EXHIBIT 10.8
STOCK PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement") is dated as of December 8, 1998 and
is by and between TOWER REALTY TRUST, INC., a Maryland corporation
("Tower"), and METROPOLITAN PARTNERS LLC, a Delaware limited liability
company ("Buyer").
RECITALS
A. In connection with the Merger (as defined herein), Tower wishes
to sell to Buyer and Buyer wishes to purchase from Tower 2,169,197 shares
of Series A Preferred Stock (as defined herein) at the price of $18.44 per
share, on the terms and subject to the conditions set forth herein.
B. In consideration of the mutual promises set forth herein, the
parties hereby agree as follows:
ARTICLE DEFINITIONS
When used herein, the following terms shall have the following
meanings:
1.1 "Buyer Disclosure Schedule" shall have the meaning assigned
to such term in Section 4.2(c) hereof.
1.2 "Closing" shall have the meaning assigned to such term in
Section 2.2 hereof.
1.3 "Common Stock" shall mean the common stock of Tower, par
value $.01 per share.
1.4 "Conversion Shares" shall mean (i) the shares of Common
Stock issuable upon the conversion of the Shares and (ii) any Common Stock
issued or issuable with respect to the securities referred to in clause (i)
above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
1.5 "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
1.6 "Governmental Entity" shall mean any government or any
agency, court, tribunal, commission, board, bureau, department, political
subdivision or other instrumentality of any government (including any
regulatory or administrative agency), whether federal, state, multinational
(including, but not limited to, the European Community), provincial,
municipal, domestic or foreign.
1.7 "Liens" shall mean with respect to any asset, any mortgage,
deed of trust, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset.
1.8 "Material Adverse Effect" shall mean a material adverse
effect on the condition (financial or otherwise), business, assets or
results of operations of Tower and its Subsidiaries, or Buyer and its
Subsidiaries, as the case may be, in each case taken as a whole, that is
not a result of a decline or deterioration in the economy in general or the
real estate markets in which such entities operate.
1.9 "Merger" shall mean the merger of Tower with and into Buyer
(with Buyer being the surviving entity) pursuant to the Merger Agreement.
1.10 "Merger Agreement" shall mean the merger agreement of even
date herewith between Tower, Buyer and Reckson.
1.11 "MGCL" shall mean the Maryland General Corporation Law.
1.12 "New York Courts" shall have the meaning assigned to such
term in Section 6.7 hereof.
1.13 "Person" shall mean any natural person, firm, individual,
corporation, limited liability company, partnership, association, joint
venture, company, business trust, trust or any other entity or
organization, whether incorporated or unincorporated, including a
government or political subdivision or any agency or instrumentality
thereof.
1.14 "Reckson" shall mean Reckson Associates Realty Corp., a
Maryland corporation.
1.15 "Registration Rights Agreement" shall mean the Registration
Rights Agreement of even date herewith between Tower and Buyer.
1.16 "Releases" shall mean the releases executed on the date
hereof by Tower, Reckson and Crescent Real Estate Equities Company, a Texas
real estate investment trust.
1.17 "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
1.18 "Series A Preferred Stock" shall mean the Series A Preferred
Stock of Tower having the preferences, limitations and relative rights as
set forth in the Supplementary Articles of Incorporation.
1.19 "Shares" shall mean the shares of Series A Preferred Stock
to be issued by Tower to Buyer pursuant to this Agreement.
1.20 "Subsidiary" shall mean, with respect to any Person, any
corporation or other entity of which such Person owns, directly or
indirectly, more than 50% of the outstanding voting stock or other equity
interests.
1.21 "Supplementary Articles of Incorporation" shall mean the
Supplementary Articles of Incorporation of Tower in the form attached
hereto as Exhibit A, as amended from time to time.
1.22 "Tower Disclosure Schedule" shall have the meaning assigned
to such term in Section 4.1(b)(i) hereof.
