Exhibit 10.3
EXECUTION COPY
===============================================================================
RECKSON ASSOCIATES REALTY CORP.
Series B Convertible Cumulative Preferred Stock
-----------------------
PURCHASE AGREEMENT
-----------------------
Dated: May 27, 1999
===============================================================================
TABLE OF CONTENTS
Section Page
- ------- ----
1. AUTHORIZATION OF PREFERRED STOCK.........................................1
2. PURCHASE AND SALE OF PREFERRED STOCK.....................................1
3. CLOSING..................................................................1
4. CONDITIONS TO CLOSING....................................................2
4.1. Representations and Warranties..................................2
4.2. Compliance......................................................2
4.3. Compliance Certificates.........................................2
4.4. Opinion of Counsel..............................................2
4.5. Documents Required..............................................2
5. REPRESENTATIONS AND WARRANTIES...........................................3
5.1. Good Standing of the Issuer.....................................3
5.2. Good Standing of the Operating Partnership......................3
5.3. Good Standing of Significant Subsidiaries.......................3
5.4. Financial Statements............................................4
5.5. Capitalization..................................................4
5.6. Authorization, Validity and Enforceability of this
Agreement and the Registration Rights Agreement.................5
5.7. Authorization of Preferred Stock................................5
5.8. Authorization of Common Stock...................................5
5.9. Compliance with Laws, Other Instruments, etc....................5
5.10. Governmental Authorizations, etc................................6
5.11. Litigation......................................................6
5.12. No Defaults.....................................................6
5.13. Title to Property; Leases and Mortgages.........................6
5.14. Licenses and Approvals..........................................6
5.15. Environmental Matters...........................................7
5.16. Material Adverse Change.........................................7
5.17. Private Offering................................................7
5.18. REIT Qualification..............................................8
5.19. Tax Returns.....................................................8
6. REPRESENTATIONS OF THE PURCHASERS........................................8
7. INDEMNIFICATION..........................................................9
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.............9
9. NOTICES.................................................................10
10. PAYMENTS ON PREFERRED AND COMMON STOCK..................................10
10.1. Home Office Payment............................................10
11. CONFIDENTIAL INFORMATION................................................10
12. MISCELLANEOUS...........................................................11
12.1. Successors and Assigns.........................................11
12.2. Severability...................................................11
12.3. Counterparts...................................................12
12.4. Governing Law..................................................12
SCHEDULE A -- Information Relating To Purchasers
EXHIBIT 1 -- Form of Articles Supplementary
EXHIBIT 4.4 -- Form of Opinion of Counsel for the Issuer
EXHIBIT 4.5 -- Form of Registration Rights Agreement
RECKSON ASSOCIATES REALTY CORP.
225 Broadhollow Road
Melville, New York 11747
Series B Convertible Cumulative Preferred Stock
May 27, 1999
TO THE PURCHASERS LISTED ON
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
Reckson Associates Realty Corp., a Maryland corporation (the "ISSUER"),
and Reckson Operating Partnership, L.P., a Delaware limited partnership (the
"OPERATING PARTNERSHIP"), each agrees with you as follows:
1. AUTHORIZATION OF PREFERRED STOCK.
The Issuer has duly authorized the 6,000,000 million shares of its
Series B Convertible Cumulative Preferred Stock with a liquidation preference of
$25.00 per share (the "Preferred Stock"). The terms and provisions of the
Preferred Stock will be set forth in the Articles Supplementary (the "Articles
Supplementary") to the Issuer's charter, substantially in the form set forth in
Exhibit 1, which will be filed on or prior to the Closing (as defined in Section
3).
2. PURCHASE AND SALE OF PREFERRED STOCK.
Subject to the terms and conditions of this Agreement, the Issuer will
issue and sell to you, severally, and you, severally, will purchase from the
Issuer, at the Closing, the shares of Preferred Stock specified opposite your
name in Schedule A hereto at a price equal to $25.00 per share.
3. CLOSING.
The delivery of the Preferred Stock to be purchased by you shall occur
at the offices of Brown & Wood LLP, One World Trade Center, New York, New York
10048, at or about 10:00 a.m., New York City time, at a closing on June 2, 1999
or such other date as may be agreed upon by the Issuer and you (the "CLOSING").
