Exhibit 10.2
OPTION AGREEMENT
This AGREEMENT (this "Agreement"), made this 21st day of September
2005, by and between RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("Owner Operating Partnership") having an address at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and the various direct and
indirect wholly owned or controlled subsidiaries of Owner Operating
Partnership set forth on Exhibit A annexed hereto (collectively, the
"Subsidiaries"; the Subsidiaries and Owner Operating Partnership,
collectively, "Owner"), RECKSON AUSTRALIA OPERATING COMPANY LLC, a Delaware
limited liability company, having an address at c/o Reckson Associates Realty
Corp., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company") and
RECKSON AUSTRALIA LPT CORPORATION, a Maryland corporation (the "REIT"), having
an address at c/o Reckson Associates Realty Corp., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, Owner Operating Partnership directly owns, or owns through
its Subsidiaries, fee simple interests or leasehold interests (as lessee) in
the properties set forth in Exhibit B annexed hereto (each an "Option
Property" and collectively, the "Option Properties"); and
WHEREAS, pursuant to (i) that certain Contribution Agreement (as
amended, modified and supplemented from time to time, the "Contribution
Agreement") of even date herewith between Owner, Company and REIT, and (ii)
that certain Sale Agreement (as amended, modified and supplemented from time
to time, the "Sale Agreement") dated as of August 11, 2005, between Owner,
Company and REIT, and subject to the terms and conditions thereof, the parties
agreed that Owner would agree to grant to Company an option to acquire the
Option Properties upon the terms and conditions set forth herein. (All
capitalized terms, unless otherwise defined herein shall have the meaning
given such terms in the Contribution Agreement and if not contained therein,
the Sale Agreement).
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, and other good and valuable consideration, the
parties hereby agree as follows:
Section 1. Grant of Option. (a) Subject to Section 12 hereof, Owner
hereby grants to Company the option (the "Option") to purchase any Option
Property (excluding personalty and artwork, if any) for the amount as set
forth in Section 4 below; provided, however, that as to (i) the ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Option Properties, the Option
shall be for the managing member's approximately 97% controlling interest in
RM Square, LLC, the owner of said three (3) properties, which is subject to an
carried interest to the minority partner after certain returns have been
achieved, (ii) the ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Option Property, the Option shall be
contingent upon Owner or one of its affiliates exercising its option to
purchase ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and is subject to Company assuming the tax
protection obligations of the Owner or such affiliate with respect to such
Option Property, (iii) the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Option Property, the Option
shall be subject to Company assuming the tax protection obligations of the
Owner or such affiliate with respect to such Option Property or (iv) the ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Option Property, the Option shall be effectuated
by either
the termination of that certain Sublease Agreement dated as of the
date hereof entered into by and between RA ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLC
and Owner Operating Partnership (the "Sublease") or the assignment of the
Sublease to the Company or its designee.
(b) Notwithstanding anything to the contrary herein, other properties
directly owned by Owner Operating Partnership, or owned through its
Subsidiaries, in fee simple or by leasehold (as lessee) may become an Option
Property pursuant to the Contribution Agreement and/or the Sale Agreement, and
current or future Option Properties may become properties contributed or sold
under the Contribution Agreement or Sale Agreement, as applicable, pursuant to
such Contribution Agreement or Sale Agreement.
(c) Notwithstanding anything to contrary herein, no Option shall be
effective as to any Option Property, if at the time of exercise of such
Option, the exercise of the Option or sale of such Option Property shall cause
Owner to be in violation of any of its covenants relating to its existing
secured or unsecured indebtedness including those covenants imposed by
nationally recognized rating agencies in connection with Owner's investment
grade rating. Any such Option Property shall remain an Option Property for a
future exercise of an Option during the Option Period (as defined
hereinbelow), provided such covenants are not then violated.
