EXCHANGE AGREEMENT
EXCHANGE AGREEMENT, dated as of June 16, 2000, between Stichting
Pensioenfonds ABP, a Dutch pension fund ("ABP") and Reckson Associates Realty
Corp., a Maryland corporation ("Reckson").
W I T N E S S E T H
WHEREAS, Reckson wishes to exchange the Common Shares (as defined
herein) for the Preferred Shares (as defined herein) and ABP wishes to exchange
the Preferred Shares for the Common Shares, on the terms and conditions set
forth herein:
NOW, THEREFORE, in consideration of the premises and the mutual
representations and covenants herein contained and for other good and valuable
consideration, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
The following terms shall have the following respective meanings
for all purposes of this Agreement:
"Agreement" means this Exchange Agreement, as it may be from time
to time amended, including the Exhibits hereto.
"Articles of Incorporation" means the Articles of Amendment and
Restatement of Reckson, dated May 22, 1995, as amended through the date hereof.
"Class A Common Stock" means the Class A Common Stock, par value
$.01 per share, of Reckson.
"Class B Common Stock" means the Class B Common Stock, par value
$.01 per share, of Reckson.
"Common Shares" means 4,181,818 shares of Class A Common Stock.
"Other ABP Shares" has the meaning set forth in Article III
hereof.
"Ownership Limit" has the meaning ascribed to such term in the
Articles of Incorporation.
"Preferred Shares" means 4,000,000 shares of Series B Convertible
Cumulative Preferred Stock, of Reckson.
"Shelf Registration Statement" has the meaning ascribed to such
term in the Registration Rights Agreement.
"Registration Rights Agreement" has the meaning set forth in
Article V hereof.
"Waiver Termination Date" has the meaning set forth in Article VI
hereof.
ARTICLE II.
THE EXCHANGE
Section 2.1 Exchange of Securities. (a) On the terms and subject
to the conditions of this Agreement, (i) ABP shall deliver to Reckson the
Preferred Shares in exchange for the Common Shares and, simultaneously, (ii)
Reckson shall deliver to ABP the Common Shares in exchange for the Preferred
Shares.
(b) The closing (the "Closing") of the exchange of the securities
referred to in clause (a) above shall be held at the offices of Xxxxx & Xxxx
LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as soon as practicable on
or after the date hereof, but, in any event, not later than two business days
after the date hereof. At the Closing, (i) ABP shall deliver to Reckson (x) one
or more certificates representing the Preferred Shares with a properly executed
instrument of transfer and (y) an executed copy of the representation letter
with respect to certain tax matters attached hereto as Exhibit A, (ii) Reckson
shall deliver to ABP certificates issued in ABP's name representing the Common
Shares and (iii) the parties will enter into the Registration Rights Agreement
attached hereto as Exhibit B.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF ABP
ABP hereby represents and warrants to Reckson that:
Section 3.1 Due Authorization. ABP has full right, power and
authority to enter into this Agreement and the Registration Rights Agreement and
the other documents required to be delivered by it hereunder, to perform its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. Each of this Agreement and the Registration
Rights Agreement has been duly executed and delivered by ABP. Each of this
Agreement and the Registration Rights Agreement is a legal, valid and binding
obligation of ABP, enforceable against it in accordance with its terms (except
as enforceability may be limited by any applicable bankruptcy, insolvency or
other laws affecting creditors' rights generally or by general principles of
equity, regardless of whether such enforceability is considered in equity or at
law).
Section 3.2 No Conflict. Neither the execution and delivery of
this Agreement or the Registration Rights Agreement or any of the other
documents contemplated hereby nor the consummation of the transactions
contemplated hereby or thereby by ABP will (a) conflict with, result in a breach
or violation of or constitute (or with notice or lapse of time or both
constitute) a default under, (i) any law, statute, regulation, order, judgment
or decree or (ii) any instrument, contract or other agreement to which ABP is a
party or by which ABP or any of its properties or assets is subject or bound, or
(b) result in the creation of, or give any party the right to create, any lien,
charge, option, security interest or other encumbrance upon the Preferred
Shares.
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Section 3.3 Ownership of Preferred Shares. ABP owns the Preferred
Shares free and clear of all claims, charges, equities, liens, security
interests, pledges, mortgages or encumbrances whatsoever ("Liens"). Upon
consummation of the transactions contemplated hereby, Reckson will have good and
valid title to the Preferred Shares, free and clear of any Liens other than
Liens created by Reckson.
Section 3.4 Ownership of Other Reckson Securities. ABP owns no
securities issued by Reckson, or securities convertible into or exchangeable for
securities issued by Reckson, other than the Preferred Shares and 389,540 shares
of Class B Common Stock (the "Other ABP Shares").
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF RECKSON
Reckson hereby represents and warrants to ABP that:
Section 4.1 Organization, Standing and Authorization. Reckson is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Maryland. It has full right, power and authority to enter into
this Agreement and the Registration Rights Agreement, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. Each of this Agreement and the Registration Rights Agreement has
been duly executed and delivered by Reckson. Each of this Agreement and the
Registration Rights Agreement is a legal, valid and binding obligation of
Reckson, enforceable against it in accordance with its terms (except as
enforceability may be limited by any applicable bankruptcy, insolvency or other
laws affecting creditors' rights generally or by general principles of equity,
regardless of whether such enforceability is considered in equity or at law).
