Exhibit 10.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of June 2, 1999 between RECKSON ASSOCIATES REALTY CORP., a
Maryland corporation (the "Company") and STICHTING PENSIOENFONDS ABP, a Dutch
pension fund, THE TRAVELERS INSURANCE COMPANY, a Connecticut insurance company,
THE TRAVELERS LIFE AND ANNUITY COMPANY, a Connecticut insurance company, THE
STANDARD FIRE INSURANCE COMPANY, a Connecticut insurance company, and TRAVELERS
CASUALTY AND SURETY COMPANY, a Connecticut insurance company (the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated May
27, 1999 (the "Purchase Agreement"), between the Company, as issuer of the
Series B Convertible Cumulative Preferred Stock (the "Preferred Securities"),
and the Initial Purchasers, which provides for, among other things, the sale by
the Company to the Initial Purchasers of the Preferred Securities. In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide to the Initial Purchasers and its direct and indirect
transferees the registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
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defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section
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3 hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under
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the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
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which banking institutions in The City of New York are authorized or required by
law, executive order or regulation to remain closed.
"Common Stock" means the Class A common stock of the Company initially
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issuable upon conversion or, in certain cases, redemption of the Preferred
Securities.
"Company" shall have the meaning set forth in the preamble to this
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Agreement and also includes the Company's successors and permitted assigns.
"Closing Time" shall mean the date of Closing, as defined in the Purchase
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Agreement.
"Effectiveness Period" shall have the meaning set forth in Section 2(a)
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hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Holder" shall mean the Initial Purchasers, for so long as it owns any
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Registrable Securities, and each of its respective successors, assigns and
direct and indirect transferees who become holders of record of Registrable
Securities.
"Initial Purchasers" shall have the meaning set forth in the preamble to
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this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(m) hereof.
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"Issue Date" shall mean June 2, 1999, the date of original issuance of the
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Preferred Securities.
"Liquidated Damages" shall have the meaning set forth in Section 2(c)
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hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
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liquidation preference of outstanding Preferred Securities.
"Operating Partnership" shall mean Reckson Operating Partnership, L.P., a
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Delaware limited partnership.
"Person" shall mean an individual, partnership, corporation, trust or
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unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf Registration
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Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and, in each case, including all documents incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
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this Agreement.
"Records" shall have the meaning set forth in Section 3(m) hereof.
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"Registrable Securities" shall mean the Securities; provided, however, that
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Securities shall cease to be Registrable Securities when the earlier of the
following occurs (i) a Shelf Registration Statement with respect to such
Securities for the resale thereof shall have been declared effective under the
Securities Act and such Securities shall have been disposed of pursuant to such
Shelf Registration Statement, (ii) such Securities shall have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or are eligible to be sold without
restriction as contemplated by Rule 144(k) or (iii) such Securities shall have
ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Securities in
accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel for all
underwriters or Holders as a group in connection with blue sky qualification of
any of the Registrable Securities) and compliance with the rules of the NASD,
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Shelf Registration Statement, any
Prospectus and any amendments or supplements thereto, and in preparing or
assisting in preparing, printing and distributing any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) the fees
and disbursements of counsel for the Company and of the independent certified
public accountants of the Company, including the expenses of any "cold comfort"
letters required by or incident to the performance of and compliance with this
Agreement, and (vi) the reasonable fees and expenses of any special experts
retained by the Company in connection with the Shelf Registration Statement.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
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period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities" shall mean the Preferred Securities and the Common Stock.
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"Securities Act" shall mean the Securities Act of 1933, as amended from
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time to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
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2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
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of the Company pursuant to the provisions of Section 2(a) hereof which covers
all of the Registrable Securities on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