Section 2. Option Period. The Option may be exercised at any time between
January 1, 2006 and January 1, 2008 (the "Option Period"), provided that if
not exercised on or before January 1, 2008, all rights and privileges
hereunder shall expire; provided, however, that Company may only exercise one
(1) Option each calendar quarter, except the last two (2) calendar quarters of
the Option Period in which Company may exercise any number of Options. During
the Option Period, Owner agrees to own and operate each Option Property
consistent with its past practices in owning and operating such Option
Property and/or similar properties (including, without limitation, the ability
to incur debt on market terms and enter into leases, renewals, expansions
and/or amendments on market terms). During the term of this Agreement, Owner
shall have the right to make (i) capital improvements or capital repairs
required by law, (ii) capital improvements or capital repairs which may be
required in the event of an emergency to preserve the Option Property, or
(iii) capital improvements or capital repairs required in accordance with the
terms and provisions of a lease (collectively, "Required Work") without
Company's prior approval. In the event that Owner deems it necessary to
perform Required Work, Owner shall use commercially reasonable efforts to
notify Company of such Required Work as soon as practicable. In the event
Owner elects to perform any Required Work, then the cost of such Required Work
shall be apportioned between Owner and Company in accordance with Section 5
below. Additionally, in the event Owner elects to enter into any leases, any
(i) brokerage commissions, (ii) tenant improvement allowances, (iii) abated
rent and/or (iv) other tenant inducement costs of whatever nature shall be
apportioned between Owner and Company in accordance with the amount of lease
term occurring pre- and post-Option Closing.
Section 3. Exercise of Option. In order to exercise the Option, Company
must deliver a written notice (the "Option Notice") to Owner within the time
period set forth in Section 2 hereof, indicating that it has irrevocably
exercised the Option. The Option Notice shall be addressed in accordance with
Section 11 hereof and shall be signed by Company. Subject to the last sentence
of Section 4, upon giving the Option Notice, both parties shall, in good
faith, negotiate and execute a contract of sale on market terms consistent
with purchase and sale
- 2 -
agreements in the New York metropolitan tri-state area (such market terms to
be decided by expedited arbitration, as set forth in Section 14 herein, in the
event no agreement can be reached between the parties).
Section 4. Purchase Price. The purchase price for each Option Property
shall be the fair market value of the Option Property, as determined based
upon the greater of (i) the appraised value of the Option Property in question
or (ii) a written all cash bona fide third party offer to purchase said Option
Property dated within 120 days of the date of delivery of the Option Notice
that the owner of the Option Property would be willing to accept and close, if
any (the "Purchase Price"); provided, however, that the Purchase Price shall
not be less than the amount of the aggregate debt secured solely by the
specific Option Property subject to the Option. The appraisal referred to in
clause (i) of the foregoing sentence shall be paid for by Company and shall be
performed by an appraiser mutually acceptable to both Owner and Company.
Notwithstanding anything contained herein to the contrary, Owner shall have
the right to postpone for six (6) months the date of fair market valuation and
the date of Option Closing (defined below); provided that in the event Owner
postpones the date of fair market valuation and the date of the Option
Closing, Company shall have the right to rescind the Option Notice originally
delivered in connection therewith. In the event Owner exercises its right to
postpone the date of fair market valuation and the date of the Option Closing,
whether or not Company rescinds the Option Notice originally delivered in
connection therewith, Company shall have the right to exercise another Option
in such quarter.
Section 5. Option Closing. Subject to the last sentence of Section 4, the
acquisition of any Option Property for which the Option has been exercised
shall be consummated (the "Option Closing") within thirty (30) calendar days
after the exercise of the Option, unless otherwise agreed to by the parties,
and shall be closed on an "all cash" basis, subject to customary closing
adjustments and prorations and with marketable title subject only to those
matters which are customary or as may be necessary to own and operate the
Option Property. Owner shall be under no obligation to deliver marketable
title. Notwithstanding the foregoing, the Company shall pay any transfer taxes
due in connection with the exercise of an Option. At the Option Closing,
Company shall reimburse Owner for Required Work based upon the number of days
of the projected useful life of such Required Work that Owner owned the Option
Property after each of the Required Work were made, on the one hand, with
Company responsible for the remainder of the projected useful life of each of
such Required Work, on the other.
Section 6. Closing Documents. At the Option Closing, upon receipt of the
Purchase Price, Owner shall transfer such Option Property or Option Properties
(which may, at Owner's option, be accomplished through a transfer of the
interest in the applicable Option Property owner, with customary
representations and warranties), as applicable, to Company, together with such
other documents as counsel for Owner and Company shall reasonably require to
accomplish the purposes of the exercise of the Option.