Section 4.2 Common Shares. The Common Shares have been duly
authorized for issuance by Reckson pursuant to the terms of this Agreement and,
at Closing, will be validly issued, fully paid and nonassessable. The issuance
of the Common Shares is not subject to any preemptive or similar rights under
any provisions of applicable law, the Articles of Incorporation or by-laws of
Reckson or any agreement, contract or instrument to which Reckson is a party or
by which it or any of is properties or assets is bound.
Section 4.3 No Conflict. Neither the execution and delivery of
this Agreement or the Registration Rights Agreement nor the consummation of the
transactions contemplated hereby or thereby by Reckson will conflict with,
result in a breach or violation of or constitute (or with notice or lapse of
time or both constitute) a default under, (i) the articles of incorporation or
by-laws of Reckson, (ii) any law, statute, regulation, order, judgment or decree
or (iii) any instrument, contract or other agreement to which Reckson is a party
or by which Reckson or any of its properties or assets is subject or bound. The
Board of Directors of Reckson has taken all necessary action to exempt ABP from
the Ownership Limit in accordance with the terms of Article VI hereof.
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ARTICLE V.
REGISTRATION RIGHTS
Section 5.1 Registration Rights. The parties hereto hereby agree
to enter into the Registration Rights Agreement set forth as Exhibit B hereto
(the "Registration Rights Agreement") on the date hereof.
ARTICLE VI.
OWNERSHIP LIMIT
Section 6.1 Ownership Limit. It is understood that (i) the
ownership by ABP of the Common Shares and the Other ABP Shares will exceed the
Ownership Limit by approximately 525,000 shares as of the date of the Closing
and (ii) that the Board of Directors of Reckson has waived the Ownership Limit
with respect to ABP's ownership of approximately 525,000 shares in excess of the
Ownership Limit for the period from the Closing through the date (the "Waiver
Termination Date") which is 120 days after the date on which the Shelf
Registration Statement is declared effective by order of the Securities and
Exchange Commission, provided, however, that the Waiver Termination Date shall
be extended by the number of days, if any, during such 120 day period that
Reckson suspends sales of Class A Common Stock under the Shelf Registration
Statement pursuant to the terms of the Registration Rights Agreement or the
Prospectus (as defined in the Registration Rights Agreement) is not otherwise
usable for resales in accordance with the terms of the Registration Rights
Agreement. ABP agrees to sell or otherwise dispose of an aggregate of 525,000
shares of Class A Common Stock on or before the Waiver Termination Date and
acknowledges that from and after the Waiver Termination Date the waiver of the
Ownership Limit by the Board of Directors of Reckson with respect to ABP shall
expire and be of no further effect.
ARTICLE VII.
DIVIDENDS
Section 7.1 Dividends on the Preferred Shares and Common Shares.
The parties hereby agree that ABP shall be entitled to dividends accumulating in
respect of the Preferred Shares up to but excluding the date of the Closing and
that dividends accumulating in respect of the Preferred Shares from and
including the date of the Closing and thereafter shall be the property of the
Company and ABP shall have no rights or interest with respect thereto. The
parties hereby further agree that ABP shall be entitled to dividends in respect
of the Common Shares from and including the date of the Closing and that
dividends in respect of the Common Shares for the period prior to the date of
the Closing shall be the property of the Company and ABP shall have no rights or
interest with respect thereto. In order to enable the payment of the dividends
on the Preferred Shares and the Common Shares in accordance with the foregoing,
ABP agrees that it shall not transfer or otherwise retitle the name in which the
Common Shares are registered on or prior to July 10, 2000, which is the record
date for payment of dividends in respect of the Class A Common Stock. The
parties agree that the allocation of the dividends with respect to the Common
Shares shall be calculated based upon the number of days during the
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period from April 1, 2000 through June 30, 2000 that the Common Shares are
outstanding divided by the number of days in such period.
ARTICLE VIII.
MISCELLANEOUS
Section 8.1 Entire Agreement. This Agreement (including the
Exhibits hereto) contains all of the terms, conditions and representations and
warranties agreed upon by the parties relating to the subject matter of this
Agreement and supersedes all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written, respecting such
subject matter. No party shall be deemed to make any representation, warranty or
covenant to any other party with respect to this Agreement or the transactions
contemplated hereby except for the representations, warranties and covenants
contained herein (including the Exhibits hereto).
Section 8.2 Headings. The headings contained in this Agreement are
intended solely for convenience and shall not affect the rights of the parties
to this Agreement.
Section 8.3 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
Section 8.4 Assignment. This Agreement may not be assigned by any
party without the prior written consent of the other parties.
Section 8.5 Counterparts. This Agreement may be signed in two or
more counterparts with the same effect as if the signatures to each counterpart
were upon a single instrument, and all such counterparts together shall be
deemed an original of this Agreement. For purposes of this Agreement, a
facsimile copy of a party's signature shall be sufficient to bind such party.
Section 8.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard to
the conflicts of laws principles thereof.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as of the date set forth above.
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
STICHTING PENSIOENFONDS ABP
By: ABP Investments US, Inc., as Agent
By: /s/ Xxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President
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