At the Closing, the Issuer will deliver to each of you a single certificate
representing the number of shares of Preferred Stock specified opposite your
name on Schedule A hereto, which will be dated the date of the Closing and
registered in your name (or in the name of your nominee), and you shall
simultaneously deliver to the Issuer (by wire transfer to the Issuer's Account
No. 304-220191, The Chase Manhattan Bank, 380 Madison Avenue, New York, New York
10017, Account Name: Reckson Associates Realty Corp., ABA No.: 021000021), in
immediately available funds, the purchase price for such shares referred to in
Section 2.
If at the Closing the Issuer shall fail to tender any certificates as
provided above, or any of the conditions specified in Section 4 shall not have
been fulfilled, you shall, at your election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights you may
have by reason of such failure or nonfulfillment. If, however, at the Closing
you shall fail to pay for the Preferred Stock in full as provided above, the
Issuer shall, at its election, be relieved of all further obligations under this
Agreement, without thereby waiving any rights the Issuer may have by reason of
such failure.
4. CONDITIONS TO CLOSING.
Your obligation to purchase the Preferred Stock at the Closing is
subject to the fulfillment of the following conditions on or prior to the
Closing:
4.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Issuer and the Operating
Partnership in this Agreement shall be true and correct when made and on the
date of the Closing.
4.2. COMPLIANCE.
The Issuer shall have complied with all agreements and satisfied all
conditions contained in this Agreement required to be performed or complied with
by it prior to or on the Closing.
4.3. COMPLIANCE CERTIFICATES.
(a) Officer's Certificate. The Issuer shall have delivered to you a
---------------------
certificate executed by an officer of the Issuer on behalf of the Issuer for
itself and as general partner of the Operating Partnership, dated the date of
the Closing, certifying that the conditions specified in Section 4 have been
fulfilled.
(b) Secretary's Certificate. The Issuer shall have delivered to you
-----------------------
a certificate executed by the secretary or assistant secretary of the Issuer on
behalf of the Issuer for itself and as general partner of the Operating
Partnership certifying as to the resolutions of the Issuer relating to the
authorization, execution and delivery of this Agreement and consummation of the
transactions contemplated hereby.
4.4. OPINION OF COUNSEL.
You shall have received an opinion dated the date of the Closing from
Brown & Wood LLP, counsel for the Issuer, substantially in the form set forth in
Exhibit 4.4.
4.5. DOCUMENTS REQUIRED.
You shall have received the following documents, each dated the date of
Closing:
(a) a certificate registered in your name (or in the name of your
nominee) representing the number of shares of Preferred Stock to be purchased by
you pursuant to Section 2, duly executed by the Issuer;
(b) the Articles Supplementary, substantially in the form set forth
in Exhibit 1, duly executed by the Issuer and evidence reasonably satisfactory
to the Purchasers demonstrating that such Articles Supplementary have been
filed;
(c) the Registration Rights Agreement (the "Registration Rights
Agreement"), substantially in the form set forth in Exhibit 4.5, duly executed
by the Issuer and the Operating Partnership; and
(d) the documents contemplated in Section 4.3 and Section 4.4
hereof.
5. REPRESENTATIONS AND WARRANTIES.
Each of the Issuer and the Operating Partnership represents and
warrants, jointly and severally, to you as of the date hereof that:
5.1. GOOD STANDING OF THE ISSUER.
The Issuer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect (as defined
below). The Issuer has the corporate power and authority to own, lease and
operate its properties, to conduct its business and to enter into and perform
its obligations under this Agreement. As used herein, "Material Adverse Effect"
means a material adverse effect on the financial condition, results of
operations or business of the Issuer and its consolidated subsidiaries taken as
a whole.
5.2. GOOD STANDING OF THE OPERATING PARTNERSHIP.
The Operating Partnership is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified as a foreign limited partnership and is in good standing
in each jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Operating Partnership has the partnership
power and authority to own, lease and operate its properties, to conduct its
business and to enter into and perform its obligations under this Agreement.