1.23 "Tower Permitted Liens" shall mean (i) mechanics',
carriers', workers', repairers', materialmen's, warehousemen's and other
similar Liens arising or incurred in the ordinary course of business for
sums not yet due and payable and such Liens as are being contested by Tower
in good faith, (ii) Liens arising or resulting from any action taken by
Buyer or any of its affiliates, (iii) matters that would be disclosed by an
accurate survey or inspection of the Company Real Property (as such term is
defined in the Merger Agreement), (iv) Liens for current taxes not yet due
or payable, (v) any covenants, conditions, restrictions, reservations,
rights, Liens, easements, encumbrances, encroachments and other matters
affecting title which are shown as exceptions on Tower's title insurance
polices and/or title commitments or reports which have been made available
to Buyer or any of its affiliates, (vi) any other covenants, conditions,
restrictions, reservations, rights, non-monetary Liens, easements,
encumbrances, encroachments and other matters affecting title which do not
individually or in the aggregate materially adversely affect the value or
use of any of the Company Real Property as it is presently used,
(vii) Company Space Leases (as defined in the Merger Agreement) and
(viii) matters set forth in Schedule 3.3(c) of the Company Disclosure
Schedule (as defined in the Merger Agreement) and/or permitted pursuant to
Sections 5.1(n), 5.1(r), 5.1(s) or 5.4 of the Merger Agreement.
1.24 "Transaction Agreements" shall mean this Agreement, the
Merger Agreement, the Registration Rights Agreement and the Releases.
ARTICLE STOCK PURCHASE
2.1 PURCHASE AND SALE. Subject to the terms and conditions
hereof and on the basis of the representations and warranties hereinafter
set forth, at the Closing, Tower shall issue and sell to Buyer, and Buyer
shall purchase from Tower, 2,169,197 shares of Series A Preferred Stock at
the price of $18.44 per share, equal to an aggregate purchase price of
$40,000,000.
2.2 CLOSING.
(a) The closing of the purchase and sale transactions
contemplated hereby (the "Closing") shall take place at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, simultaneously with the execution and delivery of this
Agreement or as soon thereafter as all of the conditions set forth in
Section 2.3 hereof are waived by Buyer or completed.
(b) At the Closing, Tower shall deliver to Buyer a duly executed
stock certificate in the name of Buyer evidencing the Shares to be
purchased and Buyer shall deliver the purchase price therefor, which shall
be paid by wire transfer to an account designated by Tower prior to the
Closing.
(c) At the Closing, Buyer shall deliver to Tower the
Representation Letter (as defined in Section 4.1(f) hereof).
2.3 ACTIONS AT THE CLOSING. At the Closing, the following
actions shall occur:
(a) Each of the other Transaction Agreements shall be duly
executed and delivered by the parties thereto and shall be in full force
and effect.
(b) The Supplementary Articles of Incorporation shall be duly
and validly filed with the Secretary of State of the Department of
Assessments and Taxation of the State of Maryland and shall be in full
force and effect.
ARTICLE COVENANTS
3.1 USE OF PROCEEDS. Tower shall use the proceeds of the sale
of the Shares pursuant to this Agreement to make a principal payment of
$20,000,000 in respect of the Loan Agreement dated as of December 31, 1997
between Credit Suisse First Boston Mortgage Capital LLC and 000 0xx Xxxxxx,
L.P. promptly after the Closing; Tower shall use the balance of the
proceeds only for general corporate purposes and in compliance with Section
5.1 of the Merger Agreement until the earlier of the consummation of the
Merger and the termination of the Merger Agreement.
3.2 PUBLICITY. None of Tower, Buyer nor any of their respective
affiliates shall issue or cause the publication of any press release or
other public announcement with respect to the Merger, this Agreement or the
other transactions contemplated hereby without prior consultation with the
other party, except as may be required by law or by any listing agreement
with, or the policies of, a national securities exchange.