Section 7. Debt Assumption. To the extent that any Option Property is
encumbered at the time of the exercise by Company of the Option by debt which
is not due upon sale, Owner shall have no obligation to pay off or deliver
such Option Property free of such liens and encumbrances; provided, however
that any monetary liens or encumbrances shall be a buyer's
- 3 -
credit against the Purchase Price of the Option Property. As a condition to
Owner's obligation to close, Owner shall be released from any such debt on or
prior to the Option Closing. In the event that the existing lender charges an
assumption fee and/or legal fees in connection with the sale, same shall be a
buyer's credit at the closing.
Section 8. Failure of Owner or the Company to Perform. (a) If, prior to
any Option Closing, Company shall materially default in the performance of any
of its obligations under this Agreement, and such default or breach shall
remain uncured for ten (10) days after Company receives written notice thereof
from Owner, then Owner, as its sole and exclusive remedy, may either (i)
commence an action for specific performance of such obligations (subject to
all of the terms of this Agreement); or (ii) terminate this Agreement and seek
liquidated damages hereunder from Company in an amount equal to five percent
(5%) of the applicable Purchase Price. If Owner elects to terminate this
Agreement pursuant to this Section 8(a), this Agreement shall be of no further
force and effect, except with respect to those provisions which expressly
survive the termination of this Agreement.
(b) If, prior to any Option Closing, Owner shall materially default in
the performance of any of its obligations under this Agreement, and such
default shall remain uncured for ten (10) days after Owner receives written
notice thereof from Company, then Company, as its sole and exclusive remedy,
may either (i) commence an action for specific performance of such obligations
(subject to all of the terms of this Agreement); or (ii) terminate this
Agreement. If Company elects to terminate this Agreement pursuant to this
Section 8(b), this Agreement shall be of no further force and effect, except
with respect to those provisions which expressly survive the termination of
this Agreement.
Section 9. Condemnation and Casualty. (a) If, prior to an Option Closing,
all or any portion of any Option Property or Option Properties are permanently
taken by eminent domain (or is the subject of a pending condemnation
proceeding that has not been reduced to judgment), Owner shall notify Company
of such fact. Owner shall have no obligation to provide an alternate Option
Property or Option Properties and Owner shall have no other liability or
obligation to Company with respect to such Option Property or Option
Properties. If Company elects to proceed with the Option Closing of any Option
Property or Option Properties subject to a partial permanent taking by eminent
domain (other than the portion so taken), then upon the exercise of its
Option, Company shall accept title to such Option Property or Option
Properties in their existing condition, and pursuant to Section 4, at the
appraised fair market value following such partial permanent taking by eminent
domain and Owner shall not be required to assign or turn over to the Company
any amounts awarded or to be awarded as a result of the taking of such Option
Property or Option Properties. In the event that all or any portion of any
Option Property or Option Properties are temporarily taken by eminent domain
(or is the subject of a pending condemnation proceeding that has not been
reduced to judgment), the Option Period shall be extended with respect to such
Option Property or Option Properties until such time that the temporary
condemnation ceases to affect such Option Property or Option Properties.
(b) If, prior to the Option Closing, all or any portion of any of the
Option Properties are damaged or destroyed by fire or other casualty, Owner
shall not have any obligation to provide an alternate Option Property or
Option Properties or to repair or rebuild any such Option Property or Option
Properties. However, if all or any portion of any Option Property or Option
- 4 -
Properties are damaged or destroyed by fire or other casualty, and Owner
intends to and does repair and rebuild such Option Property or Option
Properties, the Option Period shall be extended until such time that the
Option Property or Option Properties is repaired and rebuilt; provided,
however, that any costs for such repair and rebuilding work not covered by
insurance (including deductibles funded by Owner or its affiliates) are paid
to Owner at the Option Closing (if the Option is exercised) as additional
consideration.