5.3. GOOD STANDING OF SIGNIFICANT SUBSIDIARIES.
Each subsidiary of the Issuer that is a "significant subsidiary", as
such term is defined in Section 1-02 of Regulation S-X (each a "Significant
Subsidiary," and collectively, the "Significant Subsidiaries"), has been duly
organized and is validly existing as a corporation, limited partnership, limited
liability company or other entity, as the case may be, in good standing under
the laws of the state of its jurisdiction of incorporation or organization, as
the case may be, with the requisite power and authority to own, lease and
operate its properties and to conduct its business. Each such entity is duly
qualified or registered as a foreign corporation, limited partnership or limited
liability company or other entity, as the case may be, to transact business and
is in good standing in each jurisdiction in which such qualification is required
by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. All of the issued
and outstanding capital stock or other equity interests of each such entity has
been duly authorized and validly issued and is fully paid and non-assessable
and, except as otherwise stated in the Exchange Act Reports (as defined below),
are owned by the Issuer or the Operating Partnership, as the case may be, in
each case free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity (collectively, "Liens"). As used herein, "Exchange
Act Reports" means the Issuer's Annual Report on Form 10-K for the year ended
December 31, 1998, the Quarterly Report on Form 10-Q for the quarter ended March
31, 1999 and the Current Reports on Form 8-K dated February 5, 1999, March 1,
1999, March 26, 1999 and May 11, 1999.
5.4. FINANCIAL STATEMENTS.
The Issuer has delivered to you copies of the financial statements of
the Issuer and its consolidated subsidiaries as of and for the year ended
December 31, 1998 and the quarter ended March 31, 1999. All of said financial
statements fairly present, in all material respects, the financial position of
the Issuer and its consolidated subsidiaries as of the respective dates
specified therein and the results of their operations and cash flows for the
respective periods so specified in conformity with generally accepted accounting
principles (subject, in the case of any interim financial statements, to normal
recurring adjustments).
5.5. CAPITALIZATION.
As of the date of this Agreement, the authorized capital stock of the
Issuer consists of 100,000,000 shares of Class A common stock (the "Common
Stock"), 6,000,000 shares of Class B common stock (the "Class B Common Stock"),
75,000,000 shares of excess stock, par value $0.01 per share, and 25,000,000
shares of preferred stock, par value $0.01 per share, of which 40,263,378 shares
of Common Stock, 9,192,000 shares of 7-5/8% Series A Convertible Cumulative
Preferred Stock (the "Series A Preferred Stock") and no shares of such Class B
Common Stock or such excess stock are issued and outstanding as of May 1, 1999.
All issued and outstanding shares of capital stock have been duly authorized and
validly issued by the Issuer and are fully paid and non-assessable and none of
such shares of capital stock were issued in violation of preemptive or other
similar rights arising by operation of law, under the charter and by-laws of the
Issuer or under any agreement to which the Issuer is a party or otherwise.
Except for (i) shares of Common Stock issuable upon (1) conversion of the Series
A Preferred Stock, (2) conversion of Crescent Real Estate Equities Limited
Partnership's preferred membership interest in Metropolitan Partners LLC, (3)
exchange of units of partnership interest in the Operating Partnership (the
"Units") or (4) exercise of options under the stock option plans and/or
distribution reinvestment plans of the Issuer, (ii) shares of Class B Common
Stock issuable in connection with the acquisition of Tower Realty Trust, Inc.,
(iii) shares of preferred stock issuable upon exchange of certain Units and (iv)
excess stock issuable in exchange for the Issuer's capital stock in certain
circumstances in each case as described in the Exchange Act Reports, there are
no shares of capital stock of the Issuer reserved for any purpose and there are
no outstanding securities convertible into or exchangeable for any shares of
capital stock of the Issuer.
5.6. AUTHORIZATION, VALIDITY AND ENFORCEABILITY OF THIS AGREEMENT AND THE
REGISTRATION RIGHTS AGREEMENT.
This Agreement and the Registration Rights Agreement, as the case may
be, have been duly authorized by the Issuer and the Operating Partnership and,
assuming due authorization, execution and delivery thereof by all parties
thereto other than the Issuer and the Operating Partnership, constitute valid
and legally binding agreements of such party enforceable against such party in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the enforcement of creditors' rights
generally or general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and except
further as the enforcement of the indemnification and the contribution
provisions contained therein may be limited by federal or state securities laws
or the public policy underlying such laws.
