional rentals for
the year? $
---------------------
22. What amount of cleaning is directly attributable to these
rentals? $
----------------------
23. Is any personal property leased in connection with the suites?
/ / YES / / NO
If yes, please describe and indicate the cost of the property
--------------------------------------------------------------------
24. What, if any, types of facilities and/or services are made
available to tenants and/or the general public for a fee (whether
or not included in rental payments}? Please complete the
following residential schedule.
25. What portion of the building's income does this income
constitute? %
---------
------------------------------------------------------------------
Please provide a copy of the lease agreement and/or other relevant
contracts or documents.
------------------------------------------------------------------
Section
3e
------------------------------------------------------------------------------
Hotel
Detailed Information on Property
1. How is the hotel operated? / / Directly by building owners
/ / By management company
/ / Leased to hotel operator
2. Does the building have a parking lot or garage? / / YES / / NO
If NO, please stop here
3. Is parking lot leased to a parking lot or garage operator?
/ / YES / / NO
If YES, please skip to question 8.
4. How is the parking lot or garage operated?
/ / Directly by building owners / / By building managers
/ / By parking lot or garage managers / / Other
-----------------
5. Is there a charge for parking? / / YES / / NO
If YES, what is the charge? $
---------------
If NO, is the cost of parking deemed to be included in the base
rent? / / YES / / NO
6. What is the total parking revenue for the year? $
-----------------
1. Where is the parking revenue reported?
---------------------------
---------------------------------------------------------------
Please provide a copy of lease agreement and/or parking
contract.
---------------------------------------------------------------
2. Is the parking lot or garage operator treated as a tenant?
/ / YES / / NO
3. What is the monthly rent? $
-----------------------
4. What is the basis of the rent?
------------------------------------
{e.g., fixed fee, % of parking profits, etc.}
11. What is the total parking revenue for the year? $
----------------
12. Where is the parking revenue reported?
-------------------------
-----------------------------------------------------------------
Please provide a copy of lease agreement and/or parking contract.
-----------------------------------------------------------------
13. Are there any additional services provided to the operator?
/ / YES / / NO
If YES, please describe
----------------------------------------
----------------------------------------------------------------
14. Is there a charge for such additional services?
/ / YES / / NO If YES, what is the charge? $
--------------
15. What is the total additional service revenue for the year?
$
-----------------------
16. Where is the additional service revenue reported?
--------------
Section
3f
------------------------------------------------------------------------------
Land
Detailed Information on Property
1. Is the property: / / leased or / / held for sale
2. Has property owner subdivided and/or improved the property?
/ / YES / / NO
--------------------------------------------------------------
OFFICE BUILDING
----------------------------------------------------------------------------------------------------------------------------------
INCLUDED SEPARATE TOTAL WHERE IS REVENUE
IN BASE CHARGE - REVENUE REPORTED?
SERVICE RENT? HOW MUCH?
----------------------------------------------------------------------------------------------------------------------------------
Conference/audiovisual facility
----------------------------------------------------------------------------------------------------------------------------------
Health club/exercise facility*
----------------------------------------------------------------------------------------------------------------------------------
Day care center
----------------------------------------------------------------------------------------------------------------------------------
Valet/concierge
----------------------------------------------------------------------------------------------------------------------------------
Cafeteria/coffee shop
----------------------------------------------------------------------------------------------------------------------------------
Vending machines
----------------------------------------------------------------------------------------------------------------------------------
Extra security {beyond normal
building security}
----------------------------------------------------------------------------------------------------------------------------------
Cleaning/maid service for offices
{i.e., in addition to common
areas}
----------------------------------------------------------------------------------------------------------------------------------
Maintenance service for offices
----------------------------------------------------------------------------------------------------------------------------------
Other {please list}
----------------------------------------------------------------------------------------------------------------------------------
*Only facilities operated by the building, not the tenant.
