Exhibit 10.2
PROMISSORY NOTE
---------------
$196,068,300.00 New York, New York
August 26, 2005
FOR VALUE RECEIVED RA 492 RIVER ROAD LLC, a Delaware limited liability
company, having an address c/o Reckson Associates Realty Corp., 225
Broadhollow Road, Melville, New York 11747-4833 ("492 River Borrower"), RA 100
EXECUTIVE DRIVE LLC, a Delaware limited liability company, having an address
c/o Reckson Associates Realty Corp., 225 Broadhollow Road, Melville, New York
11747-4833 ("100 Executive Borrower"), RA 200 EXECUTIVE DRIVE LLC, a Delaware
limited liability company, having an address c/o Reckson Associates Realty
Corp., 225 Broadhollow Road, Melville, New York 11747-4833 ("200 Executive
Borrower"), RA 35 PINELAWN ROAD LLC, a Delaware limited liability company,
having an address c/o Reckson Associates Realty Corp., 225 Broadhollow Road,
Melville, New York 11747-4833 ("35 Pinelawn Borrower"), RA 80 GRASSLANDS ROAD
LLC, a Delaware limited liability company, having an address c/o Reckson
Associates Realty Corp., 225 Broadhollow Road, Melville, New York 11747-4833
("80 Grasslands Borrower"), RA 100 GRASSLANDS ROAD LLC, a Delaware limited
liability company, having an address c/o Reckson Associates Realty Corp., 225
Broadhollow Road, Melville, New York 11747-4833 ("100 Grasslands Borrower"),
RA 150 MOTOR PARKWAY LLC, a Delaware limited liability company, having an
address c/o Reckson Associates Realty Corp., 225 Broadhollow Road, Melville,
New York 11747-4833 ("150 Motor Borrower"), RA 660 WHITE PLAINS ROAD LLC, a
Delaware limited liability company, having an address c/o Reckson Associates
Realty Corp., 225 Broadhollow Road, Melville, New York 11747-4833 ("660 White
Plains Borrower"), and RA 225 HIGH RIDGE LLC, a Delaware limited liability
company, having an address c/o Reckson Associates Realty Corp., 225
Broadhollow Road, Melville, New York 11747-4833 ("225 High Ridge Borrower";
and 225 High Ridge Borrower, together with 492 River Borrower, 100 Executive
Borrower, 200 Executive Borrower, 35 Pinelawn Borrower, 80 Grasslands
Borrower, 100 Grasslands Borrower, 150 Motor Borrower and 660 White Plains
Borrower, together with any permitted successors and assigns of each, each, a
"Borrower" and collectively, "Borrowers"), collectively, as makers, hereby
jointly and severally unconditionally promise and agree to pay to the order of
UBS REAL ESTATE INVESTMENTS INC., a Delaware corporation ("Lender"), having an
address at 1285 Avenue of the Americas, 11th Floor, New York, New York 10019,
as payee, or at such other place as the holder hereof may from time to time
designate in writing, the principal sum of ONE HUNDRED NINETY SIX MILLION
SIXTY EIGHT THOUSAND THREE HUNDRED AND 00/100 Dollars ($196,068,300.00), or so
much thereof as is advanced pursuant to that certain Loan Agreement dated as
of the date hereof, between Borrowers and Lender (as the same may be amended,
modified, supplemented, replaced or otherwise modified from time to time, the
"Loan Agreement"), in lawful money of the United States of America, with
interest thereon to be computed from the date of this Promissory Note (this
"Note") at the Interest Rate (as defined in the Loan Agreement), and to be
paid in accordance with the terms of this Note and the Loan Agreement. All
capitalized terms not defined herein shall have the respective meanings set
forth in the Loan Agreement.
ARTICLE 1: PAYMENT TERMS
Borrowers jointly and severally agree to pay the principal sum of this
Note and the interest on the unpaid principal sum of this Note and all other
amounts due under the Loan Agreement and the other Loan Documents, including,
without limitation, the Yield Maintenance Premium (if applicable), at the
rates and at the times specified in Article 2 of the Loan Agreement, and the
outstanding balance of the principal sum of this Note and all accrued and
unpaid interest thereon and all other amounts due under the Loan Agreement and
the other Loan Documents, including, without limitation, the Yield Maintenance
Premium (if applicable), shall be due and payable in full on the Maturity
Date.