2. Registration Under the Securities Act.
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(a) Shelf Registration. The Company shall file or cause to be filed,
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on or prior to December 2, 1999, a Shelf Registration Statement providing for
the sale by the Holders of all of the Registrable Securities and shall use its
best efforts to have such Shelf Registration Statement declared effective by the
SEC as promptly as practicable after filing thereof. No Holder of Registrable
Securities shall be entitled to include any of its Registrable Securities in any
Shelf Registration pursuant to this Agreement unless and until such Holder
agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company in writing, within 15
days after receipt of a request therefor, such information as the Company may,
after conferring with counsel with regard to information relating to Holders
that would be required by the SEC to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein. Each Holder as
to which any Shelf Registration is being effected agrees to furnish to the
Company all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company agrees to use its best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus usable for
resales during the Rule 144(k) Period (subject to extension pursuant to the last
paragraph of Section 3 hereof), or for such shorter period which will terminate
when all of the Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or cease to be Registrable
Securities (the "Effectiveness Period"); provided, however, that for 60 days or
less (whether or not consecutive) in any twelve-month period, the Company shall
be permitted to suspend sales of Securities if the Shelf Registration Statement
is no longer effective or the Prospectus usable for resales due to circumstances
relating to pending developments, public filings with the SEC and similar
events, or because the Prospectus includes an untrue statement of a material
fact or omits to state a material fact necessary in order to make statements
therein, in the light of the circumstances under which they were made, not
misleading. The Company will, in the event a Shelf Registration Statement is
declared effective, provide to each Holder a reasonable number of copies of the
Prospectus which is a part of the Shelf Registration Statement, notify each such
Holder when the Shelf Registration Statement has become effective and take such
other actions as are required to permit unrestricted resales of the Registrable
Securities. The Company further agrees to supplement or amend the Shelf
Registration Statement if and as required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Securities copies of any such supplement
or amendment promptly after its being used or filed with the SEC.
(b) Expenses. The Company, as issuer of the Securities, shall pay all
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Registration Expenses in connection with any Shelf Registration Statement filed
pursuant to Section 2(a) hereof and will reimburse any single counsel designated
in writing by the Majority Holders to act as counsel for the Holders of the
Registrable Securities in connection with a Shelf Registration Statement, which
other counsel shall be reasonably satisfactory to the Company. Except as
provided herein, each Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(c) Effective Shelf Registration Statement. A Shelf Registration
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Statement will not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant to such
Shelf Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Shelf Registration Statement will be deemed not to have been effective
during the period of such interference, until the offering of Registrable
Securities pursuant to such Shelf Registration Statement may legally resume. The
Company will be deemed not to have used its reasonable best efforts to cause a
Shelf Registration Statement to become, or to remain, effective during the
requisite period if it voluntarily takes any action that would result in any
such Shelf Registration Statement not being declared effective or that would
result in the Holders of Registrable Securities covered thereby not being able
to offer and sell such Registrable Securities during that period, unless such
action is required by applicable law.
(d) Liquidated Damages. In the event that:
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(i) a Shelf Registration Statement is not filed with the SEC on
or prior to December 2, 1999, then liquidated damages ("Liquidated Damages")
shall accumulate on the liquidation preference of the Preferred Securities at a
rate of 0.25% per annum;
(ii) a Shelf Registration Statement is not declared effective by
the SEC on or prior to the 90th day after the date such Shelf Registration
Statement was initially filed with the SEC, then Liquidated Damages shall
accumulate on the liquidation preference of the Preferred Securities at a rate
of 0.25% per annum; or
(iii) a Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective or the Prospectus
usable for resales (A) at any time prior to the expiration of the Effectiveness
Period and (B) if related to corporate developments, public filings with the SEC
or similar events or to correct a material misstatement or omission in the
Prospectus contained in the Shelf Registration Statement, for more than 60 days
(whether or not consecutive) in any twelve-month period, then, following the day
or 60th day, as the case may be, such Shelf Registration Statement ceases to be
effective or the Prospectus usable for resales, Liquidated Damages shall
accumulate on the liquidation preference of the Preferred Securities at a rate
of 0.25% per annum;
provided, however, that the Liquidated Damages rate on the liquidation
preference of the Preferred Securities may not exceed in the aggregate 0.25% per
annum; provided, further, however, that (1) upon the filing of a Shelf
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of a Shelf Registration Statement (in the case of clause (ii)
above), or (3) upon such time as the Shelf Registration Statement which had
ceased to remain effective or the Prospectus usable for resales again becomes
effective and usable for resales (in the case of clause (iii) above), Liquidated
Damages on the liquidation preference of the Preferred Securities as a result
thereof shall cease to accumulate.
Any amounts of Liquidated Damages due pursuant to Section 2(d)(i),
(ii) or (iii) above will be payable in cash on the next succeeding January 31,
April 30, July 31 or October 31, as the case may be, to Holders on the relevant
record dates for the payment of distributions.
(e) Specific Enforcement. Without limiting the remedies available to
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the Holders, the Company acknowledges that any failure by it to comply with its
obligations under Section 2(a) hereof may result in material irreparable injury
to the Holders for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, any Holder may obtain such relief as may be required
to specifically enforce the Company's obligations under Section 2(a) hereof.