RETAIL
----------------------------------------------------------------------------------------------------------------------------------
INCLUDED SEPARATE TOTAL WHERE IS REVENUE
IN BASE CHARGE - REVENUE REPORTED?
SERVICE RENT? HOW MUCH?
----------------------------------------------------------------------------------------------------------------------------------
Vending machines
----------------------------------------------------------------------------------------------------------------------------------
Extra security {beyond normal
building security}
----------------------------------------------------------------------------------------------------------------------------------
Cleaning/maid service for offices
{i.e., in addition to common
areas}
----------------------------------------------------------------------------------------------------------------------------------
Maintenance service for stores?
----------------------------------------------------------------------------------------------------------------------------------
Marketing services {e.g., retailers
association operated by landlord}
----------------------------------------------------------------------------------------------------------------------------------
Other {please list}
----------------------------------------------------------------------------------------------------------------------------------
INDUSTRIAL
----------------------------------------------------------------------------------------------------------------------------------
INCLUDED SEPARATE TOTAL WHERE IS REVENUE
IN BASE CHARGE - REVENUE REPORTED?
SERVICE RENT? HOW MUCH?
----------------------------------------------------------------------------------------------------------------------------------
Extra security {beyond normal
building security}
----------------------------------------------------------------------------------------------------------------------------------
Cleaning/maid service
----------------------------------------------------------------------------------------------------------------------------------
Maintenance service
----------------------------------------------------------------------------------------------------------------------------------
Other {please list}
----------------------------------------------------------------------------------------------------------------------------------
RESIDENTIAL
----------------------------------------------------------------------------------------------------------------------------------
INCLUDED SEPARATE TOTAL WHERE IS REVENUE
IN BASE CHARGE - REVENUE REPORTED?
SERVICE RENT? HOW MUCH?
----------------------------------------------------------------------------------------------------------------------------------
Health club/exercise facility/pool,
etc.
----------------------------------------------------------------------------------------------------------------------------------
Day care center
----------------------------------------------------------------------------------------------------------------------------------
Valet/concierge
----------------------------------------------------------------------------------------------------------------------------------
Vending machines/coin laundry
----------------------------------------------------------------------------------------------------------------------------------
Extra security {beyond normal
building security}
----------------------------------------------------------------------------------------------------------------------------------
Cleaning/maid service
----------------------------------------------------------------------------------------------------------------------------------
Maintenance service
----------------------------------------------------------------------------------------------------------------------------------
Other {please list}
----------------------------------------------------------------------------------------------------------------------------------
APPENDIX
------------------------------------------------------------------------------
Real Property Title-Holding Company Tax Questionnaire Instructions
------------
Introduction The federal income tax rules governing tax-exempt
------------ title-holding companies are complex. The rules limit the
trade or business activities that can be engaged in by a tax-exempt
title-holding company. As a result, issues arise as to the proper
tax-treatment of a title-holding company that, for example, operates a
parking lot or a conference facility in connection with the rental of
commercial real property. Services to tenants can cause what would
otherwise be nontaxable rents from real property to be treated as trade
or business income, as can rentals of personal property together with
personal property. Finally, the presence of debt in a title-holding
company may raise tax issues both with respect to the title-holding
company and the tax-exempt investors in the title holding company. Tax
issues also arise at the state level.
The attached questionnaire is designed to capture the information
necessary to determine what tax issues may exist with respect to the
title-holding companies managed by you. Please complete it carefully.
To assist you in completing the questionnaire, a brief summary of the
federal tax rules that apply to tax-exempt title-holding companies and
their investors is provided below.
-----------------------
Title-Holding Companies There are two types of tax-exempt title
----------------------- holding companies. Section 501(c)(2) of
the Internal Revenue Code provides tax-exempt status to certain
corporations organized for the exclusive purpose of holding title to
property and remitting any income from the property to one or more
related tax-exempt organizations.