5.7. AUTHORIZATION OF PREFERRED STOCK.
The Preferred Stock has been duly authorized by the Issuer for issuance
and sale pursuant to this Agreement and, when issued and delivered by the Issuer
pursuant to this Agreement against payment of the consideration therefor, will
be validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights arising by operation of law, under the
charter and by-laws of the Issuer or under any agreement to which the Issuer is
a party or otherwise. The Articles Supplementary will be in full force and
effect on or prior to the Closing and will comply with all applicable legal
requirements.
5.8. AUTHORIZATION OF COMMON STOCK.
The Common Stock into which the Preferred Stock is convertible has been
duly authorized and reserved for issuance by the Issuer upon conversion of the
Preferred Stock. Such Common Stock, if and when issued upon such conversion,
will be validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights arising by operation of law, under the
charter and by-laws of the Issuer or under any agreement to which the Issuer is
a party or otherwise.
5.9. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by the Issuer and the Operating
Partnership of this Agreement and the consummation of the transactions
contemplated herein will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any of their property under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, charter or by-laws, or any other agreement
or instrument to which they are bound or by which they or any of their
properties may be bound or affected, (ii) conflict with or result in a breach of
any of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or governmental authority applicable to them or
(iii) violate any provision of any statute or other rule or regulation of any
governmental authority applicable to them.
5.10. GOVERNMENTAL AUTHORIZATIONS, ETC.
No consent, approval or authorization of, or registration, filing or
declaration with, any governmental authority is required in connection with its
execution, delivery or performance by the Issuer and the Operating Partnership
of this Agreement and the consummation of the transactions contemplated herein.
5.11. LITIGATION.
Except as otherwise stated in the Exchange Act Reports, there are no
actions, suits or proceedings pending or, to the Issuer's knowledge, threatened
against or affecting the Issuer or the Operating Partnership or any of their
property in any court or before any arbitrator of any kind or before or by any
governmental authority that would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
5.12. NO DEFAULTS.
Neither the Issuer nor the Operating Partnership is in default under any
term of any agreement or instrument to which it is a party or by which it is
bound or any order, judgment, decree or ruling of any court, arbitrator or
governmental authority or in violation of any applicable law, ordinance, rule or
regulation of any governmental authority, which default or violation would,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.13. TITLE TO PROPERTY; LEASES AND MORTGAGES.
Each of the Issuer and the Operating Partnership has good and marketable
title to its properties that, individually or in the aggregate, are material to
the financial condition, results of operations or business of the Issuer and its
consolidated subsidiaries taken as a whole. All leases and mortgages that,
individually or in the aggregate, are material to the financial condition,
results of operations or business of the Issuer and its consolidated
subsidiaries taken as a whole are valid and subsisting and are in full force and
effect in all material respects, and there are no known defaults by others
individually or in the aggregate with respect to such leases and mortgages which
would reasonably be expected to have a Material Adverse Effect.
5.14. LICENSES AND APPROVALS.
Each of the Issuer and the Operating Partnership has all necessary
licenses, permits and governmental authorizations from governmental authorities
to own, lease and operate its properties and to transact its business, the
absence of which would, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
5.15. ENVIRONMENTAL MATTERS.
Except as otherwise stated in the Exchange Act Reports, and except such
violations as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, to the Issuer's knowledge after due
inquiry and investigation,
(A) neither the Issuer nor the Operating Partnership is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance or code, including any judicial or administrative order,
consent, decree of judgment, relating to pollution or protection of human health
or safety, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata), including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"),
(B) the Issuer and the Operating Partnership have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are in compliance with such requirements,
(C) there are no pending or threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Issuer or the Operating Partnership, and
(D) there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Issuer or the Operating Partnership relating to any
Hazardous Materials or the violation of any Environmental Law.
5.16. MATERIAL ADVERSE CHANGE.
Since December 31, 1998, there has been no material adverse change in
the financial condition, results of operations or business of the Issuer and its
consolidated subsidiaries taken as a whole.
5.17. PRIVATE OFFERING.
Neither the Issuer nor anyone acting on its behalf has offered the
Preferred Stock or any similar securities for sale to, or solicited any offer to
buy any of the same from, or otherwise approached or negotiated in respect
thereof with, such type or number of persons or in such manner so as to require
registration of the Preferred Stock or the underlying Common Stock under the
Securities Act of 1933, as amended (the "Securities Act"), except as
contemplated under the Registration Rights Agreement.
