Exhibit 10.1
XXXXX XXXXXX XXXXXXX
LAWYERS
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Underwriting Agreement
Reckson Operating Partnership, LP
Reckson Australia Management Limited
ABN 65 114 294 281
as responsible entity for the Reckson New York Property Trust
ARSN 115 585 709
UBS AG, Australia Branch
ABN 47 000 000 000
Citigroup Global Markets Australia Pty Limited
ABN 64 003 114 832
Xxxxx 00
Xxxxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000 Ref: SJD MDRV 02 1387 3037
Telephone: + 00 0 0000 0000
Fax: + 00 0 0000 0000
(C) Xxxxx Xxxxxx Xxxxxxx 2005
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CONTENTS
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Rules for interpreting this agreement 7
1.3 Business Days 8
1.4 Success of the Offer 8
1.5 Valid Application 8
1.6 Underwriters' relationship 8
2. CONDITIONS PRECEDENT 9
2.1 Conditions precedent to underwriting 9
2.2 Obligations to satisfy conditions 9
2.3 Waiver 9
2.4 Failure to fulfil condition precedent 9
3. APPOINTMENT AND OBLIGATION TO UNDERWRITE 10
3.1 Appointment 10
3.2 Agreement to underwrite 10
3.3 Agreement to manage 10
3.4 Several obligations 10
3.5 Sub-underwrite 10
4. WARRANTIES, UNDERTAKINGS AND INDEMNITIES 10
4.1 Validity of agreement 10
4.2 Responsible Entity 11
4.3 Independent 11
4.4 Undertaking 11
4.5 Repetition 11
4.6 Indemnity 11
4.7 Survival 11
4.8 Reliance 11
4.9 Cessation of ROP liability 11
5. OFFER 12
5.1 Making of Offer 12
5.2 Amendment 12
5.3 Withdrawal of the Offer 12
5.4 Application for quotation 12
5.5 Supplementary Offer Document 12
5.6 No other Supplementary Offer Document 13
5.7 Warranties about Supplementary Offer Document 13
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6. CONDUCT OF OFFERS 13
6.1 Support and access 13
6.2 Applications 13
6.3 Notification of Applications 13
6.4 Acceptance of Applications 14
6.5 Nomination of Allottees 14
6.6 Allotment of Offer Securities 14
6.7 Holding Statements 15
6.8 Prompt Banking of Cheques 15
6.9 Initial Instalment 15
6.10 Records 15
6.11 Relief of Liability 15
6.12 No Shortfall 15
7. SHORTFALL AND ALLOTMENT 15
7.1 Notice of Shortfall Securities 15
7.2 Certificate to accompany notice 16
7.3 Certificate Representations and Warranties 16
7.4 Facilitation of settlement 16
7.5 Requirement to pay 16
7.6 Liability Extinguished 17
7.7 Allotment of Securities 17
8. Final instalment 17
8.1 Request for Payment of Final Instalment 17
8.2 Notice of Unpaid Instalments 17
8.3 Cancellation of Forfeiture 18
8.4 Certificate to accompany notice 18
8.5 Underwriting of Instalment Shortfall Units 18
8.6 Liability of the Responsible Entity 18
8.7 Notification of assignment of rights 19
8.8 Assignment of rights 19
8.9 Liability extinguished 19
9. FEES, COSTS AND EXPENSES 19
9.1 Payment of fees 19
9.2 Costs and expenses 20
9.3 Costs on termination 20
9.4 Set off 21
10. EVENTS OF TERMINATION 21
10.1 Right of termination 21
10.2 Exercise of rights 25
10.3 Right of termination after Allotment Date 25
10.4 Claims 26
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10.5 Notification 26
10.6 Effect of termination 26
11. ADVERTISING AND PUBLIC ANNOUNCEMENTS 27
11.1 Promotion of Offer 27
11.2 Responsibility for promotion 28
11.3 Xxxxxxxxxx 00
00. ACCESS TO INFORMATION 28
12.1 Access and information 28
12.2 ASX and ASIC 28
12.3 Due diligence materials 29
13. ACKNOWLEDGMENTS 29
13.1 Acknowledgments 29
13.2 Agreements 29
14. GST 30
14.1 Definitions 30
14.2 GST payable in addition to fees 30
14.3 GST on claims and expenses 30
15. NOTICES 31
15.1 How to give a notice 31
15.2 When a notice is given 31
15.3 Address for notices 31
16. AMENDMENT AND ASSIGNMENT 32
16.1 Amendment 32
16.2 Assignment 32
17. GENERAL 32
17.1 Governing law 32
17.2 Giving effect to this agreement 32
17.3 Waiver of rights 32
17.4 Operation of this agreement 33
17.5 Inconsistency with other documents 33
17.6 Time is of the essence 33
17.7 Counterparts 33
17.8 Attorneys 33
17.9 Responsible Entity 33
17.10 Indemnities 34
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Schedule
1 CERTIFICATE 35
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2 WARRANTIES 37
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3 INDEMNITY 44
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4 TIMETABLE 51
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iv.
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UNDERWRITING AGREEMENT
DATE 12 August 2005
PARTIES
Reckson Operating Partnership, LP (ROP)
Reckson Australia Management Limited ABN 65 114 294 281 (the
Responsible Entity) as responsible entity for the Reckson New York
Property Trust ARSN 115 585 709.
UBS AG, Australia Branch ABN 47 000 000 000 (UBS)
Citigroup Global Markets Australia Pty Limited ABN 64 003 114 832
(Citigroup)
RECITALS
A. The Responsible Entity is the responsible entity of the Trust and
proposes to make the Offer.
B. ROP is the controller of the Responsible Entity, and has agreed to
enter into this agreement at the request of the Underwriters.
C. The Underwriters have agreed to underwrite:
(a) subscriptions of the Initial Instalment for the Offer Securities;
and
(b) payment of the Final Instalment on the Allotted Units,
on the terms and conditions set out in this agreement.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 Definitions
The following definitions apply in this agreement.
Allotment Date means the date specified as such in the Timetable as
varied, if at all pursuant to clause 5.2.
Allotted Units means the number of Offer Securities to be allotted
pursuant to the Offer Document.
Application means:
(a) an application for Offer Securities made on a duly completed
Application Form; and
(b) an Institutional Application.
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Application Form means the application form attached to or
accompanying the Offer Document, in the form agreed by the parties
and initialled by them on the date of this agreement for the purposes
of identification.
ASIC means the Australian Securities and Investments Commission.
ASX means Australian Stock Exchange Limited ABN 98 008 624 691.
Authorisation means:
(a) an authorisation, consent, declaration, exemption, notarisation
or waiver, however it is described; and
(b) in relation to anything that could be prohibited or restricted by
law if a Government Agency acts in any way within a specified
period, the expiry of that period without that action being taken,
including any renewal or amendment.
Business Day has the meaning given to that expression by the Listing
Rules.
Call Date means the date specified as such in the Timetable, as
varied if at all, pursuant to clause 5.2.
Call Option has the meaning given to the term "Option Agreement" in
the Offer Document.
Certificate means a certificate in the form of schedule 1 (or in such
other form agreed between the Responsible Entity and the
Underwriters) executed by two directors or a director and secretary
of the Responsible Entity.
CHESS has the meaning given to that expression in the Listing Rules.
Claim means, in relation to any person, a claim, action, proceeding
or demand made against the person, however arising, and whether
present or future, fixed or unascertained, actual or contingent.
Closing Date means the date specified as such in the Timetable, as
varied, if at all, pursuant to clause 5.2.
Corporations Act means the Corporations Xxx 0000 (Cth).
Debt Facilities means any debt facilities entered into by US REIT, US
LLC or any subsidiary of US LLC or in connection with any of the
Properties, as contemplated in the Offer Document.
Due Diligence Committee means the Due Diligence Committee established
to undertake due diligence investigations and enquiries on behalf of
the Responsible Entity, its directors, the Underwriters and others in
connection with the Offer and the preparation of the Offer Document.
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Due Diligence Program means the due diligence and verification
procedures planned and reviewed by the Due Diligence Committee in
relation to the Offer and the Offer Document.
Due Diligence Report means the report of the Due Diligence Committee
to the directors of the Responsible Entity and to the members of the
Due Diligence Committee in connection with the Offer and the Offer
Document including all supporting documents and other work papers to
which the Underwriters are given access for the purposes of due
diligence investigations described in the Planning Memorandum
relating to the preparation of the Offer Document.
Due Diligence Results means the results of the investigations which
make up the Due Diligence Program.
Event of Termination means an event entitling an Underwriter to
terminate this agreement as provided in clause 10.
Final Instalment means $0.35
Final Instalment Payment Date means the date specified as such in the
Timetable, as varied, if at all, under clause 5.2.
Foreign Exchange Hedging Contracts means the ISDA swap documents
which hedge the foreign exchange risk of the Responsible Entity
entered into on or about the date of this agreement with each of the
Underwriters or their related bodies corporate.
Government Agency means:
(a) a government or government department or other body;
(b) a governmental, semi-governmental or judicial person; or
(c) a person (whether autonomous or not) who is charged with the
administration of a law.
Indemnified Claim means any Loss directly or indirectly suffered by,
or Claim made against, an Indemnified Party in respect of which an
Indemnified Party is entitled to be indemnified under paragraph 1 of
schedule 3.
Indemnified Party has the meaning given to that term in schedule 3.
Initial Instalment means $0.65.
Initial Offer Proceeds means the amount calculated by multiplying the
Initial Instalment by the number of Allotted Units.
Instalment Proceeds means the amount calculated by multiplying the
Final Instalment by the number of Allotted Units.
Instalment Shortfall Sale Date means the date specified as such in
the Timetable as varied, if at all, under clause 5.2.
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Instalment Shortfall Units has the meaning given to that term in
clause 8.2.
Institutional Application means an offer acceptance advice in respect
of Offer Securities in the form approved by the Underwriters which is
returned by an Institutional Investor to the Underwriters to confirm
its acceptance of the number of Offer Securities allocated to it by
the Underwriters and the terms on which those Offer Securities are
allocated to it.
Institutional Investor means a person to whom an offer of Offer
Securities may be made without the lodgement of a product disclosure
statement under the Corporations Act.
Institutional Offer Securities means that number of Offer Securities
in respect of which the Responsible Entity is taken to have received
Valid Applications from Institutional Investors (other than
Participating Brokers) which are allocated by the Underwriters to
those Institutional Investors (other than Participating Brokers).
Institutional Proceeds means the number of Institutional Offer
Securities multiplied by the Initial Instalment.
Issue Price means $1.00.
Listing Rules means the Listing Rules of ASX (including the ASTC
Settlement Rules, the ASX Market Rules and the ACH Clearing Rules) as
waived or modified by ASX in respect of the Responsible Entity, the
Trust or the Offer, in any particular case.
LLC Agreement has the meaning given to that term in the Offer
Document.
Lodgement Date means the date specified as such in the Timetable as
varied, if at all, pursuant to clause 5.2.
Loss means, in relation to a person, a damage, loss, cost, expense or
liability incurred by the person, however arising and whether present
or future, fixed or unascertained, actual or contingent.
LSE means the London Stock Exchange
LSE Trading Day means a day on which LSE is open for trading.
Mandate Letter means the letter agreement between the Underwriters
and Reckson Associates dated on or about 26 July 2005.
Market Price has the meaning given to that expression in the Scheme
Constitution.
NYSE means the New York Stock Exchange.
NYSE Trading Day means a day on which NYSE is open for trading.
Offer means the invitation to subscribe for Offer Securities to raise
the Offer Amount made pursuant to the Offer Document.
Offer Amount is AUD$263,413,889.
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Offer Document means the product disclosure statement to be issued by
the Responsible Entity in relation to the Offer in a form approved by
the Underwriters (acting reasonably) and initialled for the purposes
of identification by the Responsible Entity and the Underwriters (as
modified, to the extent applicable, by any Supplementary Offer
Document).
Offer Securities means the Units the subject of the Offer.
Opening Date means the date, specified as such in the Timetable as
varied, if at all, under clause 5.2.
Pathfinder Document means the advanced copies of the Offer Document
provided to the Underwriters for distribution to prospective
sub-underwriters and Institutional Investors under clause 6.1.
Participating Broker means those participating organisations of ASX
selected by the Underwriters to participate in the Offer.
Planning Memorandum means the memorandum describing the Due Diligence
Program adopted by the Due Diligence Committee in relation to the
Offer and the Offer Document.