3.3 TRANSFER.
(a) Prior to Termination of Merger Agreement. Buyer agrees that
prior to the termination of the Merger Agreement for any reason, neither
Buyer nor any of its affiliates may transfer the Shares to any Person that
is not Buyer or any affiliate of Reckson who agrees to be bound by the
terms and provisions of this Agreement.
(b) After Termination of Merger Agreement. Buyer agrees that
during the period commencing upon the termination of the Merger Agreement
and ending on the fifth anniversary of the date hereof (the "restricted
period") none of Buyer or any of its affiliates shall transfer the Shares
or the Conversion Shares to any Person that is not Buyer or wholly owned
subsidiary of Buyer. Notwithstanding the foregoing, during the restricted
period Buyer and its wholly owned subsidiaries shall have the right to
transfer (i) any or all Shares and Conversion Shares in privately
negotiated transactions or, in registered offerings pursuant to the
Registration Rights Agreement, to any Person specified in Rule
13d-1(b)(1)(ii) promulgated under the Exchange Act (as such rule was in
effect immediately prior to its February 17, 1998 amendment) who would be
eligible based on such Person's status and passive intent with respect to
the ownership, holding and voting of such Shares or Conversion Shares to
report such Person's ownership of such Shares or Conversion Shares
(assuming such Person owned a sufficient number of such Shares or
Conversion Shares to require such filing) on Schedule 13G, (ii) Shares and
Conversion Shares that (treating all such Shares as converted into
Conversion Shares) represent 5% or less of the issued and outstanding
Common Stock, in privately negotiated transactions or, in registered
offerings pursuant to the Registration Rights Agreement, to any Person who
would not, after such transfer, beneficially own in excess of 9.9% of the
issued and outstanding Common Stock (treating all Shares as converted into
Conversion Shares), (iii) any or all Shares or Conversion Shares in
transactions effected on the New York Stock Exchange (the "NYSE") and
(iv) any or all Shares or Conversion Shares in Rule 144 transactions
subject to the volume limitations of Rule 144(e).
3.4 PROXY/ACQUISITION RESTRICTIONS.
(a) During the restricted period, neither Buyer nor any of its
affiliates (as such term is defined under the Exchange Act) will in any
manner, directly or indirectly, (i) effect or seek, offer or propose
(whether publicly or otherwise) to effect, or cause or participate in or in
any way assist any other Person to effect or seek, offer or propose
(whether publicly or otherwise) to effect or participate in, (A) any tender
or exchange offer, merger or other business combination involving the
Company or any of its Subsidiaries; (B) any recapitalization,
restructuring, liquidation, dissolution or other extraordinary transaction
with respect to the Company or any of its Subsidiaries; or (C) any
"solicitation" of "proxies" or become a "participant" in an "election
contest" (as such terms are used in the proxy rules of the Securities and
Exchange Commission) or consents to vote any voting securities of the
Company; (ii) form, join or in any way participate in a "group" (as defined
under the Exchange Act) or call or seek to call a shareholders' meeting or
propose or solicit shareholders for the approval of any shareholder
proposal so long as such meeting or proposal relates to election of
directors, control of the Company or an extraordinary transaction; or
(iii) otherwise act, alone or in concert with others, to seek to control or
influence the management, Board of Directors or policies of the Company.
(b) Until the earlier to occur of (i) the fifth anniversary of
the date hereof and (ii) the date the aggregate ownership of Buyer and its
affiliates of Conversion Shares (treating all Shares as the number of
Conversion Shares into which they may be converted) is less than 2% of the
outstanding Common Stock (treating all Shares as the number of Conversion
Shares into which they may be converted), neither the Buyer nor any of its
affiliates will in any manner, directly or indirectly effect or seek, offer
or propose to effect, or cause or participate in any acquisition of any
securities (or beneficial ownership interest) of the Company or any of its
Subsidiaries.
