Exhibit 10.6B
SUPPLEMENTAL AGREEMENT
TO
OPERATING AGREEMENT
OF
RECKSON STRATEGIC VENTURE PARTNERS, LLC
This SUPPLEMENTAL AGREEMENT TO OPERATING AGREEMENT OF RECKSON
STRATEGIC VENTURE PARTNERS, LLC (this "SUPPLEMENTAL AGREEMENT") is made and
entered into as of the 24th day of April, 1998 by and among RSVP HOLDINGS,
LLC, a Delaware limited liability company ("MANAGING MEMBER"), having an
address at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Xxxx X.
Xxxxxx, XXXXX XXXXXX REAL ESTATE SECURITIES INC., a Delaware corporation
("PWRES"), having an address at 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxx, and STRATUM REALTY
PARTNERS, LLC, a Delaware limited liability company ("STRATUM"), having an
address at 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxx. All capitalized terms used and not otherwise
defined herein shall have the meaning ascribed thereto in the Original
Operating Agreement (as defined below).
W I T N E S S E T H
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WHEREAS, Managing Member and PWRES have entered into that certain
Operating Agreement of Reckson Strategic Venture Partners, LLC ("RSVP") dated
as of March 5, 1998 (the "ORIGINAL OPERATING AGREEMENT"; as supplemented
hereby, and as the same may hereafter be amended, restated, supplemented or
otherwise modified from time to time, the "OPERATING AGREEMENT"); and
WHEREAS, under the Original Operating Agreement, PWRES was the sole
Class A Member of RSVP with an initial Capital Commitment of $200,000,000;
and
WHEREAS, pursuant to and in accordance with Section 10.01(B) of
the Original Agreement, PWRES has assigned to Stratum, and Stratum has
assumed, a portion of PWRES' Interest in RSVP representing a Class A Member
Interest in RSVP with an unfunded Capital Commitment of $50,000,000 (the
"TRANSFERRED INTEREST") by that certain Assignment and Assumption of Member
Interest by and between PWRES and Stratum dated as of even date herewith; and
WHEREAS, pursuant to Section 10.02 of the Original Operating
Agreement, Stratum desires to exercise its right to become a Substitute Non-
Managing Member of RSVP, and pursuant to Section 10.01(A) of the Original
Operating Agreement, the parties hereto desire to memorialize the transfer of
the Transferred Interest to Stratum and the admission of Stratum as a Member
of RSVP.
NOW THEREFORE, in consideration of the matters described in the
foregoing recitals, and the mutual covenants herein contained and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby conclusively acknowledged, and intending to be bound hereby, the
parties hereto, constituting all of the Members of RSVP, do hereby
supplement and amend the Original Operating Agreement as follows:
1. Admission of Stratum as Member of RSVP; Representations of
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PWRES and Managing Member. Pursuant to Section 10.02
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of the Original Operating Agreement, Stratum is hereby
admitted as a Substitute Non-Managing Member that is a Class A Member of
RSVP, effective as of the date hereof. For all purposes under the Operating
Agreement, Stratum shall be and hereby is deemed to be a Member of RSVP, a
Class A Member of RSVP and a Non-Managing Member of RSVP from and after the
date hereof. Stratum, by its execution and delivery of this Supplemental
Agreement, hereby adopts and agrees to be bound by all of the terms and
conditions of the Operating Agreement, and shall be, and hereby is, deemed to
have executed, adopted and acknowledged the Operating Agreement in accordance
with Section 10.02(B) thereof. Managing Member and PWRES each hereby
represents to Stratum that RSVP has been duly formed under the laws of the
State of Delaware and is validly existing, that the Operating Agreement, as
supplemented and amended hereby, has not been otherwise modified or amended
and is in full force and effect, and that no default on the part of any
Member thereunder, nor any event that with the passage of time or the giving
of notice or both would constitute such a default, has occurred and is
continuing.
2. Capital Commitments and Net Adjusted Capital Contributions.
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As of the date hereof, the unfunded Capital Commitments and the
Net Adjusted Capital Contributions of the Members of RSVP are as set forth on
Schedule A attached hereto and by this reference made a part hereof.
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3. Capital Contributions by Class A Members.
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(a) Subject to the terms of Section 3(b) below, any call for
Capital Contributions from the Class A Members (including any call for
Capital Contributions from both Class A Members and Class B Members) pursuant
to and in accordance with Section 4.03 of the Operating Agreement shall be
funded by the Class A Members pro rata in accordance with their respective
total (i.e., funded and unfunded) Capital Commitments.