ARTICLE 2: DEFAULT AND ACCELERATION
The Debt shall without notice become immediately due and payable at the
option of Lender if any payment required in this Note is not paid on or prior
to the date when due or if not paid on the Maturity Date or on the happening
of any other Event of Default.
ARTICLE 3: LOAN DOCUMENTS
This Note is secured by the Mortgage and the other Loan Documents. All
of the terms, covenants and conditions contained in the Loan Agreement, the
Mortgage and the other Loan Documents are hereby made part of this Note to the
same extent and with the same force as if they were fully set forth herein. In
the event of a conflict or inconsistency between the terms of this Note and
the Loan Agreement, the terms and provisions of the Loan Agreement shall
govern.
ARTICLE 4: SAVINGS CLAUSE
Notwithstanding anything to the contrary, (a) all agreements and
communications between Borrowers and Lender are hereby and shall automatically
be limited so that, after taking into account all amounts deemed to constitute
interest, the interest contracted for, charged or received by Lender shall
never exceed the Maximum Legal Rate, (b) in calculating whether any interest
exceeds the Maximum Legal Rate, all such interest shall be amortized,
prorated, allocated and spread over the full amount and term of all principal
indebtedness of Borrowers to Lender, and (c) if through any contingency or
event, Lender receives or is deemed to receive interest in excess of the
Maximum Legal Rate, any such excess shall be deemed to have been applied
toward payment of the principal of any and all then outstanding indebtedness
of Borrowers to Lender or, if there is no such indebtedness, shall immediately
be returned to Borrowers.
ARTICLE 5: NO ORAL CHANGE
This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
any Borrower or Lender, but only by an agreement in writing signed by the
party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
ARTICLE 6: WAIVERS
Each Borrower and all others who may become liable for the payment of
all or any part of the Debt do hereby jointly and severally waive presentment
and demand for payment, notice of dishonor, notice of intention to accelerate,
notice of acceleration, protest and notice of protest and non-payment and all
other notices of any kind. No release of any security for the Debt or
extension of time for payment of this Note or any installment hereof, and no
alteration, amendment or waiver of any provision of this Note, the Loan
Agreement or the other Loan Documents made by agreement between Lender or any
other Person shall release, modify, amend, waive, extend, change, discharge,
terminate or affect the liability of any Borrower or any other Person who may
become liable for the payment of all or any part of the Debt under this Note,
the Loan Agreement or the other Loan Documents. No notice to or demand on any
Borrower shall be deemed to be a waiver of the obligation of Borrowers or of
the right of Lender to take further action without further notice or demand as
provided for in this Note, the Loan Agreement or the other Loan Documents. If
any Borrower is a partnership or limited liability company, the agreements
herein contained shall remain in force and be applicable, notwithstanding any
changes in the individuals comprising the partnership or limited liability
company, and the term "Borrower," as used herein, shall include any alternate
or successor partnership or limited liability company, but any predecessor
partnership or limited liability company shall not thereby be released from
any liability. If any Borrower is a corporation, the agreements contained
herein shall remain in full force and be applicable notwithstanding any
changes in the shareholders comprising, or the officers and directors relating
to, the corporation, and the term "Borrower," as used herein, shall include
any alternative or successor corporation, but any predecessor corporation
shall not be relieved of liability hereunder. (Nothing in the foregoing two
sentences shall be construed as a consent to, or a waiver of, any prohibition
or restriction on transfers of interests in such partnership, limited
liability company or corporation, as applicable, which may be set forth in the
Loan Agreement, the Mortgage or any other Loan Document.)
ARTICLE 7: TRANSFER
Upon the transfer of this Note in accordance with the terms of the Loan
Agreement, Lender may deliver all the collateral mortgaged, granted, pledged
or assigned pursuant to the Loan Documents, or any part thereof, to the
transferee who shall thereupon become vested with all the rights herein or
under applicable law given to Lender with respect thereto, and Lender shall
thereafter forever be relieved and fully discharged from any liability or
responsibility in the matter; but Lender shall retain all rights hereby given
to it with respect to any liabilities and the collateral not so transferred.
ARTICLE 8: EXCULPATION
The provisions of Section 11.22 of the Loan Agreement are hereby
incorporated by reference into this Note to the same extent and with the same
force as if fully set forth herein.