Prescribed Occurrence means, in relation to a person, the events set
out in section 652C of the Corporations Act but substituting that
person for "target" and "equity interests" for "shares" and provided
that:
(a) the issue of Offer Securities pursuant to the Offer; and
(b) the issue of Units by the Trust
shall not constitute a Prescribed Occurrence.
Properties has the meaning given to that term in the Offer Document.
Publication has the meaning given to that term in paragraph (d) of
Part 2 of schedule 2.
Reckson Associates means Reckson Associates Realty Corp.
Relevant Index means the S&P/ASX 200 Index and the S&P/ASX 200
Property Index.
Sale Agreement has the meaning given to the term "Sale Agreement" in
the Offer Document.
Scheme Constitution means the constitution constituting the Trust.
Settlement Date means the date specified as such in the Timetable as
varied, if at all, pursuant to clause 5.2.
Shortfall Amount means the amount which equals the Initial Instalment
multiplied by the number of Shortfall Securities.
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Shortfall Notification Date means the date specified as such in the
Timetable as varied, if at all, pursuant to clause 5.2.
Shortfall Securities has the meaning given to that term in clause
7.1.
Starting Level means in respect of a Relevant Index the level of that
index as at the close of business on the Business Day prior to the
date of this agreement.
Supplementary Offer Document means any supplementary or replacement
product disclosure statement to the Offer Document lodged with ASIC
in connection with the Offer.
Tax means a tax, levy, duty, charge, deduction or withholding,
however it is described, that is imposed by a Government Agency,
together with any related interest, penalty, fine or other charge,
other than one that is imposed on taxable income.
Timetable means the timetable for the Offer set out in schedule 4 as
varied, if at all, pursuant to clause 5.2.
Transaction means the transactions contemplated by the Transaction
Documents.
Transaction Documents means the Sale Agreement, the Debt Facilities,
the Foreign Exchange Hedging Contracts, the LLC Agreement, the Call
Option and any other agreements entered into by the Responsible
Entity, US REIT or US LLC in connection with the establishment of the
Trust or the acquisition, as contemplated by the Offer Document.
Trust means the Reckson New York Property Trust ARSN 115 585 709
which is a managed investment scheme registered under Part 5C of the
Corporations Act.
Underwriter means each of UBS and Citigroup and Underwriters means
both of UBS and Citigroup.
Underwritten Period means the period commencing on the date of this
agreement and ending on the Instalment Shortfall Sale Date.
Unit means an ordinary unit in the Trust.
Unpaid Instalment Amount has the meaning given to that term in clause
8.2.
Unpaid Instalment Notice has the meaning given to that term in clause
8.2.
US LLC has the meaning given to that term in the Offer Document.
US REIT has the meaning given to that term in the Offer Document.
Valid Application has the meaning given to that term in clause 1.5.
Verification Material means the contents of the file maintained by
the Due Diligence Committee being the documents and information
provided in verification of statements made in the Offer Document.
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1.2 Rules for interpreting this agreement
Headings are for convenience only, and do not affect interpretation. The
following rules also apply in interpreting this agreement, except where
the context makes it clear that a rule is not intended to apply.
(a) A reference to:
(i) legislation (including subordinate legislation) is to that
legislation as amended, re-enacted or replaced, and includes
any subordinate legislation issued under it;
(ii) a document, deed or agreement, or a provision of a document,
deed or agreement, is to that document, deed, agreement or
provision as amended, supplemented, replaced or novated;
(iii) a party to this agreement or to any other document or
agreement includes a permitted substitute or a permitted
assign of that party;
(iv) a person includes any type of entity or body of persons,
whether or not it is incorporated or has a separate legal
identity, and any executor, administrator or successor in
law of the person;
(v) anything (including a right, obligation or concept) includes
each part of it; and
(vi) a date or time means to that date or time in Sydney.
(b) A singular word includes the plural, and vice versa.
(c) A word which suggests one gender includes the other genders.
(d) If a word is defined, another part of speech has a corresponding
meaning.
(e) If an example is given of anything (including a right, obligation
or concept), such as by saying it includes something else, the
example does not limit the scope of that thing.
(f) The word "agreement" includes an undertaking or other binding
arrangement or understanding, whether or not in writing.
(g) The words "subsidiary", "holding company" and "related body
corporate" have the same meanings as in the Corporations Act.
(h) References to "applicable law" include all applicable laws of
jurisdictions within or outside Australia (including any State or
Federal law of the United States of America) and includes the
Listing Rules and policies, guidelines, official directives or
requests of or by any Government Agency, whether or not having the
force of law.
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1.3 Business Days
If the day on or by which a person must do something under this
agreement is not a Business Day:
(a) if the act involves a payment that is due on demand, the person
must do it on or by the next Business Day; and
(b) in any other case, the person must do it on or by the previous
Business Day (unless it is to occur contemporaneously with a
payment which is to be made on the next Business Day under the
preceding paragraph, in which case it will occur on that next
Business Day).
1.4 Success of the Offer
For the purposes of this agreement, the effect of any matter on the
success of the Offer is determined by assessing the likely effect of
that matter on a decision of an investor to invest in the Offer
Securities as if that decision to invest were made after the occurrence
of that matter and not by considering the number and extent of
applications for Offer Securities received before the occurrence of that
matter.
1.5 Valid Application
For the purposes of this agreement a Valid Application in respect of an
Offer Security is taken to have been received by the Responsible Entity
if:
(a) in the case of an application which is not an Institutional
Application, it is made on a duly completed Application Form and
submitted in accordance with the Offer Document before 5.00 p.m.
on the Closing Date and the Responsible Entity receives the First
Instalment in cleared funds by 5.00 p.m. on the Closing Date; and
(b) in the case of an Institutional Application it is made by an
Institutional Investor (other than a Participating Broker) who has
been allocated that Offer Security by the Underwriters and that
Institutional Investor has returned a duly completed Institutional
Application in respect of that Offer Security to the Underwriters
by the time specified by the Underwriters which includes those
details necessary to permit delivery versus payment to occur
through CHESS in respect of that Offer Security on the Settlement
Date.
1.6 Underwriters' relationship
(a) An obligation of an Underwriter under this agreement (including an
obligation to pay) is several on a 50:50 basis and not joint or
joint and several.
(b) A right of an Underwriter under this agreement is held by that
Underwriter severally and each Underwriter may exercise its
rights, powers and benefits under this agreement individually.
(c) Where the consent or approval of an Underwriter is required under
this agreement, that consent or approval must be obtained from
each Underwriter (other than an
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Underwriter which has given a notice under clause 8 to terminate
its obligations under this agreement).
(d) Nothing contained or implied in this agreement constitutes an
Underwriter the partner, agent, or representative of the other
Underwriter for any purpose or creates any partnership, agency or
trust between the Underwriters, and neither Underwriter has any
authority to bind the other in any way.
(e) Any reference to the Underwriter in this agreement is a reference
to each Underwriter separately, so that (for example) a
representation, warranty or undertaking is given by each of them
separately.
2. CONDITIONS PRECEDENT
2.1 Conditions precedent to underwriting
The obligations of the Underwriters to underwrite subscriptions of the
Initial Instalment for the Offer Securities and payment of the Final
Instalment on the Allotted Units under this agreement do not become
binding unless each of the following conditions is fulfilled (or waived
under clause 2.3):
(a) the Offer Document being lodged with ASIC on or before 9.00am on
the Lodgement Date in a form and substance satisfactory to the
Underwriters (acting reasonably);
(b) the investigations conducted in accordance with the Due Diligence
Program being completed to the satisfaction of the Joint Lead
Managers (acting reasonably) on or before 9.00am on the Lodgement
Date;
(c) delivery of the Due Diligence Report to the directors of the
Responsible Entity in a form and substance satisfactory to the
Underwriters and signed by each member of the Due Diligence
Committee on or before 9.00 am on the Lodgement Date; and
(d) receipt by each member of the Due Diligence Committee of adviser's
reports and opinions referred to in Attachment 4 of the Planning
Memorandum on or before 9.00 am on the Lodgement Date.
2.2 Obligations to satisfy conditions
The Responsible Entity must use its best endeavours to satisfy the
conditions referred to in clause 2.1.
2.3 Waiver
The Underwriters alone may waive any or all of the conditions referred
to in clause 2.1 by giving notice in writing to the Responsible Entity
to that effect.
2.4 Failure to fulfil condition precedent
If the conditions referred to in clause 2.1 are not fulfilled (or waived
under clause 2.3) by the time specified in that condition or such later
time (as agreed by the Underwriters) then
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this agreement (other than clauses 4.6, 9, 13, 14, 15, 16 and 17(except
17.2) is at an end as to its future operation except for the enforcement
of any right or claim which arises on or has arisen before this
agreement comes to an end.
3. APPOINTMENT AND OBLIGATION TO UNDERWRITE
3.1 Appointment
The Responsible Entity appoints the Underwriters as the underwriters of
the Offer on the terms and conditions of this agreement and the
Underwriters accept that appointment.
3.2 Agreement to underwrite
The Underwriters agree to underwrite:
(a) subscriptions of the Initial Instalment for the Offer Securities;
and
(b) payment of the Final Instalment on the Allotted Units,
on the terms and conditions of this agreement.
3.3 Agreement to manage
The Underwriters agree to act as joint lead managers and bookrunners of
the Offer and assist the Responsible Entity, in a professional and
diligent manner, in the successful conduct of the Offer.
3.4 Several obligations
The obligations of each of the Underwriters under clause 3.2 to
underwrite:
(a) subscriptions of the Initial Instalment for the Offer Securities;
and
(b) payment of the Final Instalment on the Allotted Units,
shall be several and not joint, with each Underwriter being obliged to
underwrite subscriptions for 50% of the Shortfall Amount and 50% of the
Unpaid Instalment Amount.
3.5 Sub-underwrite
The Underwriters may at any time appoint sub-underwriters to
sub-underwrite subscriptions for the Offer Securities.
4. WARRANTIES, UNDERTAKINGS AND INDEMNITIES
4.1 Validity of agreement
Each party, in respect of itself, represents and warrants to each other
party each of the matters set out in part 1 of schedule 2.
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4.2 Responsible Entity
The Responsible Entity represents, warrants and undertakes to the
Underwriters each of the matters set out in part 2 of schedule 2.
4.3 Independent
Each of the paragraphs set out in schedule 2 shall be construed
independently and no paragraph shall be limited by implications arising
from any other paragraphs.
4.4 Undertaking
(a) Each of the Responsible Entity and ROP undertakes to the
Underwriters that it will notify the Underwriters immediately if
it becomes aware of a breach of any representation or warranty
under clause 4.1 relating to it, and of any representation or
warranty under clause 4.2.
(b) Each of the Underwriters undertakes to the Responsible Entity and
ROP that it will notify the Responsible Entity and ROP immediately
if it becomes aware of a breach of any representation or warranty
under clause 4.1 relating to it.
4.5 Repetition
Each representation and warranty given by a party under this clause 4
shall be deemed to have been repeated by that party on each day before
the Allotment Date and on the Allotment Date and on each day before the
Instalment Shortfall Sale Date and on the Instalment Shortfall Sale Date
as if made with respect to the facts and circumstances then existing.
4.6 Indemnity
Each of the Responsible Entity and ROP indemnifies each of the
Indemnified Parties on the terms and conditions set out in schedule 3.
4.7 Survival
The representations, warranties and indemnities given by a party under
this agreement shall not merge upon completion of the transactions
contemplated by this agreement.
4.8 Reliance
Each party acknowledges that the others are entering into this agreement
in reliance on the representations, warranties and undertakings in this
clause 4.
4.9 Cessation of ROP liability
ROP ceases to be liable for any Claims that may be made against it under
this agreement after the third anniversary of the date of this
agreement. Nothing in this clause affects the rights of the Underwriters
to make Claims against the Responsible Entity.
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5. OFFER
5.1 Making of Offer
Subject to clause 5.3, the Responsible Entity must offer the Offer
Securities for subscription in accordance with this agreement, the Offer
Document, the Timetable, the Scheme Constitution, the Listing Rules, the
Corporations Act and all other applicable laws.
5.2 Amendment
The Timetable may be amended by the Responsible Entity with the consent
of:
(a) the Underwriters; and
(b) ASX, if required by the Listing Rules or the Corporations Act.