(b) Notwithstanding anything to the contrary contained in
paragraph (a) above, by mutual agreement of PWRES and Stratum, Stratum may
fund that portion of any call for Capital Contributions referenced in
paragraph (a) above that would otherwise have been allocable to PWRES under
paragraph (a) above (but for the operation of this paragraph (b)), in
addition to that portion of such call allocable to Stratum, until Stratum has
fully funded its $50,000,000 Capital Commitment. If PWRES and Stratum shall
mutually elect to exercise their rights under the preceding sentence, they
shall give notice of such election to Managing Member at the time of funding
of the applicable call for Capital Contributions, and from and after the date
on which Stratum shall have fully funded its Capital Commitment, PWRES shall
fund that portion of any call for Capital Contributions referenced in
paragraph (a) above that would otherwise have been allocable to Stratum under
paragraph (a) above (but for the operation of this paragraph (b)), in
addition to that portion of such call allocable to PWRES. In no event shall
this paragraph (b) operate to require either of Stratum or PWRES to make any
Capital Contribution to the extent that making the same would result in the
total funded Capital Contributions of Stratum or PWRES, as the case may be,
to exceed such Person's Capital Commitment.
4. Distributions to Class A Members
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(a) Any distribution of Net Investment Revenues to the Class A
Members pursuant to Section 6.01 of the Operating Agreement shall be
allocated among the Class A Members in the following manner:
(1) Each distribution of Class A Basic Return shall be distributed
among the Class A Members pro rata in accordance with their
then respective total accrued but unpaid Class A Basic Return.
(2) Each distribution of Class A Additional Return shall be
distributed among the Class A Members pro rata in accordance
with their then respective total accrued but unpaid Class A
Additional Return.
(3) Each distribution in return of capital shall be distributed
among the Class A Members pro rata in accordance with their
then respective outstanding Net Adjusted Capital Contributions.
(b) Any distribution of Capital Events Proceeds for any Investment
to the Class A Members pursuant to Section 6.01 of the Operating Agreement
shall be allocated among the Class A Members in the following manner:
(1) Each distribution of Allocated Accrued Class A Basic Return
shall be distributed among the Class A Members pro rata in
accordance with their then respective outstanding Allocated
Accrued Class A Basic Returns for such Investment.
(2) Each distribution in return of capital in reduction of
Allocated Net Adjusted Capital Contributions shall be
distributed among the Class A Members pro rata in accordance
with their then respective Allocated Net Adjusted Capital
Contributions for such Investment.
(3) Each distribution of Allocated Accrued Class A Additional
Return shall be distributed among the Class A Members pro rata
in accordance with their then respective outstanding Allocated
Accrued Class A Additional Returns for such Investment.
(4) Each distribution of Allocated Additional
Return Shortfalls shall be distributed
among the Class A Members pro rata in
accordance with their then respective
outstanding Allocated Additional Return
Shortfalls.
(5) Each distribution of Class A Basic Return shall be distributed
among the Class A Members pro rata in accordance with their
then respective total accrued but unpaid Class A Basic Return.
(6) Each distribution of Class A Additional Return shall be
distributed among the Class A Members pro rata in accordance
with their then respective total accrued but unpaid Class A
Additional Return.
(7) Each distribution in return of capital after payment in full
of Allocated Net Adjusted Capital Contributions for such
Investment shall be distributed among the Class A Members pro
rata in accordance with their then respective outstanding Net
Adjusted Capital Contributions.
5. Advisory Committee. Pursuant to Section 16.01(A) of the
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Original Operating Agreement, Managing Member hereby consents
and agrees that Stratum shall be entitled to designate one representative as
a member of the Advisory Committee.
6. Modification of Right of First Offer of RSVP. Section
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10.01(B)(b) of the Original Operating Agreement is hereby
amended and restated in its entirety as follows:
(b) (i) Prior to any Transfer by a Class A Member of
its Interest to any Proposed Transferee (other than a Transfer (x) by
PWRES of its Interest, in whole or in part, to any of its Affiliates,
including for purposes hereof Stratum Realty Fund, L.P. and Stratum
Realty Fund II, L.P. (to be formed), or (y) that is a pledge,
hypothecation or other encumbrance, collateral assignment or other
similar transfer or assignment in the nature of security for the payment
or performance of a debt obligation, including without limitation a
guaranty of the debt obligation of another Person), such Class A Member
shall offer the Company all of its Interest proposed to be Transferred.
Each such offer shall (1) be in writing; (2) be at a price and upon
terms identical or more favorable to the Company than the price at and
terms upon which such Class A Member desires to Transfer its Interest to
such Proposed Transferee; and (3) specify the price and terms of the
proposed Transfer to such Proposed Transferee.