Section 501(c)(25) provides tax-exempt status to certain corporations and
trusts that are organized for the exclusive purposes of acquiring and
holding title to real property, collecting income from such property, and
remitting the income to no more than 35 shareholders or beneficiaries
that are (1) qualified pension, profit-sharing, or stock bonus plans, (2)
governmental pension plans, (3) the United States, a State or political
subdivision, or governmental agencies or instrumentalities, or (4)
tax-exempt charitable, educational, religious, or other organizations
described in section 501(c)(3).
A title-holding company is strictly limited as to the amount of unrelated
business income (discussed below) it can receive without losing its
tax-exempt status. A title-holding company is permitted to receive
unrelated business income as a result of the unrelated debt-financed
income rules, or as a result of the rules that apply to the rental of
personal property together with real property. For tax years beginning
after December 31, 1993, a title-holding company can also receive a
limited amount of other unrelated business income incidentally derived
from the holding of real property. This last rule applies, for example,
to income generated from parking or operating vending machines.
-----------------------------------
Unrelated Business Income Tax Rules The unrelated business income tax
----------------------------------- (UBIT) applies, under sections 511
through 514 of the Internal Revenue Code, to certain otherwise tax-exempt
organizations, including pension trusts, colleges and universities,
hospitals, private foundations, title-holding companies, etc. The general
scheme of the UBIT
is to tax the net income earned by a tax-exempt organization from
activities that are "regularly carried on" and that are not
"substantially related" to the organization's exempt purpose.
In enacting the UBIT, Congress specifically excluded from tax certain
types of passive investment income, including rents from real property
and certain gains from the sale of property.
------------------------
Rents From Real Property One of the categories of passive investment
------------------------ income normally not subject to UBIT is rents
from real property. The exemption does not apply to rents from real
property where it is leased together with personal property and the rents
attributable to the personal property exceed a stated limit. In other
cases, the rents attributable to the real property may be tax-free, while
the rents attributable to the personal property are subject to tax.
Rents also do not qualify for exclusion from UBIT as "rents from real
property" where services are provided to tenants. For this purpose,
"services" are considered provided to tenants if they are primarily for
the tenant's convenience and are other than those customarily provided in
connection with the rental of real estate. Services to tenants could
include, for example, maid or concierge service, or security beyond what
is necessary to protect the building. The IRS takes the position that the
provision of parking is a service to tenants.
-------------------------------
Gains From the Sale of Property Gains from the disposition of property
------------------------------- is another category of income normally
not subject to UBIT. The exclusion for gains from the disposition of
property does not generally apply, however, if the property is inventory
or held primarily for sale to customers in the ordinary course of the
trade or business. Under this rule, a tax-exempt organization is
generally subject to tax, for example, on income earned from land
development or homebuilding activities.
----------------------
Debt-Financed Property Under section 514, for most types of tax-exempt
---------------------- organizations, the rules exempting from UBIT
rents and gains from the sale of property do not apply to the extent such
rents and gains are derived from debt-financed property. In other words,
most types of exempt organizations must pay UBIT on the leveraged portion
of the net income from real estate.
A special exception from the unrelated debt-financed income rules applies
to "qualified organizations", including pension trusts, and educational
institutions. Under this exception, rents from debt-financed real
property owned by qualified organizations are generally not subject to
tax.
Section 501(c)(25) title-holding companies (but not section 501(c)(2)
title-holding companies) are treated as qualified organizations. However,
any investor in a section 501(c)(25) title-holding company that is not
itself a qualified organization is subject to the unrelated debt-financed
income rules on its share of income from debt-financed property.
In other words, if a section 501(c)(2) title-holding company owns
debt-financed property, it is subject to tax under the unrelated
debt-financed income rules. If a section 501(c)(25) title holding company
owns debt-financed property, it may not be subject to tax under the
unrelated debt-financed income rules.