5.3 Withdrawal of the Offer
The Responsible Entity may withdraw or not proceed with the Offer.
Nothing in this clause affects the Underwriters' right to terminate
their obligations under this agreement under clause 10.1(a)(x) of this
agreement.
5.4 Application for quotation
The Responsible Entity must within the time required by section 1013H of
the Corporations Act apply for:
(a) the Trust to be admitted to the official list of ASX; and
(b) the Offer Securities to be granted official quotation on ASX,
and thereafter use its best endeavours to procure that the Trust is
admitted to the official list of ASX and official quotation is granted
to the Offer Securities by the Allotment Date.
5.5 Supplementary Offer Document
Without prejudice to the Underwriters' rights under clause 9, if before
the Allotment Date:
(a) there is a misleading or deceptive statement in the Offer Document
or any Supplementary Offer Document; or
(b) there is an omission from the Offer Document or any Supplementary
Offer Document of material required by the Corporations Act to be
included; or
(c) there is a new circumstance that:
(i) has arisen since the Offer Document or any Supplementary
Offer Document was lodged; and
(ii) would have been required by the Corporations Act to be
included in the Offer Document or Supplementary Offer
Document if it has arisen before the relevant document was
lodged,
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the Responsible Entity must immediately notify the Underwriters of that
statement, omission or circumstance and must lodge a Supplementary Offer
Document (in a form approved in writing by the Underwriters, such
approval not to be unreasonably withheld or delayed) in respect of that
statement, omission or circumstance as soon as practicable afterwards
and otherwise comply with the Corporations Act. Following the lodgement
of any Supplementary Offer Document the Responsible Entity must
immediately take all action in respect of the Supplementary Offer
Document as may reasonably be required by the Underwriters (including
publication of the Supplementary Offer Document in a national newspaper
and dispatching copies of the Supplementary Offer Document to all
recipients of the Offer Document).
5.6 No other Supplementary Offer Document
Other than pursuant to clause 5.5, the Responsible Entity must not lodge
or reissue a Supplementary Offer Document without the prior written
consent of the Underwriters (such consent not to be unreasonably
withheld or delayed).
5.7 Warranties about Supplementary Offer Document
The warranties given by the Responsible Entity and ROP under clause 4 in
relation to the issue and contents of the Offer Document and conduct
relating to the Offer shall apply equally to any Supplementary Offer
Document.
6. CONDUCT OF OFFERS
6.1 Support and access
The Responsible Entity and ROP must provide the support of, and access
to, the senior executives of the Responsible Entity and ROP to the
extent reasonably required by the Underwriters in the appointment of any
sub-underwriters and in marketing of the Offer, including providing
advanced copies of drafts of the Offer Document to the Underwriters for
distribution (with the prior approval of the Responsible Entity ) to
prospective sub-underwriters and Institutional Investors and a marked
copy of the lodged version of the Offer Document showing all changes
from the draft provided by the Underwriters to prospective
sub-underwriters and Institutional Investors.
6.2 Applications
Each application for Offer Securities must be made on an Application
Form or be an Institutional Application.
6.3 Notification of Applications
(a) Subject to paragraph (b) and (c), the Responsible Entity must
notify the Underwriters once every Business Day of:
(i) the number of Applications (and the number of Offer
Securities to which those Applications relate) received on
the previous Business Day;
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13.
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(ii) the number of Applications received on the previous Business
Day which are not Valid Applications and the grounds on
which the Responsible Entity believes the Application is not
valid;
(iii) the identity of the persons from whom an Application has
been received on the previous Business Day; and
(iv) the aggregate of the Initial Instalments received from each
applicant on the previous Business Day.
(b) Clause 6.3(a) does not apply in respect of Applications which are
processed electronically by Participating Brokers via the delivery
versus payment system. In this case, the Responsible Entity must
only notify the Underwriters once every Business Day of the
aggregate number of Applications (and the aggregate number of
Offer Securities to which those Applications relate) which were
processed electronically by each Participating Broker via the
delivery versus payment system on the previous Business Day.
(c) Clause 6.3(a) and (b) only apply to Applications which are not
Institutional Applications.
(d) The Underwriters have the right to review Applications which are
not Valid Applications.
6.4 Acceptance of Applications
(a) Subject to paragraph (b) the Responsible Entity must accept each
Valid Application for Offer Securities which it is taken to have
received.
(b) The Responsible Entity is not required to accept Applications for
Offer Securities under subparagraph (a) which exceed the number of
Offer Securities available once the Offer Amount is determined or
where the acceptance of the relevant Application would be contrary
to the allocation policy set out in the Offer Document.
6.5 Nomination of Allottees
The Responsible Entity acknowledge that the Underwriters, after
consultation with the Responsible Entity, have the right to nominate the
allottees of all Offer Securities in their absolute discretion subject
to complying with the allocation policy set out in the Offer Document.
6.6 Allotment of Offer Securities
The Responsible Entity must allot and issue the Offer Securities (which
are not Institutional Offer Securities) in respect of which it is taken
to have received Valid Applications on the Allotment Date in accordance
with the allotment procedure described in the Offer Document.
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14.
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6.7 Holding Statements
The Responsible Entity must dispatch a new holding statement in respect
of the Offer Securities issued pursuant to the Offer in accordance with
the Corporations Act and the Listing Rules as soon as practicable.
6.8 Prompt Banking of Cheques
The Responsible Entity must promptly bank for collection all cheques
accompanying Applications received by it. The Responsible Entity must at
its cost arrange for payments to be cleared (or, if clearance is to be
refused, for that to occur) by the relevant financial institutions on
which the payment is drawn.
6.9 Initial Instalment
The Responsible Entity must comply with section 1017E of the
Corporations Act in respect of the Initial Instalment received by it in
respect of any Offer Security.
6.10 Records
The Responsible Entity must maintain (and permit the Underwriters to
inspect at any reasonable time) accurate records of the receipt of
Applications, the banking of the Initial Instalments received by it, the
processing of Applications and the dispatch of holding statements in
respect of the Offer Securities issued pursuant to the Offer.
6.11 Relief of Liability
All Valid Applications which the Responsible Entity is taken as having
received will go towards relieving the liability of the Underwriters
under this agreement to underwrite subscriptions of the Initial
Instalment for the Offer Securities.
6.12 No Shortfall
If by 5:00pm on the Closing Date, Valid Applications are taken to have
been received by the Responsible Entity in respect of that number of
Offer Securities which if issued at the Issue Price would raise the
Offer Amount, the Underwriters' liability under this agreement to
underwrite subscriptions of the Initial Instalment for the Offer
Securities is extinguished.
7. SHORTFALL AND ALLOTMENT
7.1 Notice of Shortfall Securities
If, as at 5:00pm on the Closing Date, the Responsible Entity has not
received Valid Applications in respect of all of the Allotted Units, the
Responsible Entity must by 5:00pm on the Shortfall Notification Date (or
such longer period agreed in writing by the Underwriters), give a
written notice to the Underwriters (the Shortfall Notice) specifying the
number of Allotted Units in respect of which Valid Applications have not
been received (Shortfall Securities).
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15.
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7.2 Certificate to accompany notice
The Responsible Entity must give a Certificate to the Underwriters by
5:00pm on the Business Day before the Settlement Date. The obligations
of the Underwriters under clause 7.5 are subject to and conditional on,
the Responsible Entity delivering such Certificate to the Underwriters.
7.3 Certificate Representations and Warranties
The Responsible Entity represents and warrants in giving the Certificate
that:
(a) the Shortfall Notice specifying the number of Allotted Units for
which Valid Applications were not received is true and accurate as
at the date of the Shortfall Notice; and
(b) the Certificate delivered to the Underwriters shall be true and
accurate in respect of events and circumstances applicable as at
the Closing Date,
and the Responsible Entity further undertakes to notify the Underwriters
of any change in a material respect in any of the matters set out in the
Certificate as soon as practicable after such change becomes known to
the Responsible Entity if such change occurs before the extinguishment
of the Underwriters' liability under this agreement.
7.4 Facilitation of settlement
The Responsible Entity must do, and must cause its security registrar to
do, everything required on its or the registrar's part to facilitate
settlement of the Allotted Units occurring on a delivery versus payment
basis through CHESS on the Settlement Date, and must appoint the
Underwriters (or their nominee) as the Responsible Entity's agent to act
on its behalf in relation to such settlement.
7.5 Requirement to pay
Unless:
(a) this document has been rescinded or terminated under clause 2 or
in accordance with clause 10 before 10:00am on the Settlement
Date; or
(b) the Responsible Entity has not complied with its obligations under
clause 7.2,
each Underwriter must on or before 10:00am on the Settlement Date:
(a) pay to the Responsible Entity, or procure payment to the
Responsible Entity, of 50% of the Institutional Proceeds; and
(b) subscribe, or procure subscription of, 50% of the Shortfall Amount
for 50% of the Shortfall Securities,
(less any amount which the Underwriters are entitled to set off at that
time under clause 9.4).
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16.
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7.6 Liability Extinguished
Upon clause 7.5 being complied with by an Underwriter, the liability of
that Underwriter under this agreement with respect to underwriting
subscriptions of the Initial Instalment for the Offer Securities shall
cease and be extinguished.
7.7 Allotment of Securities
Not later than 1 Business Day after the date on which the Responsible
Entity receives:
(a) the Institutional Proceeds in accordance with clause 7.5; and
(b) subscription of the Shortfall Amount for the Shortfall Securities
in accordance with clause 7.5,
the Responsible Entity must allot the Institutional Offer Securities and
the Shortfall Securities to the subscribers for those Institutional
Offer Securities and Shortfall Securities, as directed by the
Underwriters.
8. FINAL INSTALMENT
8.1 Request for Payment of Final Instalment
The Responsible Entity must ensure that payment of the Final Instalment
is requested from the holders of the Units by the Call Date and in
accordance with the Timetable and in compliance with the Offer Document,
the Scheme Constitution, the Listing Rules, the Corporations Act and all
other applicable laws.
8.2 Notice of Unpaid Instalments
Not later than 7 Business Days after the Instalment Payment Date, the
Responsible Entity must give a written notice to the Underwriters (the
Unpaid Instalment Notice) specifying:
(a) the number of Allotted Units in respect of which the Final
Instalment has not been received by the Responsible Entity and
which the Responsible Entity proposes to sell under the forfeiture
provisions of the Scheme Constitution (the Instalment Shortfall
Units);
(b) the aggregate amount of the unpaid Final Instalments in respect of
the Instalment Shortfall Units (the amount so specified being the
Unpaid Instalment Amount);
(c) subject to paragraph (d), the proposed date (Instalment Shortfall
Sale Date) for the sale of the Instalment Shortfall Units which
must be through the market operated by ASX and be a date not later
than 6 weeks after the Instalment Payment Date;
(d) if the Responsible Entity must sell the Instalment Shortfall Units
at public auction as required by the Corporations Act (as modified
by any ASIC instrument), the Responsible Entity must use its best
endeavours to organise a public auction to be held as soon as
practicable and no later than 6 weeks after the Instalment Payment
Date and must in the Unpaid Instalment Notice give the
Underwriters notice of the
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17.
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date, place and time of the public auction (in which case such
date will be the Instalment Shortfall Sale Date).
For the avoidance of doubt, the reference to Allotted Units in
subparagraph (a) of this clause is only to those Units which are offered
for subscription under the Offer Document and which are allotted on the
Allotment Date.
8.3 Cancellation of Forfeiture
The Responsible Entity must immediately notify the Underwriters in
writing if at any time before the Instalment Shortfall Sale Date the
forfeiture of an Instalment Shortfall Unit is cancelled in accordance
with the Scheme Constitution and must advise the Underwriters of the
revised number of Instalment Shortfall Units and the revised Unpaid
Instalment Amount. For the purposes of this agreement the number of
Instalment Shortfall Units and the Unpaid Instalment Amount at any time
is the number of Instalment Units and the Unpaid Instalment Amount most
recently advised to the Underwriters under this clause 8.3.
8.4 Certificate to accompany notice
The Responsible Entity must give a Certificate to the Underwriters at
the same time as it gives the Instalment Shortfall Notice under clause
8.2. The obligations of the Underwriters under clause 8.5 are subject to
and conditional on the Responsible Entity delivering the Certificate to
the Underwriters.