3. Registration Procedures. In connection with the obligations of the
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Company with respect to the Shelf Registration Statement pursuant to Section
2(a) hereof, the Company shall use its best efforts to:
(a) prepare and file with the SEC a Shelf Registration Statement as
prescribed by Section 2(a) hereof within the relevant time period specified
in Section 2(a) hereof on the appropriate form under the Securities Act,
which form shall (i) be selected by the Company, (ii) be available for the
sale of the Registrable Securities by the selling Holders thereof, and
(iii) comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the
SEC to be filed therewith; the Company shall use its best efforts to cause
such Shelf Registration Statement to become effective and remain effective
and the Prospectus usable for resales in accordance with Section 2 hereof;
provided, however, that, before filing any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto, the Company shall
furnish to and afford the Holders of the Registrable Securities covered by
such Shelf Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed; and the
Company shall not file any Shelf Registration Statement or Prospectus or
any amendments or supplements thereto in respect of which the Holders must
be afforded an opportunity to review prior to the filing of such document,
other than filings required under the Exchange Act, if the Majority
Holders, their counsel or the managing underwriters, if any, shall
reasonably object in a timely manner;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep
such Shelf Registration Statement effective for the Effectiveness Period,
subject to the proviso contained in the second paragraph in Section 2(a),
and cause each Prospectus to be supplemented, if so determined by the
Company or requested by the SEC, by any required prospectus supplement and
as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the Securities Act, and comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by a Shelf Registration Statement
during the Effectiveness Period in accordance with the intended method or
methods of distribution by the selling Holders thereof described in this
Agreement;
(c) (i) notify each Holder of Registrable Securities included in the
Shelf Registration Statement, at least three Business Days prior to filing,
that a Shelf Registration Statement with respect to the Registrable
Securities is being filed and advising such Holder that the distribution of
Registrable Securities will be made in accordance with the method selected
by the Majority Holders, (ii) furnish to each Holder of Registrable
Securities included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each
preliminary prospectus, and any amendment or supplement thereto, and such
other documents as such Holder or underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the Registrable
Securities and (iii) consent to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of Registrable
Securities included in the Shelf Registration Statement in connection with
the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
(d) register or qualify the Registrable Securities under all
applicable state securities or "blue sky" laws of such jurisdictions by the
time the applicable Shelf Registration Statement is declared effective by
the SEC as any Holder of Registrable Securities covered by a Shelf
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request in writing in advance of
such date of effectiveness, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder and
underwriter to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation or as
a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general
consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not then so subject;
(e) promptly notify each Holder of Registrable Securities, their
counsel and the managing underwriters, if any, and promptly confirm such
notice in writing (i) when a Shelf Registration Statement has become
effective and when any post-effective amendments thereto become effective,
(ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Shelf Registration Statement or Prospectus
or for additional information after the Shelf Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Shelf
Registration Statement or the qualification of the Registrable Securities
in any jurisdiction described in Section 3(d) hereof or the initiation of
any proceedings for that purpose, (iv) if, between the effective date of a
Shelf Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any purchase agreement, securities sales agreement or
other similar agreement cease to be true and correct in all material
respects, (v) of the happening of any event or the failure of any event to
occur or the discovery of any facts, during the Effectiveness Period, which
makes any statement made in a Shelf Registration Statement or the related
Prospectus untrue in any material respect or which causes such Shelf
Registration Statement or Prospectus to omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) of the
reasonable determination of the Company that a post-effective amendment to
the Shelf Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of
the Shelf Registration Statement at the earliest possible moment;
(g) furnish to each Holder of Registrable Securities included within
the coverage of a Shelf Registration Statement, without charge, at least
one conformed copy of the Shelf Registration Statement relating to such
Shelf Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends
and registered in such names as the selling Holders or the underwriters may
reasonably request at least two Business Days prior to the closing of any
sale of Registrable Securities pursuant to the Shelf Registration
Statement;
(i) promptly after the occurrence of any event specified in Section
3(e)(ii), 3(e)(iii), 3(e)(v) (subject to a 60 day grace period within any
twelve-month period) or 3(e)(vi) hereof, prepare a supplement or
post-effective amendment to the Shelf Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, such Prospectus will not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Company shall notify
each Holder to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder hereby agrees to
suspend use of the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any document which is to
be incorporated by reference into a Shelf Registration Statement or a
Prospectus after the initial filing of a Shelf Registration Statement,
provide a reasonable number of copies of such document to the Holders and
make such of the representatives of the Company as shall be reasonably
requested by the Holders of Registrable Securities or the Initial
Purchasers on behalf of such Holders available for discussion of such
document;
(k) enter into such agreements (including underwriting agreements) as
are customary in underwritten offerings and take all such other appropriate
actions in connection therewith as are reasonably requested by the Holders
of at least 25% in aggregate liquidation preference of the Registrable
Securities in order to expedite or facilitate the registration or the
disposition of the Registrable Securities;
(l) whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, if
requested by the Holders of at least 25% in aggregate liquidation
preference of the Registrable Securities covered thereby: (i) make such
representations and warranties to Holders of such Registrable Securities
and the underwriters (if any), with respect to the business of the Company
and its subsidiaries as then conducted and with respect to the Shelf
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to
the Company and updates thereof (which may be in the form of a reliance
letter) in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in aggregate
liquidation preference of the Registrable Securities being sold, addressed
to each selling Holder and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such underwriters (it
being agreed that the matters to be covered by such opinion may be subject
to customary qualifications and exceptions); (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory
to the managing underwriters from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by
such underwriters in accordance with Statement on Auditing Standards No.