(c) Notwithstanding anything to the contrary in Sections 3.3 and
3.4, nothing herein shall prevent or restrict Buyer or its affiliates from
voting any capital stock of the Company, or tendering or surrendering
shares of capital stock into or in connection with a tender or exchange
offer, or recapitalization, restructuring, liquidation or dissolution so
long as such action would not otherwise violate Section 3.4(a).
3.5 LISTING APPLICATION. Tower agrees to promptly, and in no
event later than five business days from the date hereof, submit a listing
application to the NYSE with respect to the Shares and the Conversion
Shares and Buyer shall be entitled to review and comment on such listing
application and the submission of any other materials to the NYSE in
connection with the listing of the Shares and the Conversion Shares. Tower
shall use best efforts to cause the Shares and the Conversion Shares to be
approved for listing on the NYSE and shall provide to Buyer evidence of
such listing when approved and shall maintain the listing of the Common
Stock on the NYSE.
ARTICLE REPRESENTATIONS
4.1 REPRESENTATIONS OF TOWER. Tower represents and warrants to
Buyer on the date hereof and upon the Closing as follows:
(a) Authorization. Tower has the requisite corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution and delivery of this Agreement and the
performance of its obligations hereunder have been duly and validly
authorized by the Board of Directors of Tower and no other corporate
proceedings on the part of Tower are necessary to authorize the execution,
delivery and performance of this Agreement. This Agreement has been duly
executed and delivered by Tower and constitutes, assuming due
authorization, execution and delivery of this Agreement by Buyer, a valid
and binding obligation of Tower, enforceable against Tower in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity.
(b) No Violations; Consents and Approvals.
(i) Except as set forth in Schedule 4.1(b)(i) of the
disclosure schedule of Tower attached hereto (the "Tower
Disclosure Schedule"), neither the execution and delivery of this
Agreement nor the performance by Tower of its obligations
hereunder will (A) conflict with or result in any breach of any
provision of the Amended and Restated Articles of Incorporation
or the by-laws of Tower; (B) result in a breach or violation of,
a default under, or the triggering of any payment or other
material obligations pursuant to, or accelerate vesting under,
any of Tower's stock option or other benefit plans, or any grant
or award made under any of the foregoing; (C) result in a
violation or breach of, or constitute (with or without due notice
or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration or obligation to
repurchase, repay, redeem or acquire or any similar right or
obligation) or result in the creation of any Lien upon any
properties of Tower or any of its Subsidiaries (other than Tower
Permitted Liens) under any of the terms, conditions or provisions
of, any note, mortgage, indenture, letter of credit, other
evidence of indebtedness, franchise, permit, guarantee, license,
lease or agreement or similar instrument or obligation to which
Tower or any of its Subsidiaries is a party or by which any of
them or any of their assets may be bound or (D) assuming that the
filings, registrations, notifications, authorizations, consents
and approvals referred to in subsection (ii) below have been
obtained or made, as the case may be, violate any order,
injunction, decree, statute, rule or regulation of any
Governmental Entity to which Tower or any of its Subsidiaries is
subject, excluding from the foregoing clauses (B), (C) and (D)
such requirements, defaults, breaches, rights, violations or
creations of such liens, security interests, charges or
encumbrances (x) that would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and would not
reasonably be expected to have a material adverse effect on the
ability of Tower to perform its obligations hereunder or (y) that
become applicable as a result of the business or activities in
which Buyer or any of its affiliates is or proposes to be engaged
or any acts or omissions by, or facts pertaining to, Buyer or any
of its affiliates.