Section 10. Right of First Refusal to Purchase. During the Option Period,
in the event Owner receives a written all cash bona fide offer from a third
party for the purchase of any Option Property and the Owner is willing to
accept and close, Company shall have a right of first refusal to purchase at
the same purchase price and other terms contained in such offer, such closing
to occur within thirty (30) days. In the event that Company elects to not
exercise such right of first refusal to purchase such Option Property, Owner
may sell the Option Property to such third party or to any other person or
party on terms no less beneficial to Company than those contained in the
offer, provided the sale closes within 120 days from the date on which Company
elects not to exercise such right.
Section 11. Notices. All notices, demands, consents, approvals, requests
or other communications that any of the parties to this Agreement may desire
or be required to give hereunder (collectively "Notices") shall be in writing
and shall be given by personal delivery, or a nationally recognized overnight
courier service, fees prepaid, addressed as follows:
If to Owner Operating Partnership, to:
c/o Reckson Associates Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
- 5 -
If to Company, to:
c/o Reckson Associates Realty Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Any party may designate another addressee (and/or change its address) for
Notices hereunder by a Notice given pursuant to this section. A Notice sent in
compliance with the requirements of this Section shall be deemed given on the
date of its receipt.
Section 12. Termination. This Agreement and Company's rights hereunder
shall be deemed automatically terminated prior to its stated expiry (except
with respect to those provisions which expressly survive the termination of
this Agreement), without payment of premium or penalty, whether or not the
Option has been exercised, at any time prior to the closing of the acquisition
of any of the Option Properties if (a) Company sends the Offer Notice, which
is accepted by Owner, and fails to close as and where obligated on the terms
set forth in the Offer Notice, (b) Company is in default, beyond any
applicable notice and cure period, of any of its respective obligations under
this Agreement, the Contribution Agreement or the Sale Agreement, (c) the
Contribution Agreement and/or the Sale Agreement are not executed by all
parties thereto, and/or (d) Owner Operating Partnership or any of its
affiliates is no longer the "responsible entity" of Reckson New York Property
Trust after first being appointed as the "responsible entity" of Reckson New
York Property Trust. Once an Option Property has been sold in compliance with
the terms of Section 10 herein, Company shall thereafter have no rights with
respect thereof.
Section 13. Broker. Owner and Company mutually represent and warrant to
each other that neither Owner nor Company knows of, or has dealt with, any
broker, finder,
- 6 -
salesperson or similar agent who has claimed or may have the right to claim a
commission in connection with this transaction. Owner and Company shall
indemnify and defend each other against any costs, claims or expenses,
including reasonable attorneys' fees, arising out of the breach on their
respective parts of the representations and warranties or agreements contained
in this Section 13. The representations and obligations under this Section 13
shall survive each applicable Option Closing or, if any such Option Closing
does not occur, the termination of this Agreement. Owner and Company agree
that the "Sponsor Fee", as defined in that certain Asset Management Agreement
between REIT and Reckson Australia Asset Management LLC, shall not be deemed a
commission for purposes of this Section 13.
Section 14. Arbitration. Any disputes under this Agreement shall be
resolved by expedited arbitration before a single arbitrator acceptable to
both Owner and Company in their reasonable judgment in accordance with the
rules of the American Arbitration Association, provided that, if Owner and
Company fail to agree on an arbitrator within five (5) days after a dispute
arises, then either party may request the Manhattan office of the American
Arbitration Association to designate an arbitrator. Such arbitrator shall have
at least ten (10) years of experience in commercial real estate in the New
York metropolitan tri-state area. All arbitration hearings hereunder shall be
held in New York City. The arbitrator shall, in rendering any decision
pursuant to this Section 14, answer only the specific question or questions
presented to him or her. In answering such question or questions (and
rendering their decision), the arbitrator shall be bound by the provisions of
this Agreement, and shall not add to, subtract from or otherwise modify such
provisions. The determination of the arbitrator shall be conclusive and
binding upon the parties. The costs and expenses of such arbitrator shall be
borne equally by the Owner and Company. Judgment may be had on the decision
and award of an arbitrator rendered pursuant to the provisions of this Section
14 and may be enforced in accordance with the laws of the State of New York.
Section 15. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes any and all prior agreements, written or oral, with respect to the
subject matter hereof.
(b) Waivers and Amendments. This Agreement may be amended,
modified, extended, superseded, canceled or renewed, and the terms and
conditions hereof may be waived, only by a written instrument signed by each
of the parties hereto.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (other than its
rules of conflicts of law to the extent that the application of the law of
another jurisdiction would be required thereby).