Exhibit E
Intentionally Omitted
---------------------
Exhibit F
Standard Commissions
--------------------
First year of the Lease Term: five percent (5%) of the Base Rent
payable during such period
Second year of the Least Term: four percent (4%) of the Base Rent
payable during such period
Third year through and including
the fifth year of the Lease Term: three and one half percent (3.5%) of
the Base Rent payable during such
period
Sixth year through and including
the tenth year of the Lease Term: two and one half percent (2.5%) of the
Base Rent payable during such period
Eleventh year through and including
the twentieth year of the Lease
Term: two percent (2%) of the Base Rent
payable during such period
Twenty-first year and thereafter: one percent (1%) of the Base Rent
payable during such period
For the purpose of computing any Leasing Commission due and
payable hereunder, the term "Base Rent" shall mean the fixed rent stated in
the Lease in question (regardless of how such rent is denominated), but
excluding the following items of additional rent (regardless of how such items
are denominated under such Lease or payable as part of, or an increase in, the
fixed rent):
(a) any additional rent payable pursuant to any escalation
provision in such Lease and representing the tenant's share of
Owner's operating costs and expenses, real estate taxes,
utilities, insurance and the like or any increase therein,
including any escalation provision which is determined on the
basis of any consumer price or other index;
(b) any additional rent representing reimbursement to Owner for
electricity, gas, oil or other utility charges or service paid
by Owner in respect to the tenant's leased space which are not
to be provided by Owner during regular building hours pursuant
to the applicable standard form of lease;
(c) any additional rent representing (i) special tenant services,
which in the judgment of Owner, exceed those normal services
provided to all tenants or (ii) an amortization of the tenant's
contribution to the Owner for tenant finish which is
non-standard tenant finish or unique to a specific tenant's use
or occupancy, or any increase in the base rent (over the
prevailing base rent quoted by Owner to other prospective
tenants) which represents an amortization of the cost of such
tenant finish;
(d) reimbursements to Owner for loans made to tenants made pursuant
to a Lease;
(e) rent for parking;
(f) any additional rent payable for space based upon a percentage
of sales or gross receipts, except that, in the case of a Lease
which provides that only a percentage rent and no base rent, is
payable either for a specified period of time or for the entire
term of such Lease, the base rent shall be deemed to be the
amount to be determined by Owner and Manager in good faith
prior to entering into any such Lease;
(g) any damages, penalty payment, service charge, late charge or
cancellation policy and/or interest relating to any of the
foregoing;
(h) rent for services or facilities available to a tenant at
locations other than the tenant's leased space at the Property
(including any storage space rental);
(i) rentals payable upon continuation of a Lease on a
month-to-month basis (provided that if the applicable tenant
subsequently renews or extends its Lease or enters into a Lease
for the same premises or another premises in the Building, then
such rent paid on a month-to-month basis (other than holdover
penalties) shall be included in calculation of Base Rent for
the original term of the Lease, and Owner shall pay a Leasing
Commission with regard thereto as if such month-to-month period
had been part of the original term of the Lease);
(j) any consideration received by Owner for the sale or lease of
any personal property or fixtures used in connection with the
Property;
(k) amounts payable, by reason of direct payment by a tenant for
electricity, heat, air conditioning, utilities, supplies and/or
other goods and services;
(l) any lease buy-out, pick-up or any other consideration received
by Owner for accepting a surrender or other termination or
cancellation of a lease, voluntary or otherwise;
(m) any sublease or other profits received by Owner as a result of
subleasing or assignments done by a tenant;
(n) any security deposit or payment of rent in advance as security;
and
(o) any other rent which is not base rent.