(ii) Except as set forth in Schedule 4.1(b)(ii) of the Tower
Disclosure Schedule, no filing or registration with, notification
to, or authorization, consent or approval of, any Governmental
Entity is required in connection with the execution and delivery
of this Agreement or the other Transaction Agreements by Tower or
the performance by Tower of its obligations hereunder or under
the Releases, except (A) the filing of the Supplementary Articles
of Incorporation in accordance with the MGCL and (B) such
consents, approvals, orders, authorizations, notifications,
registrations, declarations and filings (x) the failure of which
to be obtained or made would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and would not have a
material adverse effect on the ability of Tower to perform its
obligations hereunder or thereunder or (y) that became applicable
as a result of the business or activities in which Buyer or any
of its affiliates is or proposes to be engaged or any acts or
omissions by, or facts pertaining to, Buyer or any of its
affiliates.
(c) The representations and warranties set forth in Article III
of the Merger Agreement (except for Sections 3.2, 3.3, 3.20, 3.21 and
3.25), the related disclosure schedule of Tower attached thereto and all
definitions used in such Article III are incorporated by reference as if
set forth in full in this Agreement; provided that the term "Agreement"
when used in such provisions shall be deemed to refer to the Merger
Agreement.
(d) Authorization and Issuance of Capital Stock. The
authorization, issuance, sale and delivery of the Shares pursuant to this
Agreement and the authorization, reservation, issuance, sale and delivery
of the Conversion Shares have been duly authorized by all requisite
corporate action on the part of Tower, and when issued, sold and delivered
in accordance with this Agreement, the Shares and the Conversion Shares
will be validly issued and outstanding, fully paid and nonassessable with
no personal liability attaching to the ownership thereof, will have been
issued in compliance with the Securities Act and applicable state
securities and "blue sky" laws, and will be free of any Liens and not
subject to preemptive or similar rights of the stockholders of Tower or
others.
(e) Reservation of Shares. Tower has reserved a sufficient
number of shares of Series A Preferred Stock for issuance to Buyer pursuant
to this Agreement and a sufficient number of shares of Common Stock for
issuance upon the conversion of the Series A Preferred Stock.
(f) State Takeover Statutes/REIT Ownership Restrictions. Tower
has taken all action necessary to (i) exempt the transactions contemplated
by this Agreement (including the acquisition of the Conversion Shares) from
the operation or triggering of any applicable "fair price," "moratorium,"
"control share acquisition" or any other applicable anti-takeover statute
enacted under the state or federal laws of the United States or similar
statute or regulation and (ii) provide that none of the Shares or
Conversion Shares owned by Buyer or its affiliates shall be, while owned by
Buyer and its affiliates, subject to any restrictions on the transfer or
ownership of capital stock of Tower set forth in its charter (including,
without limitation, article VII thereof, except to the extent that Buyer
has represented, as to itself and its affiliates, otherwise in that certain
representation letter delivered by Reckson to Tower dated the date hereof
(the "Representation Letter")).
4.2 REPRESENTATIONS OF BUYER. Buyer represents and warrants to
Tower that:
(a) Authority and Power. Buyer is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all power and authority to carry on its business
as now conducted. Buyer has heretofore delivered or made available to Tower
true and complete copies of its governing documents or other organizational
documents of like import, as currently in effect.
(b) Authorization. Buyer has the requisite power and authority
to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement and the performance
of its obligations hereunder have been duly and validly authorized by all
requisite action by Buyer and no other proceedings on the part of Buyer are
necessary to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly executed and delivered by Buyer,
and constitutes, assuming due authorization, execution and delivery of this
Agreement by Tower, a valid and binding obligation of Buyer enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
and general principles of equity.
(c) No Violation; Consents and Approvals.