72; and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable than
those set forth in Section 4 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate liquidation
preference of Registrable Securities covered by such Shelf Registration
Statement and the managing underwriters) customary for such agreements with
respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders); and
in the case of an underwritten registration, the above requirements shall
be satisfied at each closing under the related underwriting agreement or as
and to the extent required thereunder;
(m) make reasonably available for inspection by any selling Holder of
Registrable Securities who certifies to the Company that it has a current
intention to sell Registrable Securities pursuant to the Shelf
Registration, any underwriter participating in any such disposition of
Registrable Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during the Company's
normal business hours, all financial and other records, pertinent
organizational and operational documents and properties of the Company and
its subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, trustees and employees of the
Company and its subsidiaries to supply all relevant information in each
case reasonably requested by any such Inspector in connection with such
Shelf Registration Statement; records and information which the Company, in
good faith, to be confidential and any Records and information which it
notifies the Inspectors are confidential shall not be disclosed to any
Inspector except where (i) the disclosure of such Records or information is
necessary to avoid or correct a material misstatement or omission in such
Shelf Registration Statement, (ii) the release of such Records or
information is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or is necessary in connection with any action,
suit or proceeding or (iii) such Records or information previously has been
made generally available to the public; each selling Holder of such
Registrable Securities will be required to agree in writing that Records
and information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such is made
generally available to the public through no fault of an Inspector or a
selling Holder; and each selling Holder of such Registrable Securities will
be required to further agree in writing that it will, upon learning that
disclosure of such Records or information is sought in a court of competent
jurisdiction, or in connection with any action, suit or proceeding, give
notice to the Company and allow the Company at its expense to undertake
appropriate action to prevent disclosure of the Records and information
deemed confidential;
(n) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make
generally available to its securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the end of any twelve-month period (or 90 days
after the end of any twelve-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of a Shelf Registration Statement, which
statements shall cover said twelve-month periods, provided that the
obligations under this Section 3(n) shall be satisfied by the timely filing
of quarterly and annual reports on Forms 10-Q and 10-K under the Exchange
Act;
(o) cooperate with each seller of Registrable Securities covered by a
Shelf Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective counsel
in connection with any filings required to be made with the NASD;
(p) take all other steps necessary to effect the registration of the
Registrable Securities covered by a Shelf Registration Statement
contemplated hereby; and (q) the Company may require each seller of
Registrable Securities as to which any registration is being effected to
furnish to it such information regarding such seller as may be required by
the staff of the SEC to be included in a Shelf Registration Statement; the
Company may exclude from such registration the Registrable Securities of
any seller who unreasonably fails to furnish such information within a
reasonable time after receiving such request; and the Company shall have no
obligation to register under the Securities Act the Registrable Securities
of a seller who so fails to furnish such information.
Each Holder agrees that, upon receipt of any notice from the Company
of the occurrence of any event specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v)
or 3(e)(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Shelf Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies in such Holder's possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Shelf Registration Statement, the Company
shall use its best efforts to file and have declared effective (if an amendment)
as soon as practicable after the resolution of the related matters an amendment
or supplement to the Shelf Registration Statement and related Prospectus and
shall extend the period during which such Shelf Registration Statement is
required to be maintained effective and the Prospectus usable for resales
pursuant to this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including the date when
the Company shall have made available to the Holders (x) copies of the
supplemented or amended Prospectus necessary to resume such dispositions or (y)
the Advice.