5.18. REIT QUALIFICATION.
Commencing with the Issuer's taxable year ended December 31, 1995, the
Issuer has been, and upon the sale of the Preferred Stock, the Issuer will
continue to be organized in conformity with the requirements for qualification
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended (the "Code"), and its proposed method of operation will enable it to
continue to meet the requirements for taxation as a real estate investment trust
under the Code.
5.19. TAX RETURNS.
The Issuer has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in which an
extension has been granted or the failure to so file would not have a Material
Adverse Effect) and has paid all taxes required to be paid in respect of the
periods covered thereby and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except, in all
cases, for any such tax, assessment, fine or penalty that is being contested in
good faith.
6. REPRESENTATIONS OF THE PURCHASERS.
(a) Each of you represents that you are acquiring the Preferred
Stock for your own account or for one or more separate investor accounts
maintained by you for investment purposes and not with a view to the
distribution thereof, provided that the disposition of your or their property
shall at all times be within your or their control, as the case may be. You
understand that the Preferred Stock and the Common Stock into which the
Preferred Stock is convertible have not been registered under the Securities Act
and may be resold only if registered pursuant to the provisions of the
Securities Act or if an exemption from such registration is available, and that
the Issuer is not required to register the Preferred Stock or such Common Stock
except as specified in the Registration Rights Agreement.
(b) Each of you and each investor account for which you are acting
as fiduciary or agent represents and warrants, and, with respect to transfers
occurring prior to (i) the date which is two years (or such stated period of
time as permitted by Rule 144(k) under the Securities Act) after the later of
the date of original issue of the Preferred Stock and the last date on which the
Issuer or any affiliate of the Issuer was the owner of such Preferred Stock (or
any predecessor thereto) and (ii) such later date, if any, as may be required by
a change in applicable law, unless, in either case, the transfer is made
pursuant to an effective registration statement under the Securities Act, each
subsequent holder of Preferred Stock, by such holder's acquisition of the
Preferred Stock, shall be deemed to have represented and warranted, that it is
an institutional investor that qualifies as an "accredited investor," as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, and agrees or shall
be deemed to agree, to notify subsequent transferees of the restrictions
referred to in clause (a) above and this clause (b).
(c) Each of you is aware that you (or any investor account on whose
behalf you are purchasing the Preferred Stock) must bear the economic risk of
investment in the Preferred Stock for an indefinite period of time, and each of
you represents and warrants that you (or such accounts) are able to bear such
risk for an indefinite period of time.
(d) Each of you (or any investor account on whose behalf you are
purchasing the Preferred Stock) acknowledges that neither the Issuer nor anyone
acting on behalf of the Issuer has made any representation to you (or any
investor account on whose behalf you are purchasing the Preferred Stock) with
respect to the Issuer or the Operating Partnership or the offering or sale of
any Preferred Stock or the Common Stock into which the Preferred Stock is
convertible other than as set forth herein or in the Exchange Act Reports, which
have been delivered to you, and upon which you (or any investor account on whose
behalf you are purchasing the Preferred Stock) are relying solely in making an
investment decision with respect to the Preferred Stock.
(e) Each of you (or any investor account on whose behalf you are
purchasing the Preferred Stock) represents and warrants that, in the normal
course of business, you and any such investor account invest in or purchase
securities similar to the Preferred Stock, and you and any such investor account
have such knowledge and experience in financial and business matters that you
and any such investor account are capable of evaluating the merits and risks of
purchasing the Preferred Stock.
(f) Each of you (or any investor account on whose behalf you are
purchasing the Preferred Stock) represents and warrants that you and any such
investor account have had access to such financial and other information
concerning the Issuer and its subsidiaries as you and any such investor account
have deemed necessary in connection with making an investment decision to
purchase the Preferred Stock.