Schedule I
----------
GACC Loan Costs
---------------
-▇▇-
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ Loan Costs
As of September 30, 2005
Date Description Amount
---- ----------- ------
6/30/2005 Quantitative Interest Hedge Fee $ 13,635.00
6/30/2005 Quantitative Interest 150MM Hedge Fee $ 22,500.00
7/12/2005 National Corporate research Filing Fees $ 1,375.00
7/27/2005 First American title Recording Fees $ 477.00
7/27/2005 National Corporate research Good standing certs $ 65.00
7/27/2005 National Corporate research Good standing certs $ 465.00
8/3/2005 UBS Real Estate Production costs $ 9,800.00
8/3/2005 ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ appraisal $ 17,500.00
8/3/2005 LandAmerica engineering / environmental $ 8,000.00
8/3/2005 Fleet Insurance insurance review $ 3,750.00
8/3/2005 Standard & Poors Citibank lease review $ 2,000.00
8/3/2005 Planning and Zoning Resource review $ 630.00
8/3/2005 ▇▇▇▇▇▇▇ ▇▇▇▇ Lender's counsel $ 295,000.00
8/3/2005 First American title Title / Mortgage Tax $ 9,338,246.00
8/3/2005 ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title Gratuity $ 500.00
8/3/2005 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger Lender environmental counsel $ 7,500.00
8/3/2005 ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ nonconsolidation opinion $ 12,426.87
9/27/2005 ▇▇▇▇▇ ▇▇▇▇▇ Borrower's counsel $ 294,427.50
---------------
Total $ 10,028,297.37
===============
Schedule II
-----------
Investor Organizational Chart
-----------------------------
-96-
Schedule III
------------
Litigation
----------
None.
-▇▇-
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLC Structure,
------------------------------------
----------------- ----------- ----------- ----------- -----------
Commingled The individual Reckson multiple
Pension Trust Prudential share- Associates limited
----------------------------------------- Fund (Special Assurance holders Realty partnership
certain of the constituent entities from Situation Company ----------- Corp., unit
time to time of the fund marketed as the Property) of Limited, | a Maryland owners
"▇.▇. ▇▇▇▇▇▇ U.S. Real Estate Income and JPMorgan Chase a United | corporation -----------
Growth Fund" Bank, N.A. (a Kingdom | 0.1% ------------ |
----------------------------------------- bank collective limited | | |
| investment fund) company | | |
| ----------------- ----------- | | |
---------------|----------------- | | | |Approximately |Approximately
| | | | | | |95%, |5%
| | | | 100% | 99.9% | |general |
| | | | | | |partner |
----------- ------------ ----------- ---------- -------------------- | |
JPM I&G JPM I&G I&G SSPF One | |
Domestic Direct Cayman Court | |
JV 13, JV 13, Sub Corp Square NAPI REIT, | |
LLC, LLC, JV 13, Member, Inc., a | |
a Delaware a Delaware Inc., LLC, Maryland ------------------------------
limited limited a Delaware a Delaware corporation Reckson Operating
liability liability corporation limited Partnership, L.P.,
company company liability a Delaware limited partnership
company
----------- ------------ ----------- ---------- -------------------- ------------------------------
| | | | | |
| | | | | |
|28.5403% |0.2704% |21.2893% |24.9% |25% |100%
| | | | | |
| | | | | |
| | | | | |
--------------------------------------------------------------------------------------------- ------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Investor, LLC, Member LLC,
a Delaware limited liability company a Delaware limited
liability company
--------------------------------------------------------------------------------------------- ------------------------------
| |
| | 30%
|70% |administrative
| | member
| |
----------------------------------
One Court Square
Holdings LLC,
a Delaware
limited liability company
----------------------------------
|
|
|100%
|
|
----------------------------------
Reckson Court Square, LLC,
a Delaware
limited liability company
----------------------------------
|
|
|100%
|
|
----------------------------------
Property
(One ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇)
----------------------------------
Schedule IV
-----------
Engineering and Environmental Reports
-------------------------------------
1. Draft Property Condition Assessment, Project No. 20050515, prepared by
Property Solutions Inc. dated February 23, 2005, and
2. Phase I Environmental Site Assessment, Project No. E6-1159, prepared
by ▇▇▇▇▇▇▇▇ Group, LLC dated March 17, 2005.
-98-