4. Indemnification and Contribution. (a) The Company and the Operating
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Partnership hereby agree, jointly and severally, to indemnify and hold harmless
each Holder, each underwriter who participates in an offering of the Registrable
Securities, each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in a Shelf
Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact required to be stated therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that (subject to Section 4(d) hereof) such
settlement is effected with the prior written consent of the Company
and the Operating Partnership; and
(iii) against any and all expenses whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
such Holder), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) of this
Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company and the
Operating Partnership by such Holder or underwriter for use in the Shelf
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(b) The Initial Purchasers and each Holder or underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
trustees and officers (including each officer of the Company who signed the
Shelf Registration Statement), and the Operating Partnership and each Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense whatsoever described in the indemnity contained in
Section 4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use in such
Shelf Registration Statement (or any amendment thereto) or such Prospectus (or
any amendment or supplement thereto); provided, however, that no Holder shall be
liable for any claims hereunder in excess of the amount of net proceeds received
by such Holder from the sale of Registrable Securities.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have under this Section 4 to the extent that it is not materially
prejudiced by such failure as a result thereof, and in any event shall not
relieve it from liability which it may have otherwise on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 4(a)
or (b) above, counsel to the indemnified parties shall be selected by such
parties. An indemnifying party may participate at its own expense in the defense
of such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to local counsel),
separate from their own counsel, for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have validly requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement set forth in this Section 4 is
for any reason held to be unenforceable by an indemnified party although
applicable in accordance with its terms, the Company and the Operating
Partnership, on the one hand, and the Holders, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company, the
Operating Partnership and the Holders, as incurred; provided, however, that no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. As between the Company and
the Operating Partnership, on the one hand, and the Holders, on the other hand,
such parties shall contribute to such aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement in
such proportion as shall be appropriate to reflect the relative fault of the
Company and the Operating Partnership, on the one hand, and the Holders, on the
other hand, with respect to the statements or omissions which resulted in such
loss, liability, claim, damage or expense, or action in respect thereof, as well
as any other relevant equitable considerations. The relative fault of the
Company and the Operating Partnership, on the one hand, and of the Holders, on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Operating Partnership, on the one hand, or by or on behalf of the
Holders, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the Holders of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 4, each Affiliate of a
Holder, and each director, officer and employee and Person, if any, who controls
a Holder or such Affiliate within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Holder, and each trustee
and officer of the Company and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company and the
Operating Partnership.
5. Participation in an Underwritten Registration. No Holder may
---------------------------------------------
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities
-------------------------
covered by the Shelf Registration Statement who desire to do so may sell the
Securities covered by such Shelf Registration in an underwritten offering,
subject to the provisions of Section 3(l) hereof. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate liquidation preference of the Registrable Securities included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. Miscellaneous.
-------------
(a) Rule 144. For so long as the Company is subject to the reporting
--------
requirements of Section 13 or 15 of the Exchange Act and any Registrable
Securities remain outstanding, the Company will file the reports required to be
filed by it under the Securities Act and Section 13(a) or 15(d) of the Exchange
Act and the rules and regulations adopted by the SEC thereunder; provided,
however, that if the Company ceases to be so required to file such reports, it
will, upon the request of any Holder of Registrable Securities (a) make publicly
available such information as is necessary to permit sales of its securities
pursuant to Rule 144 under the Securities Act and (b) take such further action
that is reasonable in the circumstances, in each case, to the extent required
from time to time to enable such Holder to sell its Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any similar rules or regulations hereafter adopted
by the SEC. Upon the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into, and
--------------------------
will not enter into, any agreement which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority in aggregate liquidation preference of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
departure; provided that no amendment, modification or supplement or waiver or
consent to the departure with respect to the provisions of Section 4 hereof
shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder of Registrable Securities.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended,
without the consent of any Holder of Registrable Securities, by written
agreement signed by the Company, the Operating Partnership and the Initial
Purchasers, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company, the Operating Partnership and the
Initial Purchasers to the extent that any such amendment, modification,
supplement, waiver or consent is, in their reasonable judgment, necessary or
appropriate to comply with applicable law (including any interpretation of the
Staff of the SEC) or any change therein and (iii) to the extent any provision of
this Agreement relates to the Initial Purchasers, such provision may be amended,
modified or supplemented, and waivers or consents to departures from such
provisions may be given, by written agreement signed by the Initial Purchasers,
the Operating Partnership and the Company.
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company or the Operating Partnership, initially at the Company's address set
forth in the Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or amended
charter of the Company. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder shall be a third party
-------------------------
beneficiary of the agreements made hereunder among the Company, the Operating
Partnership and the Initial Purchasers, and the Initial Purchasers shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) 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.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company or its Affiliates. Whenever the
------------------------------------------------
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
any Affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Scott Rechler
---------------------------------------
Name:
Title: President
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its General Partner solely with respect
to Section 4 hereof
By: /s/ Scott Rechler
---------------------------------------
Name:
Title: President
CONFIRMED AND ACCEPTED,
as of the date first
above written:
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