7. INDEMNIFICATION.
The Issuer and the Operating Partnership agree, jointly and severally,
to indemnify, pay and hold you and your respective officers, directors and
affiliates and their executive officers and directors (each, an "Indemnified
Party") harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits and claims, and all reasonable
out-of-pocket costs, expenses and disbursements, of any kind or nature
whatsoever (including, without limitation, reasonable fees and disbursements of
counsel for such Indemnified Parties) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of, or in connection with the preparation for a
defense of, any investigation, litigation or proceeding arising out of, related
to, or in connection with, this Agreement or the transactions contemplated
herein; provided, however, that neither the Issuer nor the Operating Partnership
shall have any obligation to any Indemnified Party hereunder with respect to
Indemnified Liabilities arising from (a) the gross negligence or willful
misconduct of such Indemnified Party or (b) such Indemnified Party not being
authorized or permitted to enter into this Agreement or to consummate the
transactions contemplated herein.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement, the issuance of the Preferred Stock,
the transfer by you of your Preferred Stock, and any conversion or redemption of
your Preferred Stock. In addition, all statements contained in any certificate
delivered by or on behalf of the Issuer or the Operating Partnership pursuant to
this Agreement shall be deemed representations and warranties of the Issuer or
the Operating Partnership, as the case may be, under this Agreement. Subject to
the preceding sentence, this Agreement, the Articles Supplementary, the
certificates representing the Preferred Stock and the Registration Rights
Agreement embody the entire agreement and understanding among each of you, the
Issuer and the Operating Partnership and supersede all prior agreements and
understandings relating to the subject matter hereof.
9. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address
specified for such communications in Schedule A, or at such other address as you
or it shall have specified to the Issuer in writing,
(ii) if to any other holder of Preferred Stock, to such holder at
such address as such other holder shall have specified to the Issuer in writing,
or
(iii) if to the Issuer or the Operating Partnership, to the Issuer
at its address set forth at the beginning hereof to the attention of the
President of the Issuer, or at such other address as the Issuer shall have
specified to the holders of the Preferred Stock in writing.
Notices under this Section 9 will be deemed given only when actually received.
10. PAYMENTS ON PREFERRED AND COMMON STOCK.
10.1. HOME OFFICE PAYMENT.
So long as you or your nominee shall be the holder of any certificate
representing shares of Preferred Stock or Common Stock acquired upon any
conversion or redemption of any share of Preferred Stock, the Issuer will make
all payments becoming due and payable on such certificate by the method and at
the address specified for such purpose below your name in Schedule A attached
hereto, or by such other reasonable method or at such other address as you shall
have from time to time specified to the Issuer in writing for such purpose,
without the presentation or surrender of certificates representing such shares,
except that upon redemption or conversion of any shares of Preferred Stock, the
surrender of the certificates representing such shares shall, as provided in the
Articles Supplementary, be a condition of payment in cash or shares of Common
Stock, as the case may be, to the order of the person whose name appears on the
certificates representing such shares.
11. CONFIDENTIAL INFORMATION.
For the purposes of this Section 11, "CONFIDENTIAL INFORMATION" means
information delivered to you by or on behalf of the Issuer, the Operating
Partnership or any of their respective affiliates in connection with the
transactions contemplated by or otherwise pursuant to this Agreement that is
proprietary in nature and that was clearly marked or labeled or otherwise
adequately identified in writing when received by you as being confidential,
provided that such term does not include information that (a) was publicly known
prior to the time of such disclosure, (b) subsequently becomes publicly known
through no act or omission by you or any person acting on your behalf, (c)
otherwise becomes known to you other than through the Issuer or Operating
Partnership's disclosure to you or (d) constitutes financial statements that are
otherwise publicly available. You will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by you in good
faith to protect confidential information of third parties delivered to you,
provided that you may deliver or disclose Confidential Information to (i) your
directors, officers, employees, agents, attorneys and affiliates (to the extent
such disclosure reasonably relates to the administration of the investment
represented by your Preferred Stock), (ii) your financial advisors and other
professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section 11, (iii)
any other holder of Preferred Stock, (iv) any institutional "accredited
investor" to which you sell or offer to sell your Preferred Stock (if such
person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 11), (v) any federal
or state or foreign regulatory authority having jurisdiction over you or any
affiliate or (vi) any other person to which such delivery or disclosure may be
necessary or appropriate (w) to effect compliance with any law, rule, regulation
or order applicable to you, (y) in response to any subpoena or other legal
process or (z) in connection with any litigation to which you are a party. Each
holder of Preferred Stock, by its acceptance thereof, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 11 as
though it were a party to this Agreement. On request by the Issuer in connection
with the delivery to any holder of Preferred Stock of information requested by
such holder (other than a holder that is a party to this Agreement or its
nominee), such holder will enter into an agreement with the Issuer embodying the
provisions of this Section 11.