8.5 Underwriting of Instalment Shortfall Units
Subject to the Responsible Entity satisfying its obligations under
clause 8.1, 8.2 and 8.4, unless this agreement has been rescinded or
terminated under clause 2 or clause 10 on or before the Instalment
Shortfall Sale Date, each Underwriter must:
(a) place offers through SEATS for 50% of the Instalment Shortfall
Units (credited with the Final Instalment as paid) at a price at
least equal to the Final Instalment for each such Instalment
Shortfall Unit; or
(b) attend the public auction and there offer to purchase, and
purchase (in cleared funds) if the offer is accepted, 50% of all
the Instalment Shortfall Units (credited with the Final Instalment
paid) for an amount at least equal to the Final Instalment for
each such Instalment Shortfall Unit,
as the case may be.
8.6 Liability of the Responsible Entity
(a) The parties acknowledge it is possible that an Underwriter may
purchase an Instalment Shortfall Unit under clause 8.5 at a price
which is more than the Market Price of the Unit (in respect of
which the Final Instalment has been paid).
(b) For the purposes of rule 6.16 of the Scheme Constitution, the
Responsible Entity is liable to an Underwriter in respect of each
Unit purchased by that Underwriter in accordance with clause 8.5
at a price which is more than the Market Price for the
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18.
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Unit (in respect of which the Final Instalment has been paid or
credited) for an amount equal to the difference between:
(i) the Market Price of the Unit (in respect of which the Final
Instalment has been paid); and
(ii) the price paid by the Underwriter for the Unit up to a
maximum of the amount of the Final Instalment.
8.7 Notification of assignment of rights
Where an Underwriter purchases the Instalment Shortfall Units under
clause 8.5 at a price per Unit which is more than the Market Price of a
Unit (as contemplated by clause 8.6) the Underwriter may, within 15
Business Days of the purchase under clause 8.5, notify the Responsible
Entity that it requires the Responsible Entity to assign some or all of
its rights against former holders of the Units to that Underwriter under
rule 6.16 of the Scheme Constitution and if the Underwriter does not
notify the Responsible Entity in accordance with this clause, the
Responsible Entity's liability to that Underwriter under clause 8.6
shall cease on the expiry of that 15 Business Day period.
8.8 Assignment of rights
Upon receipt of a notice under clause 8.7, the Responsible Entity must:
(a) assign (at law) to that Underwriter such of its rights against the
former holders of the Units under rule 6.16 of the Scheme
Constitution as are specified in the notice and upon doing so the
Responsible Entity's liability to that Underwriter under clause
8.6 ceases; and
(b) give to that Underwriter all such assistance as is necessary to
enable the Underwriter to enforce those rights.
8.9 Liability extinguished
Upon clause 8.5 being complied with by an Underwriter or the Responsible
Entity failing to provide an Unpaid Instalment Notice or Certificate in
accordance with clause 8.2 or 8.4, the liability of that Underwriter
under this agreement with respect to underwriting the payment of the
Final Instalment on the Allotted Units shall cease and be extinguished.
9. FEES, COSTS AND EXPENSES
9.1 Payment of fees
(a) Subject to clause 9.3 and the relevant Underwriter complying with
clause 7.5, the Responsible Entity must pay to each Underwriter on
the Settlement Date:
(i) an underwriting fee of 1.25% of the Initial Offer Proceeds;
and
(ii) a management fee of 0.25% of the Initial Offer Proceeds.
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19.
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For the avoidance of doubt, the total of such fees is 3.0% of the
Initial Offer Proceeds which is shared equally between the Underwriters.
(b) Subject to clause 9.3 and the relevant Underwriter complying with
8.5, the Responsible Entity must pay to each Underwriter on the
Instalment Shortfall Sale Date:
(i) an underwriting fee of 1.25% of the Instalment Proceeds; and
(ii) a management fee of 0.25% of the Instalment Proceeds.
For the avoidance of doubt, the total of such fees is 3.0% of the
Instalment Proceeds which is shared equally between the Underwriters.
(c) The Responsible Entity must pay to the Underwriters on the
Settlement Date a fee of 1.5% of the amount calculated by
multiplying the Issue Price by the number of Offer Securities
allotted pursuant to Application Forms from retail investors
bearing the stamp of a Participating Broker (which may be the
Underwriter or a related body corporate) or a member of the
Financial Planning Association, which fee shall be paid by the
Underwriter to the relevant Participating Broker or member of the
Financial Planning Association whose stamp appears on the
Application Form.
(d) The Underwriters must pay any sub-underwriting fees out of the
fees payable to them under paragraph (a) and are not entitled to
be reimbursed or indemnified for such fees, whether under clause
4.6 or 9.2 or otherwise.
9.2 Costs and expenses
In addition to the fees referred to in clause 9.1, the Responsible
Entity must on receipt of notice from the Underwriters, pay or procure
the payment to the Underwriters (or as it directs) of all reasonable
travel and out-of-pocket expenses incurred by the Underwriters in
relation to the Offer, and all other reasonable costs, expenses and
disbursements of the Underwriters in relation to the Offer, and
reasonable legal costs and disbursements on a full indemnity basis
incurred by the Underwriters in relation to the Offer including costs
and disbursements incurred in the preparation and execution of this
agreement.
9.3 Costs on termination
In the event that the obligations of the Underwriters under this
agreement are terminated pursuant to clause 2 or 10 or the Offer does
not proceed or is not completed for any reason:
(a) the Responsible Entity shall not be obliged to pay to the
Underwriters the fees referred to in clause 9.1; and
(b) except where the termination or failure of the Offer to proceed is
solely due to a wrongful act by the Underwriters, the Responsible
Entity shall be obliged to pay to the Underwriters within five
Business Days of termination of the obligations of the
Underwriters, or the Offer not proceeding or completing (to the
extent that it has
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20.
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not already done so), the costs, expenses and disbursements
referred to in clause 9.2.
9.4 Set off
The Underwriters may at any time set off against the amount payable by
them to the Responsible Entity under clause 7.5 or clause 8.5, the
amounts payable to them by the Responsible Entity under clause 9.1, 9.2
or 9.3. To the extent the obligations of the Responsible Entity under
those clauses are not fully satisfied by such application the
Responsible Entity will not be relieved of its obligations under those
clauses. The Underwriters must give prior written notice to the
Responsible Entity of any amount set off by the Underwriters pursuant to
this clause 9.4.
10. EVENTS OF TERMINATION
10.1 Right of termination
Subject to clause 10.2, if any one or more of the following events
occurs at any time in the period from (and including) the date of this
agreement to the time the Allotted Units are issued on the Allotment
Date (or, in the case of a paragraph which specifies a particular
period, from (and including) the date of this agreement to (and
including) the date or period referred to in the relevant paragraph),
then at any time on or before the time the Allotted Units are issued on
the Allotment Date (or the particular period specified) an Underwriter
may terminate any of its obligations under this agreement which have not
been performed at that time (without cost or liability to itself) by
notice in writing to the Responsible Entity (with a copy to the other
Underwriter) specifying the relevant event:
(a) (i) (index change) a Relevant Index either:
(A) falls 15% or more below its Starting Level and remains
15% or more below the Starting Level for 2 or more
consecutive Business Days; or
(B) falls 15% or more below its Starting Level on a day
which is less than 2 Business Days before the
Allotment Date and remains 15% or more below the
Starting Level on each subsequent Business Day until
the Allotment Date;
(ii) (Reckson Associates):
(A) Reckson Associates is or becomes insolvent;
(B) NYSE suspends quotation of the shares of common stock
in Reckson Associates for 2 or more consecutive NYSE
Trading Days or Reckson Associates ceases to be listed
on NYSE;
(iii) (ASIC stop order):
(A) ASIC gives notice of an intention to hold a hearing or
issues an order or interim order under section
1020E(2) or 1020E(5) of the Corporations Act or ASIC
applies for an order under sections
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21.
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1324B or 1325 of the Corporations Act in relation to
the Offer Document, or gives notice of an intention to
prosecute the Responsible Entity or any of its
directors unless such notice or order has not become
public and is withdrawn by the end of the second
Business Day after it is given or made but in any
event by no later than 7 Business Days before the
Closing Date;
(B) an application is made by ASIC for an order under Part
9.5 of the Corporations Act in relation to the Offer
Document or ASIC commences an investigation or hearing
under Part 3 of the Australian Securities and
Investments Commission 1989 (Cth) in relation to the
Offer Document unless such application has not become
public and is withdrawn by the end of the second
Business Day after it is given or made but in any
event by no later than 7 Business Days before the
Closing Date;
(iv) (ASX approval) unconditional approval (or conditional
approval, provided such condition would not, in the
reasonable opinion of the Underwriters, have a material
adverse effect on the success or settlement of the Offer) by
the ASX for the admission of the Trust to the official list
of ASX and for official quotation of the Allotted Units is
refused, or is not granted before the Settlement Date (or
such later date agreed in writing by the Underwriters in
their absolute discretion) or is withdrawn on or before the
Settlement Date;
(v) (consent) any person (other than the Underwriters) whose
consent to the issue of the Offer Document is required by
the Corporations Act refuses to give their consent or having
previously consented to the issue of the Offer Document
withdraws such consent unless such withdrawn consent is
reinstated by the end of the second Business Day after it is
withdrawn but in any event by no later than 7 Business Days
before the Closing Date;
(vii) (Lodgement) the Responsible Entity fails to lodge the Offer
Document with ASIC on or before the Lodgement Date (or such
later date approved in writing by the Underwriters);
(viii) (Certificate) a Certificate which is required to be
furnished by the Responsible Entity under this agreement is
not furnished when required or a statement in that
Certificate is untrue, incorrect or misleading in a material
respect;
(ix) (Timetable) any event specified in the Timetable is delayed
for more than 2 Business Days without the prior written
consent of the Underwriters;
(x) (withdrawal) the Responsible Entity withdraws the Offer
Document, any Supplementary Offer Document or any part of
the Offer without the consent of the Underwriters;
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22.
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(xi) (material adverse change) a material adverse change occurs
or becomes known in the financial position, results of
operations or prospects of the Responsible Entity, Reckson
Associates or the Trust;
(xii) (supplementary offer document):
(A) a Supplementary Offer Document must, in the reasonable
opinion of the Underwriters, be lodged with ASIC under
the Corporations Act because the Offer Document is or
becomes defective within the meaning of section
1021B(1) of the Corporations Act;
(B) a Supplementary Offer Document is lodged with ASIC
because the Offer Document is or becomes defective
within the meaning of section 1021B(1) of the
Corporations Act; or
(C) the Responsible Entity lodges a Supplementary PDS
without the written consent of the Underwriters;
(b) (i) (misrepresentation or breach) a representation or warranty
made or given or deemed by clause 4.5 to have been made or
given by the Responsible Entity or ROP under this agreement
proves to be, or has been, or becomes, untrue or incorrect;
(ii) (breach) the Responsible Entity or ROP fails to perform or
observe any of its obligations under this agreement;
(iii) (material adverse change in financial markets) there occurs
an adverse change or disruption to the political or economic
conditions or financial markets of Australia, the United
Kingdom, the United States of America or the international
financial markets or any change or development involving a
prospective adverse change in any of those conditions or
markets;
(iv) (unauthorised alterations) without the prior written consent
of the Underwriters, which consent shall not be unreasonably
withheld or delayed, the Responsible Entity alters the
Scheme Constitution;
(v) (compliance) a contravention by the Responsible Entity, ROP
or Reckson Associates of any provision of its constitution,
the Scheme Constitution, the Corporations Act or any
requirement of the ASX or any other applicable law (except
to the extent that compliance with any applicable law has
been waived, or an exemption or modification granted, by a
Government Agency having authority to do so);
(vi) (Director) a director or executive officer of the
Responsible Entity or Reckson Associates:
(A) is charged with an indictable offence relating to any
financial or corporate matter or any regulatory body
commences any public action against the director in
his or her capacity as a director of the
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23.
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Responsible Entity or announces that it intends to
take any such action; or
(B) is disqualified from managing a corporation under
sections 206B, 206C, 206D, 206E, 206F or 206G of the
Corporations Act.