(d) Successors and Assigns. All covenants and agreements
contained herein, by or on behalf of any of the parties hereto, shall be
binding upon, and inure to the benefit of, the respective successors and
assigns or legal representatives, as the case may be, of the parties hereto;
provided, however, that Company shall not have the right to assign the Option,
this Agreement or any of its rights hereunder, and any attempt to do so shall
be void ab initio.
- 7 -
(e) Fair Agreement. Each of the parties hereby expressly
acknowledges and represents that (i) it has not relied upon any representation
not expressly set forth herein in entering into this Agreement; (ii) it is
entering into this Agreement of its own free will and accord, after consulting
with their respective attorneys; (iii) the terms and conditions set forth in
this Agreement are fair and represent the parties' business agreement; and
(iv) it is freely entering into this Agreement without force, duress or
coercion of any nature. Each party participated in the preparation of this
Agreement and all other documents in connection herewith, and no party shall
be deemed to be the drafter thereof.
(f) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be an original and all of which, when
taken together, shall constitute one and the same instrument.
(g) Section Headings. The Section headings contained in this
Agreement are for reference purposes and shall not affect the meaning or
interpretation of this Agreement.
(h) Further Assurances. The parties mutually agree that they
will execute such further documents as may be reasonably required to
accomplish the purposes of this Agreement.
(i) No Third Party Beneficiaries. No party not a signatory
hereto or a permitted successor or assign shall have any rights in and to the
subject matter hereof or in respect of any Option Property.
(j) Facsimile Signatures. The parties hereto agree that the
use of facsimile signatures for the execution of this Agreement shall be legal
and binding and shall have the same force and effect as if originally signed.
(k) Severability. Any provision in this Agreement that is
unenforceable or invalid in any jurisdiction shall, as to such jurisdiction,
be ineffective, but only to the extent of such unenforceability or invalidity
of and without affecting the remaining provisions thereof or affecting the
operation, enforceability or validity of such provision in any other
jurisdiction.
(l) Limitation of Liability.
(i) No present or future partner, member, director,
officer, shareholder, employee, advisor, affiliate or agent of or in Owner or
any affiliate of Owner shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement made
or entered into under or in connection with the provisions of this Agreement,
or any amendment or amendments to any of the foregoing made at any time or
times, heretofore or hereafter, and Company and its successors and assigns
and, without limitation, all other persons and entities, shall look solely to
Owner's assets for the payment of any claim or for any performance, and
Company hereby waives any and all such personal
- 8 -
liability. All such claims shall be limited to the amount of actual direct
damages suffered by Company, and shall not include any consequential, punitive
or special damages. The limitations of liability contained in this
subparagraph are in addition to, and not in limitation of, any limitation on
liability applicable to Owner provided elsewhere in this Agreement or by law
or by any other contract, agreement or instrument All documents to be executed
by Owner shall also contain the foregoing exculpation.
(ii) No present or future partner, member, director,
officer, shareholder, employee, advisor, affiliate or agent of or in Company
or any affiliate of Company shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement made
or entered into under or in connection with the provisions of this Agreement,
or any amendment or amendments to any of the foregoing made at any time or
times, heretofore or hereafter, and Owner and its successors and assigns and,
without limitation, all other persons and entities, shall look solely to the
Company's assets for the payment of any claim or for any performance, and
Owner hereby waives any and all such personal liability. All such claims shall
be limited to the amount of actual direct damages suffered by Owner, and shall
not include any consequential, punitive or special damages. The limitations of
liability contained in this subparagraph are in addition to, and not in
limitation of, any limitation on liability applicable to Company provided
elsewhere in this Agreement or by law or by any other contract, agreement or
instrument. All documents to be executed by Company shall also contain the
foregoing exculpation.
(iii) The provisions of this Section 15(l) shall survive
any expiration or termination of this Agreement.
(m) No Waiver. No waiver by a party of any provision of this
Agreement shall be deemed to be a waiver of any other provision hereof or a
waiver of any subsequent breach by a party of the same or any other provision.