ARTICLE 9: GOVERNING LAW
(A) THIS NOTE WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY
BORROWERS AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF
THIS NOTE WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES
AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING
TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF
AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH BORROWER HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY
OTHER JURISDICTION GOVERNS THIS NOTE AND THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR ANY
BORROWER ARISING OUT OF OR RELATING TO THIS NOTE MAY AT LENDER'S OPTION BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF
NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
AND EACH BORROWER AND LENDER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR
HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND EACH BORROWER AND LENDER HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. EACH
BORROWER DOES HEREBY DESIGNATE AND APPOINT:
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
Attention: Robert J. Wertheimer, Esq.
Robert J. Grados, Esq.
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO EACH BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS
UPON SUCH BORROWER IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW
YORK. EACH BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED
ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME
TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK,
NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON
AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A
SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW
YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR. NOTHING CONTAINED HEREIN
SHALL AFFECT THE RIGHT OF LENDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
ANY BORROWER IN ANY OTHER JURISDICTION.
ARTICLE 10: WAIVER OF JURY TRIAL
EACH BORROWER AND LENDER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF
ANY ISSUE TRIABLE OF RIGHT BY JURY, AND FOREVER WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST,
WITH REGARD TO THIS NOTE, THE MORTGAGE OR THE OTHER LOAN DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY EACH
BORROWER AND LENDER AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE
ACCRUE. EACH PARTY HERETO IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY SUCH
OTHER PARTY.
ARTICLE 11: SUCCESSORS AND ASSIGNS
This Note shall be binding upon, and shall inure to the benefit of, each
Borrower and Lender and their respective successors and permitted assigns.
Lender shall have the right to assign or transfer its rights under this Note
in connection with any assignment of the Loan and the Loan Documents. Any
assignee or transferee of Lender shall be entitled to all the benefits
afforded to Lender under this Note. No Borrower shall have the right to assign
or transfer its rights or obligations under this Note without the prior
written consent of Lender, as provided in the Loan Agreement, and any
attempted assignment without such consent shall be null and void.
ARTICLE 12: NOTICES
All notices or other written communications hereunder shall be delivered
in accordance with Section 11.6 of the Loan Agreement.
ARTICLE 13: JOINT AND SEVERAL
The covenants, agreements, obligations and liabilities of Borrowers
hereunder are joint and several.
[NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, Borrowers have duly executed this Promissory Note as
of the day and year first above written.
BORROWERS:
---------
RA 492 RIVER ROAD 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: /s/ Jason Barnett
-------------------------
Name: Jason Barnett
Title: Executive Vice President
RA 100 EXECUTIVE DRIVE 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: /s/ Jason Barnett
-------------------------
Name: Jason Barnett
Title: Executive Vice President
RA 200 EXECUTIVE DRIVE 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: /s/ Jason Barnett
------------------------------
Name: Jason Barnett
Title: Executive Vice President
RA 35 PINELAWN ROAD 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: /s/ Jason Barnett
----------------------------------
Name: Jason Barnett
Title: Executive Vice President
RA 80 GRASSLANDS ROAD 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: /s/ Jason Barnett
--------------------------------
Name: Jason Barnett
Title: Executive Vice President
RA 100 GRASSLANDS ROAD 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: /s/ Jason Barnett
----------------------------------
Name: Jason Barnett
Title: Executive Vice President
RA 150 MOTOR PARKWAY 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: /s/ Jason Barnett
--------------------------------
Name: Jason Barnett
Title: Executive Vice President
RA 660 WHITE PLAINS ROAD 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: /s/ Jason Barnett
--------------------------------
Name: Jason Barnett
Title: Executive Vice President
RA 225 HIGH RIDGE 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: /s/ Jason Barnett
------------------------------
Name: Jason Barnett
Title: Executive Vice President
ACKNOWLEDGMENTS
---------------
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 26th day of August, in the year 2005, before me, the
undersigned, a Notary Public in and for said State, personally appeared Jason
Barnett, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his capacity,
and that by his signature on the instrument, the individual, or the person
upon behalf of which the individual acted, executed the instrument.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Mary Lynn Sekosky
------------------------------------
Notary Public
(NOTARIAL SEAL)
My Commission Expires:
Signature Page to Note (Pool A)