(vii) (change in law in Australia) there is introduced into the
Parliament of the Commonwealth of Australia or any State or
Territory of Australia a law or any new regulation is made
under any law, or a Government Agency, adopts a policy, or
there is a public announcement on behalf of the Government
of the Commonwealth of Australia or any State or Territory
of Australia that such a law or regulation will be
introduced or policy adopted (as the case may be);
(viii) (change in law in United States) there is introduced into
any state legislature or federal congress of the United
States of America a law or any new regulation is made under
any law, or a Government Agency, the United States Federal
Reserve or any United States regulatory authority (whether
state or federal) adopts a policy, or there is a public
announcement on behalf of any state legislature or federal
congress of the United States of America or a Government
Agency, the United States Federal Reserve or any United
States regulatory authority (whether state or federal) that
such a law or regulation will be introduced or policy
adopted (as the case may be);
(ix) (hostilities) hostilities not presently existing commence
(whether war has been declared or not) or a major escalation
in existing hostilities occurs (whether war has been
declared or not) involving any one or more of Australia, New
Zealand, the United States of America, any member of State
of the European Union, Indonesia, Japan or the People's
Republic of China or a significant terrorist act is
perpetrated anywhere in the world;
(x) (trading of securities) trading in all securities:
(A) quoted on ASX is suspended or limited in a material
respect for 1 Business Day (or substantially all of a
Business Day);
(B) quoted on NYSE is suspended or limited in a material
respect for 1 NYSE Trading Day (or substantially all
of an NYSE Trading Day); or
(C) quoted on LSE is suspended or limited in a material
respect for 1 LSE Trading Day (or substantially all of
an LSE Trading Day);
(xi) (banking moratorium) a general moratorium on commercial
banking activities in Australia, the United Kingdom or the
United States of America is declared by the relevant central
banking authority in any of those countries and remains in
force for 2 consecutive business days, or there is a
material disruption in commercial banking or security
settlement
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24.
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or clearance services in any of those countries which
remains in force for 2 consecutive business days;
(xii) (Offer Document) the Offer Document omits any information
required by the Corporations Act, contains a statement which
is misleading or deceptive or otherwise fails to comply with
the Corporations Act; and
(xiii) (material contracts) the Transaction Documents or any other
material contract summarised in the Offer Document is
terminated (whether by breach or otherwise), rescinded,
altered or amended in a material respect without the prior
written consent of the Underwriters (which consent shall not
be unreasonably withheld) or any such contract is found to
be void or voidable or, if any of those Transaction
Documents or any other material contract summarised in the
Offer Document is not signed by the Lodgement Date, it is
agreed that any of them will not be signed or will be signed
in a form which is materially different from the summary or
in a form which is not on terms which are acceptable to the
Underwriters acting reasonably.
10.2 Exercise of rights
No event specified in clause 10.1(b), 10.3(c) or 10.3(e) shall entitle
an Underwriter to exercise its rights to terminate its obligations under
this agreement unless, in the reasonable opinion of that Underwriter,
the event:
(a) has, or is likely to have, a material adverse effect on:
(i) the financial condition, financial position or financial
prospects of the Trust; or
(ii) the market price of the Offer Securities; or
(iii) the success, marketing or settlement of the Offer; or
(b) leads, or is likely to lead:
(i) to a contravention by that Underwriter of, or that
Underwriter being involved in a contravention of, the
Corporations Act or any other applicable law; or
(ii) to a liability for that Underwriter under the Corporations
Act or any other applicable law.
In forming that reasonable opinion the Underwriter will take into
account any remedy or cure which has been effected (in the case of
matters capable of remedy or cure).
10.3 Right of termination after Allotment Date
If any one or more of the following events occurs at any time in the
period from the Allotment Date to 6pm on the Instalment Shortfall Sale
Date an Underwriter may terminate its obligations under this agreement
to underwrite payment of the Final Instalment on the
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25.
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Instalment Shortfall Units (without cost or liability to itself) by
notice in writing to the Responsible Entity specifying the relevant
event:
(a) (suspension) the ASX suspends quotation of the Units for 3 or more
consecutive Business Days or removes the Trust from the official
list of ASX;
(b) (certificate) the Certificate which is required to be furnished by
the Responsible Entity under clause 8.4 is not furnished when
required or a statement in that certificate is untrue, incorrect
or misleading in a material respect;
(c) (breach or contravention) the Responsible Entity, ROP or Reckson
Associates or any director or executive officer of the Responsible
Entity, ROP or Reckson Associates commits any act of fraud,
contravenes the Scheme Constitution or any applicable law or
agreement, fails to perform any obligation under this agreement or
a representation or warranty given by the Responsible Entity or
ROP under this agreement is untrue or incorrect;
(d) (solvency) the Trust, the Responsible Entity or Reckson Associates
is or becomes insolvent;
(e) (material contracts) any of the Transaction Documents or any other
of the material contracts summarised in the Offer Document is
terminated (whether by breach or otherwise), rescinded, altered or
amended in a material respect without the prior written consent of
the Underwriters (which consent shall not be unreasonably
withheld) or is found to be void or voidable;
(f) (responsible entity) the Responsible Entity indicates an intention
to retire as responsible entity of the Trust or ceases to be the
responsible entity of the Trust without the prior written approval
of the Underwriters.
10.4 Claims
Nothing contained in this clause 10 shall prejudice or nullify any Claim
or other right (including under clause 4.6) which the Underwriters or
any other Indemnified Party may have against the Responsible Entity or
ROP, or which the Responsible Entity or ROP may have against the
Underwriters, for or arising out of any breach of covenant, warranty or
representation or failure to observe or perform an obligation under this
agreement.
10.5 Notification
The Responsible Entity must notify the Underwriters in writing
immediately after becoming aware that any of the events referred to in
clause 10.1 or 10.3 has occurred or is about to occur.
10.6 Effect of termination
(a) In the event that an Underwriter (the "Terminating Underwriter")
terminates its obligations under this agreement pursuant to clause
10.1 or 10.3 or refuses to waive fulfilment of a condition under
clause 2.1, it shall thereupon be relieved of its
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26.
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obligations under this agreement and shall be entitled to payment
and reimbursement in accordance with clause 9.3.
(b) The exercise by the Terminating Underwriter of its rights upon the
happening of an event specified in clause 10.1 or 10.3 does not
automatically terminate the obligations of the other Underwriter
(the "Remaining Underwriter").
(c) If the Terminating Underwriter gives notice to the Remaining
Underwriter of its intention to terminate its obligations under
this agreement upon the happening of an event specified in clause
10.1 or 10.3 or the Terminating Underwriter refuses to waive
fulfilment of a condition under clause 2.1, the Remaining
Underwriter must elect by notice in writing to the Terminating
Underwriter and the Responsible Entity within 2 Business Days of
the Terminating Underwriter terminating its obligations under this
agreement as a result of that event to:
(i) also terminate its obligations under this agreement; or
(ii) assume the obligations of the Terminating Underwriter under
this agreement.
If the Remaining Underwriter fails to give notice under this clause
10.6(c) it shall be treated as having also terminated its obligations
under this agreement.
(d) If the Remaining Underwriter gives notice under paragraph (c)(ii)
prior to the Settlement Date that it will assume the obligations
of the Terminating Underwriter under this agreement the Remaining
Underwriter in addition to the fees to which it is entitled under
clause 9.1 will also be entitled to the fees that would have been
payable to the Terminating Underwriter under clause 9.1 if it had
not terminated.
(e) If:
(i) an Underwriter terminates its obligations under this
agreement under clause 10.3; and
(ii) the Remaining Underwriter assumes the obligations of the
Terminating Underwriter under clause 10.6(c),
the Remaining Underwriter in addition to the fees to which it is
entitled under clause 9.1 will also be entitled to the fees that
would have been payable to the Terminating Underwriter under
clause 9.1 if it had not terminated.
11. ADVERTISING AND PUBLIC ANNOUNCEMENTS
11.1 Promotion of Offer
The Responsible Entity must at its own cost provide such assistance in
connection with the promotion, advertising and marketing of the Offer as
is reasonably required by the Underwriters from time to time. The
content and other details of any promotional material (which includes
any media advertising and marketing material and the format of any
roadshow presentation) must be agreed between the Responsible Entity and
the Underwriters (such agreement not to be unreasonably withheld or
delayed) prior to any
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statement or release (provided that nothing in this agreement prevents
the Responsible Entity from making any announcement which it is required
by the Corporations Act or the Listing Rules or any other applicable law
to make).
11.2 Responsibility for promotion
The Responsible Entity is fully responsible for:
(a) the contents of any promotional material relating to the Offer
except where the content of that promotional material has not been
agreed under clause 11.1; and
(b) all announcements and disclosures in respect of the Offer which
have been agreed between the Responsible Entity and the
Underwriters.
11.3 Disclosure
(a) The Responsible Entity agrees that subject to any disclosure
required by the Corporations Act or the Listing Rules or any other
applicable law they must not make any public or media announcement
or disclosure in relation to the Offer, its progress, the result
of the Offer, the Transaction or their underlying business without
the prior approval of the Underwriters which must not be
unreasonably withheld or delayed.
(b) For the avoidance of doubt clause 11.3(a) does not prevent Reckson
Associates making any public or media announcement or disclosure
in relation to the Offer, its progress, the result of the Offer,
the Transaction or its underlying business:
(i) to the extent required by, the operating rules of the NYSE
or any other applicable law; or
(ii) in response questions or requests for information from
investors or media
provided that such disclosure is not inconsistent with the Offer
Document.
12. ACCESS TO INFORMATION
12.1 Access and information
The Responsible Entity agrees to allow the Underwriters and their
officers and advisers reasonable access to their premises, books and
records at all reasonable times (before the Allotment Date or,
thereafter, during the currency of any regulatory or other proceedings
or investigation in connection with the Offer Document or the Offer) to
enable the Underwriters to obtain any information which the Underwriters
reasonably require in relation to the Offer or the Transaction.
12.2 ASX and ASIC
Without limiting the generality of clause 12.1, the Responsible Entity
must promptly give the Underwriters copies of notifications to and
approvals of ASX and ASIC, evidence of any lodging of the Offer Document
and any other similar material relating to the Offer.
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12.3 Due diligence materials
The Responsible Entity must provide the Underwriters with full and free
access to, and on request, copies of, the Due Diligence Report, the
Verification Material and all materials and documents used or created in
connection with the preparation of the Due Diligence Report and the
Verification Material, and must maintain those materials and documents
until the Final Instalment Sale Date, and thereafter for at least six
years from the Final Instalment Sale Date for that purpose.
13. ACKNOWLEDGMENTS
13.1 Acknowledgments
The Responsible Entity and ROP acknowledge that in respect of each
Underwriter:
(a) the Underwriter is not retained to and is not required to give
tax, legal, regulatory, accountancy or other specialist or
technical advice in connection with the Offer;
(b) while the Underwriter will assist in the co-ordination of due
diligence investigations in connection with the Offer, it will
rely on its own expertise and on that of specialist legal,
accounting and tax advisers in respect of that due diligence;
(c) any advice, whether written or oral, given by the Underwriter to
it, or any communications between the Underwriter and the
Responsible Entity or ROP may only be used and relied on by the
Responsible Entity or ROP as the case may be and may not be used
or relied on by any third party and may not be disclosed to any
third party without the prior written approval of the Underwriter
(other than the Responsible Entity's and ROP's professional
advisers who may place no reliance on such advice);
(d) the Underwriter is not obliged to disclose to the Responsible
Entity or ROP, or utilise for the benefit of the Responsible
Entity or ROP, any non-public information which the Underwriter
obtains in the normal course of its business where such disclosure
or use would result in a breach of any obligation of
confidentiality or any internal Chinese Wall policies of the
Underwriter; and
(e) without prejudice to any claim the Responsible Entity or ROP may
have against the Underwriter, no proceedings may be taken against
any director, officer, employee or agent of the Underwriter in
respect of any claim that the Responsible Entity or ROP may have
against the Underwriter; and
(f) it is contracting with that Underwriter on an arms-length basis to
provide the services described in this agreement and the
Underwriter is not assuming any duties or obligations (fiduciary
or otherwise) in respect of it other than those expressly set out
in this agreement.
13.2 Agreements
Each of the Responsible Entity and ROP and each of the Underwriters:
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(a) agree that it is solely responsible for making its own independent
judgements with respect to the Offer; and
(b) confirm that it is not the intention to create a fiduciary
relationship between them.
14. GST
14.1 Definitions
Words defined in the A New Tax System (Goods and Services Tax) Xxx 0000
(Cth) have the same meaning in this clause.