(n) Number and Gender. All personal pronouns used in this
Agreement shall include the other genders. The singular shall include the
plural, and the plural the singular, whenever and as often as may be
appropriate.
(o) Other Activities; No Fiduciary Duties; Related Party
Transactions.
(i) Notwithstanding any provision to the contrary at law,
in equity or otherwise, Company acknowledges and agrees, on behalf of
itself and its affiliates, that Owner, its affiliates, and their
respective directors, officers, employees and agents, shall be permitted
to, and will, directly or indirectly, (1) engage in, (2) acquire, hold or
otherwise have any interest in, (3) otherwise enter into any relationship
or affiliation or otherwise undertake a joint venture or similar
arrangement, whether as an individual, partner, owner, member,
shareholder, director, officer, principal, agent, employee, trustee, or
consultant, with any person that shall directly or indirectly engage in,
or (4) enter into any agreement, including any license agreement with
respect to the use of its name or agreement in principle or letter of
intent, with respect to, any activity or business of any nature or
description (including, without limitation, any activity or business in
direct competition with those conducted or engaged in by or on behalf of
- 9 -
Owner or any of its affiliates and including, without limitation, the
acquisition, ownership, financing, leasing, operating, construction,
rehabilitation, renovation, improvement, management and development of
real property (whether or not such real property is directly or
indirectly in competition with Owner or otherwise may be of a type that
would be within the business objectives of Owner or its affiliates))
(collectively "Independent Ventures"), and shall owe no duty to refrain
engaging in any such Independent Ventures, notwithstanding any other
relationship or affiliation with Owner and its affiliates.
(ii) Neither Owner nor any of its affiliates shall have
any obligation to present, or grant rights of first offer, refusal or
other similar rights with respect to, any Independent Venture to Company.
In the event that Owner or any of its affiliates (or any of their
respective directors, officers, employees or agents) acquires knowledge
of a potential transaction or matter which may be a corporate opportunity
for Owner or its affiliates, on the one hand, and Company or its
affiliates, on the other hand, Owner or its affiliates, as the case may
be, shall, to the fullest extent permitted by law, have no duty to
communicate or offer such corporate opportunity to the Company.
(iii) Company shall not have any rights by virtue of this
Agreement in and to any Independent Venture or the income or profits
derived therefrom, regardless of :
(1) the location of such Independent Venture;
(2) whether such Independent Venture was presented
to Owner or any of its affiliates as a direct or indirect
result of its connection with Company; or
(3) whether such opportunity is consistent with the
investment philosophy or business strategy of Company or Owner.
None of Owner, any of its affiliates and none of their respective officers,
directors, employees or agents shall owe any fiduciary duty to, nor shall any
such person be liable for breach of fiduciary duty to, Company, any of its
affiliates or any of their respective officers, directors, employees, agents,
partners or interest holders, by reason of this Agreement or any other
arrangement or relationship among the parties.
[Signature Page to Follow]
- 10 -
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
duly executed as of the date first above written.
OWNER OPERATING PARTNERSHIP:
RECKSON OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY
CORP., its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name:
Title:
SUBSIDIARIES:
RM SQUARE LLC, a Delaware
limited liability company
By: RECKSON OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY
CORP., its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name:
Title:
RA ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ LLC, a
Delaware limited liability company
By: RECKSON OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY
CORP., its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Name:
Title:
- 11 -
RECKSON 520 HOLDINGS LLC, a
Delaware limited liability company
By: RECKSON OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY
CORP., its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name:
Title:
RA ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ LLC, a
Delaware limited liability company
By: RECKSON OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY
CORP., its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name:
Title:
COMPANY:
RECKSON AUSTRALIA OPERATING
COMPANY LLC, a Delaware limited liability
company
By: RECKSON AUSTRALIA LPT CORPORATION,
a Maryland corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
- 12 -
EXHIBIT A
Subsidiaries
------------
RM SQUARE LLC, a Delaware limited liability company
RA ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ LLC, a Delaware limited liability company
RECKSON 520 HOLDINGS LLC, a Delaware limited liability company
RA ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ LLC, a Delaware limited liability company
- 13 -
EXHIBIT B
Option Properties
-----------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
- 14 -