(ii) The Company shall have thirty (30) Business
Days from its receipt of the offer made pursuant to clause (i) above
within which it may, pursuant to Notice to such Class A Member, accept
such offer. Transfer of the Class A Member's Interest to the Company
shall occur within sixty (60) days of the Company's acceptance of such
offer. If the Company does not accept such Class A Member's offer in
accordance with the terms of this Section 10.01(B)(b)(ii), the Class A
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thereafter Transfer such Interest to the Proposed
Transferee, at a price producing a yield to the purchaser (assuming a 16% per
annum return on the Class A Member's Interest under the terms of this
Agreement) not greater than fifty basis points (i.e., 0.50 % per annum)
greater than the yield that would have been so produced on the price
specified in the offer described in Section 10.01(B)(b)(i) (provided that,
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in the case of a Transfer by a lender that has
succeeded to an Interest constituting an aggregate Capital Commitment of less
than $75 million by foreclosure or assignment in lieu thereof, the price
shall not be less than the lesser of (I) ten percent (10%) less than the
dollar price specified in the offer described in Section 10.01(B)(b)(i) or
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$2.5 million less than the dollar price specified
in the offer described in Section 10.01(B)(b)(i), and in the case of a
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Transfer by a lender that has succeeded to an Interest
constituting an aggregate Capital Commitment equal to or greater than $75
million by foreclosure or assignment in lieu thereof, a price that is the
lesser of (I) ten percent (10%) less than the dollar price specified in the
offer described in Section 10.01(B)(b)(i) or (II) $5.0 million less than the
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dollar price specified in the offer described in
Section 10.01(B)(b)(i)); provided, however, in any case, that such Transfer
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shall occur during the period of one-hundred and
eighty (180) days following the last day upon which the Company could have
accepted such offer.
7. General Provisions
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(a) Effect of Supplemental Agreement. The Operating
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Agreement, as supplemented and amended hereby, is
hereby ratified and confirmed and remains in full force and effect.
(b) Governing Law. This Supplemental Agreement shall be con
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strued in accordance with, and shall be governed
by, the laws of the State of Delaware, without regard to principles of
conflicts of laws.
(c) Amendments. This Supplemental Agreement and the
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Operating Agreement may not be further
supplemented, amended or otherwise modified, except in writing signed by the
parties hereto.
(d) Severability. In the event that any provision contained
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in this Supplemental Agreement shall for any
reason be held to be illegal or invalid under the laws of any jurisdiction,
such illegality or invalidity shall in no way impair the effectiveness of any
other provision hereof, or of such provision under the laws of any other
jurisdiction; provided, that in the construction and enforcement of such
provision under the laws of the jurisdiction in
which such holding of illegality or invalidity exists, and to the extent only
of such illegality or invalidity, this Supplemental Agreement shall be
construed and enforced as though such illegal or invalid provision had not
been contained herein; and provided, further, that in the event of any such
illegality or invalidity, the parties hereto hereby agree to endeavor in good
faith to amend this Supplemental Agreement with such terms and conditions as
are not illegal or invalid and reflect, to the fullest extent possible, the
agreements of the parties set forth herein.
(e) Headings. Section headings used herein are inserted for
convenience only and
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shall not in any way affect the meaning or
construction of any provision of this Supplemental Agreement.
(f) Counterparts. This Supplemental Agreement may be
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executed in any number of counterparts, each of
which when so executed and delivered shall be an original, and all of which
shall together constitute but one and the same instrument.
(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, the parties hereto have caused this Supplement
to be duly executed and delivered by their respective duly authorized
representatives as of the date first above written.
RSVP HOLDINGS, LLC
By: RSI Fund Management, LLC,
its managing member
By: Reckson Services Industries, Inc.,
its managing member
By: _________________________________
Name:
Title:
PW REAL ESTATE INVESTMENTS SECURITIES INC.
By: ___________________________
Name:
Title:
STRATUM REALTY FUND, L.P.
By: Stratum Realty Company, L.P.,
its general partner
By: Stratum Principals, Inc.,
its general partner
By: ___________________________
Name:
Title:
SCHEDULE A
CAPITAL COMMITMENTS AND
NET ADJUSTED CAPITAL CONTRIBUTIONS
Member: Capital Commitment: Net Adjusted
Capital Contribution:
RSVP Holdings, LLC $100,000,000.00 $0.00
Xxxxx Xxxxxx Real Estate
Securities $150,000,000.00 $5,000,000.00
Inc.
Stratum Realty Partners, LLC $50,000,000.00 $0.00