14.2 GST payable in addition to fees
In addition to paying the fees, costs, expenses and disbursements
referred to in clauses 9.1 and 9.2 (which are exclusive of GST) and in
addition to any other amounts, the Responsible Entity must:
(a) pay to the Underwriters an amount equal to any GST payable on any
supply by the Underwriters under or in connection with this
agreement, without deduction or set-off of any other amount; and
(b) make that payment:
(i) as and when the fees, costs, expenses and disbursements
referred to in clauses 9.1 and 9.2 or other consideration or
part of it must be paid or provided; and
(ii) if later, such later time being not more than 5 Business
Days after a tax invoice has been issued by the
Underwriters,
provided that before that payment is due to be made the
Underwriters have given a tax invoice to the Responsible Entity in
respect of the GST so payable.
14.3 GST on claims and expenses
Without limiting the operation of clause 14.2:
(a) if a payment to satisfy a claim or a right to claim under or in
connection with this agreement (for example, for misleading or
deceptive conduct or for misrepresentation or for a breach of any
warranty or for indemnity or for reimbursement of any cost or
expense) gives rise to a liability to pay GST, the payer must pay,
and indemnify the payee against the amount of that GST; and
(b) if a party has a claim under or in connection with this agreement
for a cost or expense on which that party must pay GST, the claim
is for the cost or expense plus all GST (except any GST for which
that party is entitled to an input tax credit).
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15. NOTICES
15.1 How to give a notice
A notice, consent or other communication under this document is only
effective if it is:
(a) in writing, signed by or on behalf of the person giving it;
(b) addressed to the person to whom it is to be given; and
(c) either:
(i) delivered or sent by pre-paid mail (by airmail, if the
addressee is overseas) to that person's address; or
(ii) sent by fax to that person's fax number and the machine from
which it is sent produces a report that states that it was
sent in full.
15.2 When a notice is given
A notice, consent or other communication that complies with this clause
is regarded as given and received:
(a) if it is delivered or sent by fax:
(i) by 5:00pm (local time in the place of receipt) on a Business
Day - on that day; or
(ii) after 5:00pm (local time in the place of receipt) on a
Business Day, or on a day that is not a Business Day - on
the next Business Day; and
(b) if it is sent by mail - on actual receipt.
15.3 Address for notices
A person's address and fax number are those set out below, or as the
person notifies the sender:
Responsible Entity
Address: Xxxxx 00 Xxx Xxxxxxx Xxxxx
0 Xxxxxxx Xxxxxx Xxxxxx XXX 0000
Fax number: x000 0000 0000
Attention: Company Secretary
ROP
Address: Reckson Associates Realty Corp., 000 Xxxxxxxxxxx Xxxx
Xxxxxxxx XX 00000-0000, XXX
Fax number: + 000 000 0000
Attention: Xx Xxxxxxx Xxxxxxx
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UBS
Address: Xxxxx 00, Xxxxxxxx Xxxxxxx Tower,
0 Xxxxxx Xxxxx, Xxxxxx XXX 0000
Fax number: x000 0000 0000
Attention: Xxxxx Xxxxxx
Citigroup
Address: Citigroup Centre, 0 Xxxx Xxxxxx, Xxxxxx XXX 0000
Fax number: x000 0000 0000
Attention: Xxxxx Xxxxxx
16. AMENDMENT AND ASSIGNMENT
16.1 Amendment
This agreement can only be amended, supplemented, replaced or novated by
another agreement signed by the parties.
16.2 Assignment
A party may only dispose of, declare a trust over or otherwise create an
interest in its rights under this agreement with the consent of each
other party.
17. GENERAL
17.1 Governing law
(a) This agreement is governed by the law in force in New South Wales.
(b) Each party submits to the non-exclusive jurisdiction of the courts
exercising jurisdiction in the New South Wales, and any court that
may hear appeals from any of those courts, for any proceedings in
connection with this agreement, and waives any right it might have
to claim that those courts are an inconvenient forum.
17.2 Giving effect to this agreement
Each party must do anything (including execute any document), and must
ensure that its employees and agents do anything (including execute any
document), that any other party may reasonably require to give full
effect to this agreement.
17.3 Waiver of rights
A right may only be waived in writing, signed by the party giving the
waiver, and:
(a) no other conduct of a party (including a failure to exercise, or
delay in exercising, the right) operates as a waiver of the right
or otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as a
waiver of that right if it arises again; and
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(c) the exercise of a right does not prevent any further exercise of
that right or of any other right.
17.4 Operation of this agreement
(a) This agreement and the Mandate Letter contain the entire agreement
between the parties and Reckson Associates about its subject
matter. Any previous understanding, agreement, representation or
warranty relating to that subject matter is replaced by this
agreement and the Mandate Letter and has no further effect.
(b) Any right that a person may have under this agreement is in
addition to, and does not replace or limit, any other right that
the person may have.
(c) Any provision of this agreement which is unenforceable or partly
unenforceable is, where possible, to be severed to the extent
necessary to make this agreement enforceable, unless this would
materially change the intended effect of this agreement.
17.5 Inconsistency with other documents
If this agreement is inconsistent with any other document or agreement
between the parties, except as specifically provided this agreement
prevails to the extent of the inconsistency.
17.6 Time is of the essence
Time is of the essence of this agreement.
17.7 Counterparts
This agreement may be executed in counterparts.
17.8 Attorneys
Each person who executes this agreement on behalf of a party under a
power of attorney declares that he or she is not aware of any fact or
circumstance that might affect his or her authority to do so under that
power of attorney.
17.9 Responsible Entity
(a) The Responsible Entity enters into this agreement only in its
capacity as responsible entity of the Trust and in no other
capacity. A liability arising under or in connection with this
agreement can be enforced against the Responsible Entity only to
the extent to which it can be satisfied out of the property of the
Trust out of which the Responsible Entity is actually indemnified
for the liability. This limitation of the Responsible Entity's
liability applies despite any other provision of this agreement
and extends to all liabilities and obligations of the Responsible
Entity in any way connected with any representation or other
conduct related to this agreement.
(b) Any party to this agreement may not xxx the Responsible Entity in
any capacity other than as responsible entity in respect of the
Trust, including seeking the
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appointment to the Responsible Entity of a receiver (except in
relation to property of the Trust), a liquidator, administrator or
any similar person.
(c) The provisions of this clause 17.9 will not apply to any
obligation or liability of the Responsible Entity to the extent
that it is not satisfied because under the Scheme Constitution or
by operation of law there is a reduction in the extent of the
Responsible Entity's indemnification out of the assets of the
Trust, as a result of the Responsible Entity's fraud, negligence
or breach of trust.
(d) The Responsible Entity is not obliged to enter into any commitment
or obligation under this agreement unless its liability is limited
in the same manner as in this clause 17.9.
17.10 Indemnities
The indemnities in this agreement are continuing obligations independent
from the other obligations of the Responsible Entity and ROP and
continue after this agreement ends or after a Terminating Underwriter
terminates its obligations under this agreement. It is not necessary for
a party to incur expense or make payment before enforcing a right of
indemnity under this agreement.
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SCHEDULE 1
CERTIFICATE
To: UBS AG
Citigroup
Attention: Xxxxx Xxxxxx (UBS AG)
Xxxxx Xxxxxx (Citigroup)
We hereby certify on behalf of Reckson Australia Management
Limited as the responsible entity for the Reckson New York
Property Trust (the Responsible Entity), that, except as set out
below, the following statements are as at the date of this
certificate, to the best of our knowledge having made due
inquiries of all of the directors of each of the Responsible
Entity, true and not misleading or deceptive:
(a) the conditions set out in clause 2.1 have been satisfied or
otherwise waived by the Underwriters;
(b) the Responsible Entity and ROP have complied with all of
their obligations in respect of the Offer whether arising
under the Underwriting Agreement, the Corporations Act, the
Listing Rules, the Offer Document, the Timetable or
otherwise;
(c) there has not been any breach by the Responsible Entity or
ROP of any of the warranties or representations given or
deemed to be given by the Responsible Entity or ROP in
clause 4 of the Underwriting Agreement;
(d) nothing has occurred which is not described in the Offer
Document that:
(i) has, or is likely to have, a material adverse effect
on:
(A) the financial condition, financial position or
financial prospects of the Trust;
(B) the market price of the Offer Securities; or
(C) the success, marketing or settlement of the
Offer; or
(ii) leads, or is likely to lead:
(A) to a contravention by an Underwriter of, or an
Underwriter being involved in a contravention
of, the Corporations Act or any other applicable
law; or
(B) to a liability for an Underwriter under the
Corporations Act or any other applicable law;
(e) no occasion has arisen for the issue of a Supplementary
Offer Document;
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(f) the representations and warranties contained in clause 4
(and given by or deemed to be given the Responsible Entity
and ROP are true and correct as at the date of this
certificate in respect of the facts and circumstances
existing as at today; and
(g) no Event of Termination has occurred.
[Set out details of any relevant exceptions]
For the purposes of this Certificate:
(a) "Underwriting Agreement" means the underwriting agreement
for the issue of Offer Securities dated on or about 12
August 2005 between UBS AG, Citigroup and the Responsible
Entity and ROP; and
(b) words and expressions used shall have the meanings ascribed
to them in the Underwriting Agreement.
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SCHEDULE 2
WARRANTIES
Part 1: The Parties
(a) (status):
(ii) The party is a company limited by shares under (except in
the case of UBS and ROP) the Corporations Act
(iii) Each of UBS and ROP is duly incorporated under the laws of
the place of its incorporation.
(b) (power) The party has full legal capacity and power to enter into
this agreement, and in the case of the Responsible Entity the
Subscription Agreement, and to carry out the transactions that
this agreement and, in the case of the Responsible Entity the
Subscription Agreement, contemplates.
(c) (corporate authority) The party has taken all corporate action
that is necessary or desirable to authorise its entry into this
agreement, and in the case of the Responsible Entity the
Subscription Agreement, and its carrying out the transactions that
this agreement, and in the case of the Responsible Entity the
Subscription Agreement, contemplates.
(d) (Authorisations) The party holds each Authorisation that is
necessary or desirable to:
(i) execute this agreement, and in the case of the
Responsible Entity the Subscription Agreement, and to
carry out the transactions that this agreement, and in
the case of the Responsible Entity the Subscription
Agreement contemplates;
(ii) ensure that this agreement, and in the case of the
Responsible Entity the Subscription Agreement, is
legal, valid, binding and admissible in evidence; and
(iii) enable it to properly carry on its business,
and it is complying with any conditions to which any of these
Authorisations is subject.
(e) (agreement effective) This agreement, and in the case of the
Responsible Entity the Subscription Agreement, constitutes legal,
valid and binding obligations of the party, enforceable against it
in accordance with its terms subject to any necessary stamping or
registration.
(f) (no contravention) Neither the execution of this agreement, and in
the case of the Responsible Entity the Subscription Agreement, nor
the carrying out by the party of
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37.
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the transactions that this agreement, and in the case of the
Responsible Entity the Subscription Agreement, contemplates, does
or will:
(i) contravene any law to which it is subject or any order of
any Government Agency that is binding on it;
(ii) contravene any Authorisation;
(iii) contravene any undertaking or instrument binding on it; or
(iv) contravene its constitution, and in the case of the
Responsible Entity, the Scheme Constitution.
Part 2: The Responsible Entity and ROP
(a) (Offer Document) The Offer Document and the Pathfinder Document:
(i) will comply with all applicable laws, including the
Corporations Act (as varied by any modification of, or any
exemption from, the Corporations Act given by ASIC pursuant
to the Corporations Act);
(ii) unless the Underwriters otherwise consent in writing (acting
reasonably), will be issued in the form initialled by the
Responsible Entity and the Underwriters (and in no other
form);
(iii) will not contain a statement which is misleading or
deceptive and will not be one from which there is an
omission of information required by the Corporations Act;
and
(iv) will not be misleading or deceptive and will not be likely
to mislead or deceive.
(b) (conduct) The Responsible Entity, ROP and Reckson Associates have
not engaged in, and will not engage in, conduct that is misleading
or deceptive or which is likely to mislead or deceive in
connection with the issue of the Pathfinder Document, the Offer
Document, the making of the Offer, the Transaction, or making the
call for the Final Instalment.