(i) Except as set forth in Schedule 4.2(c)(i) of the
disclosure schedule of Buyer attached hereto (the "Buyer
Disclosure Schedule"), neither the execution and delivery of this
Agreement nor the performance by Buyer of its obligations
hereunder will (A) conflict with or result in any breach of any
provision of the certificate of formation or operating agreement
(or other governing or organizational documents) of Buyer or (B)
result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give
rise to any right of termination, cancellation or acceleration or
obligation to repurchase, repay, redeem or acquire or any similar
right or obligation) under any of the terms, conditions or
provisions of, any note, mortgage, letter of credit, other
evidence of indebtedness, guarantee, license, lease or agreement
or similar instrument or obligation to which Buyer or any of its
Subsidiaries is a party or by which any of them or any of their
assets may be bound or (C) assuming that the filings,
registrations, notifications, authorizations, consents and
approvals referred to in subsection (ii) below have been obtained
or made, as the case may be, violate any order, injunction,
decree, statute, rule or regulation of any Governmental Entity to
which Buyer or any of its Subsidiaries is subject, excluding from
the foregoing clauses (B) and (C) such requirements, defaults,
breaches, rights or violations (x) that would not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect and would not reasonably be expected to have a material
adverse effect on the ability of Buyer to perform its obligations
hereunder or (y) that became applicable as a result of the
business or activities in which Tower or any of its affiliates is
or proposes to be engaged or any acts or omissions by, or facts
pertaining, to Tower or any of its affiliates.
(ii) Except as set forth in Schedule 4.2(c)(ii) of the Buyer
Disclosure Schedule, no filing or registration with, notification
to, or authorization, consent or approval of, any Governmental
Entity is required in connection with the execution and delivery
of this Agreement or the other Transaction Agreements by Buyer or
the performance by Buyer of its obligations hereunder, except
such consents, approvals, orders, authorizations, notifications,
registrations, declarations and filings (x) the failure of which
to be obtained or made would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and would not have a
material adverse effect on the ability of Buyer to perform its
obligations hereunder or (y) that became applicable as a result
of the business or activities in which Tower or any of its
affiliates is or proposes to be engaged or any acts or omissions
by, or facts pertaining to, Tower or any of its affiliates.
(d) Investment. Buyer is acquiring the Shares for its own
account, for investment and not with a view to the distribution thereof
within the meaning of the Securities Act.
(e) Shares Not Registered. Buyer understands that (i) the
Shares have not been, and the Conversion Shares, when and if issued will
not be, registered under the Securities Act by reason of their issuance by
Tower in a transaction exempt from the registration requirements of the
Securities Act and (ii) the Shares and the Conversion Shares may not be
sold unless such disposition is registered under the Securities Act or is
exempt from registration thereunder.
(f) Rule 144. Buyer further understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to
Buyer) promulgated under the Securities Act depends on the satisfaction of
various conditions and that, if applicable, Rule 144 may afford the basis
for sales only in limited amounts.
(g) Accredited Investor. Buyer is an "Accredited Investor" (as
defined in Rule 501(a) under the Securities Act).
(h) Legend. Buyer agrees to the placement on the certificates
representing Shares or Conversion Shares of the following legend:
"THE SECURITY REPRESENTED HEREBY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
REQUIREMENTS OF OR EXEMPTIONS UNDER SUCH ACT AND LAWS
AND IN COMPLIANCE WITH TRANSFER RESTRICTIONS CONTAINED
IN THE MERGER AGREEMENT, DATED AS OF DECEMBER 8 1998, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE COMPANY."
Buyer will be entitled to exchange legended certificates for new
certificates representing Shares or Conversion Shares, as the case may be,
which certificates shall not contain the legend set forth above if (a) such
Shares or Conversion Shares are sold or otherwise disposed of pursuant to a
registration statement that is declared effective by the SEC or pursuant to
Rule 144 under the Securities Act or (b) Buyer delivers a written opinion
of counsel reasonably acceptable to the Company to the effect that such
legend is not required by the applicable provisions of the Securities Act.