12. MISCELLANEOUS.
12.1. SUCCESSORS AND ASSIGNS.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of Preferred Stock or Common Stock into which Preferred Stock was
converted), whether so expressed or not.
12.2. SEVERABILITY.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the fullest extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
12.3. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
12.4. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York without giving effect to any provisions
relating to conflicts of laws.
If you are in agreement with the foregoing, please sign this Agreement
on the accompanying counterpart and return it to the Issuer, whereupon the
foregoing shall become a binding agreement among you, the Issuer and the
Operating Partnership.
Very truly yours,
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Executive Vice President
and Chief Financial Officer
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its General Partner
By: /s/ Michael Maturo
--------------------------------
Name:
Title: Executive Vice President
and Chief Financial Officer
The foregoing is hereby agreed to
as of the date hereof.
STICHTING PENSIOENFONDS ABP
By: /s/ Jean Frijns
--------------------------------
Name:
Title: Chairman and
Chief Investment Officer
By: /s/ Wim Borgdorff
--------------------------------
Name:
Title: Managing Director -
Structured Investments
THE TRAVELERS INSURANCE COMPANY
By: /s/ Douglas D. Fitton
--------------------------------
Name:
Title: Vice President
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ Michael Watson
--------------------------------
Name:
Title: Vice President
THE STANDARD FIRE INSURANCE COMPANY
By: /s/ Douglas D. Fitton
--------------------------------
Name:
Title: Vice President
TRAVELERS CASUALTY AND SURETY COMPANY
By: /s/ Douglas D. Fitton
--------------------------------
Name:
Title: Vice President
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Shares of Preferred
Name and Address of Purchaser Stock to be Issued
- ----------------------------- -------------------
Stichting Pensioenfonds ABP 4,000,000
Chase Manhattan Bank, New York
ABA #021000021
Credit Account #920-1-033231
for further credit to:
ABN AMRO Bank N.V. a/c Global Custody Dept.
Breda, The Netherlands
Account #0281170
The Travelers Insurance Company 900,000
One Tower Square
Hartford, Connecticut 06183
Home Office Payment Information:
Travelers Private Placement Account
Chase Manhattan Bank
ABA #021 0000 21
Credit Account #9102587434
The Travelers Life and Annuity Company 100,000
One Tower Square
Hartford, Connecticut 06183
Home Office Payment Information:
Travelers Private Placement Account
Chase Manhattan Bank
ABA #021 0000 21
Credit Account #9102587434
The Standard Fire Insurance Company 120,000
One Tower Square
Hartford, Connecticut 06183
Home Office Payment Information:
Travelers Private Placement Account
Chase Manhattan Bank
ABA #021 0000 21
Credit Account #9102587434
Shares of Preferred
Name and Address of Purchaser Stock to be Issued
- ----------------------------- -------------------
Travelers Casualty and Surety Company 880,000
One Tower Square ---------
Hartford, Connecticut 06183
Home Office Payment Information:
Travelers Private Placement Account
Chase Manhattan Bank
ABA #021 0000 21
Credit Account #9102587434
6,000,000
=========
Notices to Stichting Pensioenfonds ABP
- --------------------------------------
Stichting Pensioenfonds ABP
Oude Lindestraat 70 - 6401 DJ Heerlen - The Netherlands
Attention: Leo Palmen
Telephone: 31-455-79-21-36
with a copy to:
ABP Investments (US)
450 Lexington Avenue, Suite 1800
New York, New York 10017
Atttention: Barden Gale
Telephone: (212) 338-0800 ext. 518
Notices to each Travelers Affiliated Purchaser
- ----------------------------------------------
The Travelers Insurance Company
One Tower Square
Hartford, Connecticut 06183
Attention: Heidi Rajala
Telephone: (860) 954-8353
with a copy to:
Travelers Investment Group
388 Greenwich Street, 36th Floor
New York, New York 10013
Attention: Mike Watson
Telephone: (212) 816-7277
EXHIBIT 1
FORM OF ARTICLES SUPPLEMENTARY
EXHIBIT 4.4
FORM OF OPINION OF COUNSEL
TO THE ISSUER
EXHIBIT 4.5
FORM OF REGISTRATION RIGHTS AGREEMENT