(c) (no contravention of disclosure obligations) as from the Allotment
Date, the Responsible Entity will not breach section 674 of the
Corporations Act or any provision of Chapter 3 of the Listing
Rules;
(d) (other material) At the time of publication and at all times on or
before the expiry of the Underwritten Period, any announcements,
advertisements publicity and roadshow materials made or published
by the Responsible Entity, ROP or Reckson Associates or on their
behalf or by a related body corporate (each a "Publication") in
relation to the Offer, the Transaction or making the call for the
Final Instalment shall:
(i) not be misleading or deceptive or be likely to mislead
or deceive; and
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(ii) comply with all applicable laws,
and the Responsible Entity and ROP must use their best endeavours
to ensure that persons who issue any Publication do likewise.
(e) (opinions and belief) Any statement of opinion or belief contained
in the Pathfinder Document, the Offer Document or in any
Publication shall be truly and honestly held by the person making
the statement, and the maker of the statement shall have
reasonable grounds for holding the opinion or belief.
(f) (future matters) There are reasonable grounds for the making of
all statements contained in the Pathfinder Document, the Offer
Document or any Publication provided by the Responsible Entity,
ROP or Reckson Associates relating to future matters (including,
without limitation, financial forecasts).
(g) (printed copies) As soon as practicable after the Offer Document
is lodged with ASIC, the number of printed copies of the Offer
Document that the Underwriters have notified the Responsible
Entity before the date of the Offer Document will be delivered to
the Underwriters.
(h) (information) All information provided or to be provided to the
Underwriters or their advisers in relation to the Transaction or
the Offer by the Responsible Entity, ROP or Reckson Associates or
on their behalf or by their solicitors, auditors or officers or
any other adviser or consultant or by any expert (as defined in
the Corporations Act) was, or will be when provided in its final
form, true, complete and accurate in all material respects and the
Responsible Entity and ROP will, and will procure that Reckson
Associates will, disclose to the Underwriters all information
material to the making of an informed investment decision in
relation to the Offer Securities.
(i) (due diligence) The Due Diligence Program will be properly
implemented and fully carried out in accordance with the Planning
Memorandum, statements contained in the Offer Document will be
verified by appropriately qualified persons, the Due Diligence
Results will be the results of the investigations described in the
Planning Memorandum and the Verification Material will contain the
material collected to verify the statements made in the Offer
Document (and will be accurate in all material respects).
(j) (ongoing due diligence) The Responsible Entity will continue until
the Allotment Date to conduct the Due Diligence Program in
accordance with the Planning Memorandum.
(k) (winding up) During the Underwritten Period, each of the
Responsible Entity, ROP and Reckson Associates (or any entity
controlled by the Responsible Entity) shall not:
(i) pass any resolution that it be wound up;
(ii) enter into any scheme or composition with or for the
benefit of its creditors;
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(iii) have a receiver or manager appointed to the whole or
any part of its assets or undertakings;
(iv) permit any breach or default whereby it is liable to
be wound up; or
(v) have an administrator appointed to it; or
(v) do any other act which has analogous effect under the laws
of any jurisdiction having application to it.
(l) (no contravention) None of the Responsible Entity, ROP or Reckson
Associates (and none of their related bodies corporate) has
contravened, and before the expiry of the Underwritten Period none
of them will contravene, in any material respect, any provision of
its constitution, the Scheme Constitution, the Corporations Act
(as varied by any modification of, or exemption from, the
Corporations Act given by ASIC pursuant to section 741 of the
Corporations Act) and any other applicable law or requirement of
ASX (except, in the case of a Listing Rule, where compliance with
that Listing Rule has been waived in writing by ASX or any
agreement binding on it).
(m) (litigation) Except as disclosed in the Offer Document, none of
the Responsible Entity, ROP or Reckson Associates (or any of their
related bodies corporate) is involved in any litigation,
arbitration or administrative proceeding relating to claims or
amounts which are material in the context of the Offer nor, so far
as any of them is aware, is any such litigation, arbitration or
administrative proceeding pending or threatened.
(n) (material contracts) There:
(i) is no contract to which the Responsible Entity, the
Trust, the US REIT, the US LLC or Reckson Associates
(or any of their related bodies corporate) is a party
which is material to the making of an informed
investment decision in relation to the Offer which has
not been disclosed in the Offer Document;
(ii) has not been, and will not be before the expiry of the
Underwritten Period, a breach by the Responsible
Entity, the Trust, the US REIT, the US LLC or Reckson
Associates (or any of their related bodies corporate)
in a material respect of any provision of any contract
which is material to the making of an informed
investment decision in relation to the Offer
Securities;
(o) (Prescribed Occurrence) Except as disclosed in the Offer Document
or with the prior written consent of the Underwriters during the
period commencing on the date of this agreement and ending 90 days
after the Allotment Date, no Prescribed Occurrence will occur in
respect of the Responsible Entity, the Trust, the US REIT or the
US LLC (or any of their controlled entities).
(p) (financial position) Except as disclosed in the Offer Document:
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(i) there has been no occurrence which has or will (either
itself or together with any other occurrence)
materially and adversely affect the value of the Offer
Securities, the financial position, profitability or
prospects of the Responsible Entity, or the Trust, any
of the businesses of the Responsible Entity, or the
Trust or any of the property or assets of the
Responsible Entity or the Trust or any of the property
or assets to be acquired pursuant to the Transaction
by the US LLC, the US REIT, the Responsible Entity or
the Trust; and
(ii) none of the business, assets, liabilities, financial
position or prospects of the Responsible Entity or the
Trust or any of the property or assets to be acquired
pursuant to the Transaction by the US LLC, the US
REIT, the Responsible Entity or the Trust has been
materially and adversely affected by any matter either
financial or otherwise.
(q) (Certificate) The contents of each Certificate given under this
agreement will be true and correct in all material respects as at
the date the Certificate is given.
(r) (no further issues) During the period commencing on the date of
this agreement and ending on the day which is 90 days after the
Allotment Date, none of the Responsible Entity (nor any associated
trust or company raising funds for the use of the Trust), the US
REIT or the US LLC shall make, agree to make or announce any
issues of units or equity securities (as defined in the Listing
Rules) or listed debt securities or any securities convertible
into or exchangeable for any such equity securities or listed debt
securities, without the prior written consent of the Underwriters,
which consent shall not be unreasonably withheld or delayed, other
than the issue of the Offer Securities pursuant to the Offer.
(s) (conduct of business) Until 90 days after expiry of the
Underwritten Period except as contemplated in the Offer Document,
the Responsible Entity and Reckson Associates will carry on the
business of the Trust, the US REIT and the US LLC in the ordinary
course and will not dispose or agree to dispose of, the whole or
any substantial asset or part of the business of the Trust where
that disposal would require approval of holders of Units, without
the prior written consent of the Underwriters.
(t) (licences) The Responsible Entity, Reckson Associates and ROP hold
all licences (including in the case of the Responsible Entity a
licence authorising it to act as responsible entity of the Trust),
permits, Authorisations or consents which are material to the
conduct of the Responsible Entity's or Reckson Associates' or
ROP's business (as it relates to the Trust, the US REIT and the US
LLC) and the business of the Trust and all such licences, permits,
Authorisations and consents are in full force and effect and not
liable to be revoked or not renewed unless otherwise disclosed in
the Offer Document.
(u) (Constitution) The copy of the Scheme Constitution previously
provided to the Underwriters by the Responsible Entity is in all
material respects a true, correct, up to date and complete copy.
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(v) (trust) The trust created under the Scheme Constitution is a valid
and subsisting trust and there is no proposal to terminate,
reconstitute or resettle that trust and that trust is registered
under Chapter 5C of the Corporations Act.
(w) (Constitution compliance) The Scheme Constitution complies with
the Corporations Act and any other applicable law (except to the
extent the compliance with any applicable law has been waived or
an exemption granted by the ASX or a Government Agency having
authority to do so), the Responsible Entity will comply with the
Scheme Constitution, and the Scheme Constitution will not be
amended in a manner that would:
(i) affect the provisions relating to calls;
(ii) require approval of holders of Units; or
(iii) be reasonably expected to be adverse to the interests
of holders of Units,
before the expiry of the Underwritten Period without the prior
written consent of the Underwriters, which consent shall not be
unreasonably withheld or delayed.
(x) (Responsible Entity) The Responsible Entity has been duly
appointed as the Responsible Entity of the Trust under Chapter 5C
of the Corporations Act and there is no proposal that the
Responsible Entity retires.
(y) (right of indemnity) The Responsible Entity:
(i) has the right to be fully indemnified out of the Trust
in relation to its liabilities under this agreement,
and the right has not been modified, released or
diminished in any way;
(ii) the Trust's assets are sufficient to satisfy that
right in full; and
(iii) has not released or disposed of its equitable lien
over the Trust's assets.
(z) (Offer Securities) The Offer Securities will be validly issued and
allotted free from all liens, charges and other encumbrances
except for the obligation to pay the Final Instalment.
(aa) (Transaction Documents) Each Transaction Document is a legal valid
and binding obligation enforceable in accordance with its terms.
No Transaction Document is voidable or liable to rescission for
any reason and no Transaction Document or its performance
contravenes any applicable law.
(bb) (ASX waivers) The Responsible Entity has been granted all waivers
of the Listing Rules and all declarations and modifications of the
Corporations Act which are required to permit:
(i) the Responsible Entity to make the Offer;
(ii) the Trust to become a listed entity on ASX; and
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42.
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(iii) Reckson Associates and the US LLC to exercise their
rights under the LLC Agreement and the Call Option.
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SCHEDULE 3
INDEMNITY
1. Indemnity
Subject to paragraph 2 of this schedule 3, the Responsible Entity and
ROP agree to jointly and severally indemnify and keep indemnified the
Underwriters and their related bodies corporate and each of their
directors, officers, employees and advisers (each an "Indemnified Party"
and collectively the "Indemnified Parties") from and against all Losses
directly or indirectly suffered by, or Claims made against, an
Indemnified Party arising out of or in connection with the appointment
of the Underwriters pursuant to this agreement including but not limited
to:
(a) (Offer Documents) the issue of the Offer Document, or the making,
conduct, or settlement of the Offer (including Losses or Claims
arising out of or in connection with the preparation for, or
involvement in, investigations conducted by ASIC in relation to
the issue of the Offer Document or the Offer);
(b) (breach) the Responsible Entity or ROP failing to perform or
observe any of its obligations or undertakings under this
agreement or any other obligations binding on it;
(c) (misrepresentation) any representation or warranty made or given
under this agreement or deemed to have been made or given by the
Responsible Entity or ROP under clause 4.5 of this agreement
proving to have been untrue or incorrect;
(d) (authorised publications) any roadshow presentation, announcement,
advertisement or publicity made or distributed by or on behalf of
an Indemnified Party in relation to the Offer with the prior
approval of the Responsible Entity and ROP;
(e) (generally) any claim that an Indemnified Party has any liability
under the Corporations Act (including sections 1041H and 1041I) or
any other applicable law in relation to the Offer;
(f) (issue) the issue of the Offer Securities; and
(g) (Instalment Shortfall Units) the forfeiture and sale of the
Instalment Shortfall Units,
provided that Losses or Claims the subject of this indemnity shall not
include:
(i) sub-underwriting fees and other fees that are the
responsibility of the Underwriters under clause 9.1 of this
agreement; or
(ii) loss or damage suffered solely as a result of the
Underwriters being required to subscribe for the Shortfall
Securities or pay the Unpaid Instalment Amount.
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Each of the paragraphs (a) to (g) (inclusive) of this paragraph 1 shall
be construed independently and no paragraph shall be limited by
implications arising from any other paragraph.
2. Extent of indemnity
The indemnity in paragraph 1 of this schedule 3 does not extend to and
shall not be deemed to be an indemnity against Losses suffered by, or
Claims made against, an Indemnified Party unless those Losses or Claims
are finally judicially determined to result primarily from the
negligence, fraud, lack of good faith or wilful misconduct of that
Indemnified Party.
3. Notice
If the Underwriters become aware of any matter in respect of which an
Indemnified Party wishes to claim for indemnification under the
indemnity contained in this schedule 3, the Underwriters must promptly
notify the Responsible Entity and ROP of the substance of that matter.
4. Failure to notify
The failure of the Underwriters to notify the Responsible Entity and ROP
pursuant to paragraph 3 of this schedule 3 shall not release the
Responsible Entity and ROP from any obligation or liability which they
may have pursuant to paragraph 1 of this schedule 3 except that such
liability shall be reduced to the extent to which:
(a) any of the Responsible Entity and ROP has suffered material damage
or material loss; or
(b) the amount the subject of the indemnity under paragraph 1 of this
schedule 3 has increased,
as a result of the failure to so notify.