ARTICLE MERGER TERMINATION ARRANGEMENTS
5.1 PAYMENT BY BUYER. In the event that any court of competent
jurisdiction issues a final, non-appealable judgment determining that Buyer
and Reckson (i) are, under the terms of the Merger Agreement, obligated to
consummate the Merger but have failed to do so, or (ii) failed to use their
reasonable best efforts to take, or cause to be taken, all actions and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate the Transactions (as defined
in the Merger Agreement), which actions or things are necessary for the
satisfaction of the conditions set forth in Sections 6.1(d) or 6.1(e) of
the Merger Agreement, or which actions or things are necessary for the
Share Issuance Approval (excluding from the foregoing any actions which are
not in violation of the Merger Agreement), then Buyer shall immediately
return to Tower 75% of the Shares purchased (equivalent to $30,000,000 of
purchase price) and retain the balance. The payment made pursuant to this
Section 5.1 shall reduce by $30,000,000 the amount of damages otherwise
payable by Buyer to Tower under any such judgment.
5.2 PAYMENT BY TOWER. In the event that any court of competent
jurisdiction issues a final, non-appealable judgment determining that Tower
(i) is, under the terms of the Merger Agreement, obligated to consummate
the Merger but has failed to do so, or (ii) failed to use its reasonable
best efforts to take, or cause to be taken, all actions and to do, or cause
to be done, all things necessary, proper or advisable under applicable laws
and regulations to consummate the Transactions, which actions or things are
necessary for the satisfaction of the conditions set forth in Sections
6.1(a) or 6.1(d) of the Merger Agreement (excluding from the foregoing any
actions which are not in violation of the Merger Agreement), then Tower
shall immediately pay to Buyer $30,000,000 in cash. The payment made
pursuant to this Section 5.2 shall reduce by $30,000,000 the amount of
damages otherwise payable by Tower to Buyer under any such judgment.
ARTICLE MISCELLANEOUS
6.1 NOTICES. Except as otherwise provided in this Agreement,
all notices, requests, consents and other communications hereunder to any
party shall be deemed to be sufficient if contained in a written instrument
delivered in person or by telecopy, nationally recognized overnight courier
or first class registered or certified mail, return receipt requested,
postage prepaid, addressed to such party at the address set forth below or
such other address as may hereafter be designated in writing by such party
to the other parties:
(i) if to Tower, to:
Tower Realty Trust, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
(ii) if to Buyer, to:
METROPOLITAN PARTNERS LLC
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, General Counsel
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx, P.C.
All such notices, requests, consents and other communications
shall be deemed to have been given when received.
6.2 EXPENSES. Each of Tower and Buyer shall pay all costs and
expenses incurred by it or on its behalf in connection with this Agreement
and the consummation of the transactions contemplated hereby.
6.3 TRANSFER TAXES. Tower agrees that it will pay, and will
hold Buyer harmless from any and all liability with respect to any stock
transfer, documentary, stamp or other similar taxes which may be determined
to be payable in connection with the execution and delivery and performance
of this Agreement or any modification, amendment or alteration of the terms
or provisions of this Agreement, and that it will similarly pay and hold
Buyer harmless from all such taxes in respect of the issuance of the Shares
and the Conversion Shares to Buyer.
6.4 SURVIVAL. All representations and warranties made by Tower
herein and in any certificates delivered pursuant hereto, whether or not in
connection with the Closing, shall not survive the Closing and the delivery
of this Agreement and the delivery of the Shares.
6.5 NO THIRD PARTY BENEFICIARIES. This Agreement (including the
documents and instruments referred to herein) is not intended to confer
upon any Person other than the parties hereto any rights, duties,
obligations or remedies hereunder.
6.6 EXCHANGES; LOST, STOLEN OR MUTILATED CERTIFICATES. Upon
surrender by Buyer to Tower of any certificate representing Shares or
Conversion Shares purchased or acquired hereunder, Tower at its expense
will, within five business days, issue in exchange therefor, and deliver to
Buyer, a new certificate or certificates representing such Shares or
Conversion Shares, in such denominations as may be requested by Buyer.