5. Benefits of indemnity
Each Indemnified Party, whether or not a party to this agreement, shall
be entitled to the benefit of the provisions in this schedule 3 and
these provisions may be enforced on that Indemnified Party's behalf by
the Underwriters.
6. Preservation of rights
Subject to paragraph 2 of this schedule 3, the rights of an Indemnified
Party under this agreement shall not in any way be prejudiced or
affected by:
(a) any approval given by that party in relation to the Offer Document
or any roadshow presentation, announcement, advertisement or
publicity made or distributed in relation to the Offer with the
prior approval of the Responsible Entity and ROP (whether before
or after the date of the Offer Document) (collectively the "Public
Material");
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45.
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(b) any consent to be named in the Public Material;
(c) any knowledge (actual or constructive) acquired by the Indemnified
Party after the date of this agreement of any failure by the
Responsible Entity or ROP to perform or observe any of its
obligations under this agreement;
(d) termination of this agreement under clause 2 or any lawful
termination by the Underwriters of the obligations to underwrite
the Offer under clause 9 of this agreement;
(e) any inaccuracy in any representation or warranty made or deemed to
have been made by the Responsible Entity or ROP under this
agreement; or
(f) any other fact, matter or thing which might otherwise constitute a
waiver of or in any way prejudice or affect any right of an
Indemnified Party.
7. Responsible Entity entitled to defend or institute proceedings
In respect of an Indemnified Claim, the Responsible Entity and ROP
shall, subject to paragraphs 10, 11 and 12 of this schedule 3, be
entitled to defend the Indemnified Claim or institute such legal or
other proceedings in the name of any of the Indemnified Parties and
conduct the same under the sole management and control of the
Responsible Entity or ROP, as the case may be. The Responsible Entity
and ROP must diligently pursue any defence it conducts or any
proceedings it takes under this schedule 3 and must consult with and
keep the Underwriters and any relevant Indemnified Party informed of the
progress of the defence or the prosecution of such proceedings.
8. Separate representation
Notwithstanding paragraph 7 of this schedule 3, where the Responsible
Entity or ROP is conducting a defence of an Indemnified Claim or
proceedings in respect of an Indemnified Claim in the name of an
Indemnified Party, the Indemnified Party may engage its own legal or
other representation and participate in those proceedings but any
reasonable expenses incurred by it in relation to those proceedings
shall only be borne by the Responsible Entity and ROP to the extent that
those expenses are:
(a) incurred prior to the Responsible Entity or ROP taking over
conduct of that proceeding; or
(b) incurred with the prior written authority of the Responsible
Entity or ROP.
9. Obligations of Indemnified Parties
The Indemnified Parties, subject only to paragraph 10 of this schedule
3, must:
(a) take such reasonable action as the Responsible Entity or ROP
requests to avoid, dispute, resist, appeal, compromise or defend
any Indemnified Claim in respect of it;
(b) not settle any Indemnified Claim without the prior written consent
of the Responsible Entity or ROP (such consent not to be
unreasonably withheld);
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46.
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(c) render all reasonable assistance and co-operation to the
Responsible Entity or ROP in the conduct of any legal or other
proceedings in respect of an Indemnified Claim;
(d) do anything reasonably necessary or desirable to ensure that the
Responsible Entity or ROP is subrogated to and enjoys the benefit
of the rights of the Indemnified Parties in relation to any
cross-claims.
The Underwriters shall be under no obligation to the Responsible Entity
in respect of a failure by another Indemnified Party to observe the
provisions of this paragraph 9 of this schedule 3.
10. Conditions precedent to Indemnified Parties' obligations
The Indemnified Parties are under no obligation under paragraph 9 of
this schedule 3 unless at the time the Responsible Entity or ROP
requests any of the Indemnified Parties to take any action:
(a) the Responsible Entity or ROP agrees to indemnify the Indemnified
Parties against all Loss incurred by the Indemnified Parties in
taking the action required, as and when they fall due, including
legal costs and disbursements of its lawyers on a full indemnity
basis and the cost of any involvement of any officers of the
Underwriters at normal commercial rates;
(b) the Indemnified Parties, acting reasonably, form the opinion that
the Responsible Entity or ROP has and will have available funds to
satisfy any of the moneys payable under paragraph 10(a) of this
schedule 3, as and when the same become due for payment; and
(c) if the taking of that action would, in the reasonable opinion of
the Underwriters, lead to a risk of damage to an Indemnified
Party's reputation or standing.
11. No Settlement without consent
The Responsible Entity and ROP must not (without the prior written
consent of the Underwriters) settle, compromise or consent to the entry
of any judgment in relation to any Indemnified Claim unless:
(a) such settlement, compromise or consent does not include a
statement or admission that an Indemnified Party is or was at
fault or culpable, failed to act or contravened any applicable
law; and
(b) the Responsible Entity and ROP obtain an unconditional release of
each Indemnified Party from all liability arising out of such
Indemnified Claim.
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12. Right to assume control of proceedings
An Indemnified Party has a right at any time to reassume any legal or
other proceedings defended or instituted by the Responsible Entity or
ROP in the name of the Indemnified Party as contemplated by paragraph 7
of this schedule 3 (Reassumed Claim). If an Indemnified Party does this:
(a) it will have the right to conduct the same under its sole
management and control and will have absolute discretion with
regards to the conduct of those proceedings including any decision
to settle, compromise or consent to the entry of any judgment in
relation to any Reassumed Claim the subject of those proceedings
but, in doing so, will act reasonably and consult with and take
account of the views of the Responsible Entity or ROP so far as is
reasonably possible; and
(b) the Responsible Entity and ROP must:
(i) render all reasonable assistance and cooperation to the
Indemnified Party in the conduct of any Reassumed Claim; and
(ii) do anything reasonably necessary or desirable to ensure that
the Indemnified Party is subrogated to and enjoys the
benefits of the rights of the Responsible Entity or ROP in
relation to any cross claims,
except where the taking of that action would, in the reasonable
opinion of the Responsible Entity or ROP, lead to a risk of damage
to the Responsible Entity's or ROP's reputation or standing; and
(c) any agreement by the Responsible Entity or RPO to indemnify that
Indemnified Party under paragraph 10(a) of this schedule 3 in
respect of the relevant legal or other proceedings shall no longer
apply.
Paragraph (c) above shall not affect the operation of the indemnity
under paragraph 1 of this schedule 3.
13. Contractual contribution
If for any reason the indemnities contained in this schedule 3 are
unavailable or insufficient to hold harmless any Indemnified Party
against any Indemnified Claim (other than as a result of the operation
of paragraph 2 of this schedule 3 then the Responsible Entity and ROP
each agree to contribute to the relevant Indemnified Claim in accordance
with paragraphs 14 to 18 of this schedule 3, in all cases to the maximum
extent allowed by law.
14. Proportional contribution
The respective proportional contribution of the Responsible Entity and
ROP (on the one hand) and the Indemnified Parties (on the other hand) in
relation to an Indemnified Claim will be as agreed by the Responsible
Entity, ROP and the Indemnified Parties (and failing agreement as
determined by a court of competent jurisdiction) having regard to the
participation in, instigation of, or other involvement of the
Responsible Entity and ROP on the one hand (in relation to the
proportional contribution of the Responsible Entity and
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48.
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ROP) and the Indemnified Parties on the other hand (in relation to the
proportional contribution of the Indemnified Parties) in the act
complained of. Without limiting the generality of this schedule 3,
regard must be had to the Indemnified Parties' and the Responsible
Entity's and ROP's relative intent, knowledge, access to information and
opportunity to correct any untrue statement or omission.
15. No excess contribution
The Responsible Entity and ROP agree with the Indemnified Parties that
in no event will the Indemnified Parties be required to contribute under
paragraph 14 of this schedule 3 to any Indemnified Claim an aggregate
amount that exceeds the commission and fees paid to the Underwriters
under this agreement.
16. Limit on contribution
The Underwriters acknowledge that the Responsible Entity or ROP may
enter into arrangements which limit the extent to which the Responsible
Entity or ROP may claim against any third party or third parties in
connection with the Offer (a Relevant Limitation). Where any damage or
loss is suffered by the Responsible Entity or ROP for which the
Underwriters would otherwise be jointly and severally liable to the
Responsible Entity or ROP with any third party or third parties, the
extent to which such loss will be recoverable by the Responsible Entity
or ROP from the Underwriters will:
(a) be limited so as to be in proportion to the Underwriter's
contribution to the overall fault for such damage or loss, as
agreed between the parties or, in the absence of agreement, as
finally determined by a court of competent jurisdiction; and
(b) be no more than it would have been had any Relevant Limitation not
been agreed to by the Responsible Entity or ROP.
The degree to which the Underwriters may rely on the work of any such
third party will be unaffected by any Relevant Limitation.
17. Right to reimbursement by the Responsible Entity
If an Indemnified Party pays an amount in relation to an Indemnified
Claim where it is entitled to contribution from the Responsible Entity
or ROP under this schedule 3, the Responsible Entity and ROP agree to
promptly reimburse the Indemnified Party for that amount.
18. Right to reimbursement by the Indemnified Party
If the Responsible Entity or ROP pays an amount in relation to an
Indemnified Claim where it is entitled to contribution from an
Indemnified Party under this schedule 3, the Underwriters agree to
promptly reimburse the Responsible Entity and ROP for that amount.
19. Release of the Indemnified Parties
Each of the Responsible Entity and ROP agree that no Claim may be made
by it against the Indemnified Parties, and each of the Responsible
Entity and ROP unconditionally and
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49.
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irrevocably releases and discharges each Indemnified Party from any
Claim that may be made by it to recover from that Indemnified Party any
Losses suffered or incurred by the Responsible Entity or ROP arising
directly or indirectly as a result of the participation of that
Indemnified Party in the preparation of the Offer Document or in
relation to the making of the Offer, except in relation to matters where
those Losses are finally judicially determined to result primarily from
any the negligence, fraud, lack of good faith or wilful misconduct of
that Indemnified Party (except to the extent that such negligence,
fraud, lack of good faith or wilful misconduct of that Indemnified Party
is induced by, or arises as a result of, an act, omission or advice by
or on behalf of the Responsible Entity or ROP).
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50.
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SCHEDULE 4
TIMETABLE
Lodgement Date - date for lodgement of Offer
Document with ASIC 15 August 2005
Opening Date 29 August 2005
Closing Date 16 September 2005
Shortfall Notification Date 19 September 2005
Settlement Date 20 September 2005
Allotment Date 21 September 2005
Call Date (date by which Call is to be made) 21 August 2006
Final Instalment Payment Date 1 October 2006
Last day for Unpaid Instalment Notice 11 October 2006
Last day for Instalment Shortfall Sale Date 10 November 2006
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51.
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EXECUTED as an agreement.
SIGNED by RECKSON AUSTRALIA
MANAGEMENT LIMITED as
responsible entity of the Reckson New
York Property Trust:
----------------------------------------------------- -----------------------------------------------------
Signature of director Signature of Executive Vice President
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxx
----------------------------------------------------- -----------------------------------------------------
Name Xxxxx Xxxxxxx Name Xxxxxxx Xxxxxx
SIGNED on behalf of RECKSON
OPERATING PARTNERSHIP, L.P.
by RECKSON ASSOCIATES REALTY
CORP., its general partner
By:
/s/ Xxxxxxx Xxxxxx
----------------------------------------------------- -----------------------------------------------------
Xxxxxxx Xxxxxx
----------------------------------------------------- -----------------------------------------------------
SIGNED for UBS AG, AUSTRALIA
BRANCH by its duly authorised officers:
----------------------------------------------------- -----------------------------------------------------
Signature of authorised officer Signature of authorised officer
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxxxxx
----------------------------------------------------- -----------------------------------------------------
Name Xxxxxxx Xxxxxx Name Xxxxxx Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
52.
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SIGNED for CITIGROUP GLOBAL
MARKETS AUSTRALIA PTY
LIMITED under power of attorney in the
presence of:
Signature of attorney
/s/ Xxxxxxx Xxxxxxxxxxx
-----------------------------------------------------
Signature of witness Name Xxxxxxx Xxxxxxxxxxx
/s/ R. B. B. XxXxxxxxx
----------------------------------------------------- -----------------------------------------------------
Name R. B. B. XxXxxxxxx Date of power of attorney
53.
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