Upon receipt of evidence reasonably satisfactory to Tower of the loss,
theft, destruction or mutilation of any certificate representing any Shares
or Conversion Shares purchased or acquired by Buyer hereunder, and in case
of any such loss, theft or destruction, upon delivery of an indemnity
agreement reasonably satisfactory to Tower, or in case of any such
mutilation, upon surrender and cancellation of such certificate, Tower at
its expense will, within five business days, issue and deliver to Buyer a
new certificate for such Shares or Conversion Shares of like tenor, in lieu
of such lost, stolen or mutilated certificate.
6.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (regardless
of the laws that might otherwise govern under applicable principles of
conflicts of laws thereof) as to all matters, including, but not limited
to, matters of validity, construction, effect, performance and remedies.
Each of Tower and Buyer hereby irrevocably and unconditionally consents to
submit to the exclusive jurisdiction of the courts of the State of New York
and of the United States of America located in the State of New York (the
"New York Courts") for any litigation arising out of or relating to this
Agreement or the Transactions (and agrees not to commence litigation
relating thereto except in such courts), waives any objection to the laying
of venue of any such litigation in the New York Courts and agrees not to
plead or claim in any New York Court that such litigation brought therein
has been brought in any inconvenient forum.
6.8 CAPTIONS. The descriptive headings of the various sections
or parts of this Agreement are for convenience only and shall not affect
the meaning or construction of any of the provisions hereof.
6.9 NO FINDERS OR BROKERS. Except for Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, whose fee will be paid by Tower, and except
for Xxxxxxx Xxxxx Barney, Inc., whose fee will be paid by Reckson, there is
no investment banker, broker, finder or other intermediary that has been
retained by, or is authorized to act on behalf of, either of the parties
hereto or their respective affiliates that would be entitled to any fee or
commission from either of the parties hereto or their respective affiliates
upon consummation of the transactions contemplated hereby.
6.10 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power
or remedy preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to
the parties hereto at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement,
and any consent to any departure by any party from the terms of any
provision of this Agreement, shall be effective (i) only if it is made or
given in writing and signed by all the parties hereto, and (ii) only in the
specific instance and for the specific purpose for which it is made or
given.
6.11 FURTHER ASSURANCES. At any time or from time to time after
the Closing, Buyer, on one hand, and Tower, on the other hand, agree to
cooperate with each other, and at the request of the other party, to
execute and deliver any further instruments or documents and to take all
such further action as the other party may reasonably request in order to
evidence or effectuate the consummation of the transactions contemplated
hereby and to otherwise carry out the intent of the parties hereunder.
6.12 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure
to the benefit of Tower and Buyer and their respective successors and
assigns. Except as otherwise expressly provided herein, this Agreement may
not be assigned by either party. Any purported assignment in violation of
this Agreement shall be null and void. Notwithstanding the foregoing,
Buyer may assign this Agreement to a Subsidiary, and upon any such
assignment, such assignee shall have and be able to exercise all the rights
of Buyer hereunder.
6.13 SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired, unless the provisions held invalid, illegal or unenforceable
shall substantially impair the benefits of the remaining provisions hereof.
6.14 REPRESENTATION LETTER. Tower's representations are
predicated on the accuracy and completeness of the Representation Letter.
6.15 ENTIRE AGREEMENT. This Agreement, the Representation Letter
and the other Transaction Agreements, together with the exhibits and
schedules hereto and thereto, are intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein or therein or in the Transaction Agreements.
This Agreement and the other Transaction Agreements, together with the
exhibits and schedules hereto and thereto, supersede all prior agreements
and understandings between the parties with respect to such subject matter.
6.16 VARIATIONS IN PRONOUNS. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as
the context may require.
6.17 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, each of the undersigned has executed, or has
caused to be executed, this Agreement as of the date first written above.
TOWER REALTY TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Finance and Administration
and Chief
Financial Off
METROPOLITAN PARTNERS LLC
By: Reckson Operating Partnership, L.P.,
a member
By: Reckson Associates Realty Corp., its
sole general partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
