Exhibit 10.3
COMMON STOCK DELIVERY AGREEMENT
This Common Stock Delivery Agreement (the "Agreement") is being made as
of the 21st day of June, 2005 by and between Reckson Operating Partnership,
L.P., a Delaware limited partnership (the "Operating Partnership"), and
Reckson Associates Realty Corp., a Maryland corporation (the "Company").
Recitals
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WHEREAS, the Company is the general partner of the Operating Partnership;
and
WHEREAS, the Operating Partnership and the Company have entered into an
Underwriting Agreement, dated June 21, 2005, with Citigroup Global Markets
Inc. (the "Underwriter"), as such Underwriting Agreement is incorporated by
reference into a Terms Agreement, dated June 21, 2005, among the Operating
Partnership, the Company and the Underwriter, providing for the sale to the
Underwriter by the Operating Partnership of $250,000,000 aggregate principal
amount of its 4.00% Exchangeable Senior Debentures due 2025 (the "Debentures")
under the Indenture, dated as of March 26, 1999, among the Operating
Partnership, as Issuer, the Company, as Guarantor, and The Bank of New York,
as Trustee (the "Indenture"), and granting the Underwriter an option to
purchase up to an additional $37,500,000 in principal amount of the Debentures
to cover any over-allotments, which Debentures shall be exchangeable into cash
and, if applicable, shares of common stock, par value $0.01 per share, of the
Company (the "Common Stock") under certain circumstances; and
WHEREAS, the Debentures will be fully and unconditionally guaranteed as
to the payment of principal thereof and interest thereon by the Company (the
"Guarantee").
NOW, THEREFORE, in consideration of the foregoing and in consideration of
the mutual covenants contained herein, the parties agree as follows:
Agreement
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1. The Operating Partnership hereby acknowledges that it is the primary
obligor of the Debentures and is, therefore, responsible for the obligations
contained in the Debentures, other than those related to the Guarantee.
2. If the Operating Partnership determines, in its sole discretion, to
deliver Net Shares (as such term is defined in the Debentures) upon an
exchange of the Debentures by a holder in accordance with the terms of the
Debentures and the Indenture, the Company agrees to issue to the Operating
Partnership the number of shares of Common Stock determined by the Operating
Partnership to be delivered to such holder in respect of such Net Shares, and
the Operating Partnership hereby directs the Company to deliver such Net
Shares to such holder on behalf of the Operating Partnership in accordance
with the terms of the Debentures and the Indenture.
3. The Operating Partnership agrees to issue to the Company on a
concurrent basis a number of "Partnership Units" (as defined in the Amended
and Restated Agreement of Limited Partnership of the Operating Partnership,
dated June 2, 1995, as amended) equal in number to the number of shares of
Common Stock issued by the Company pursuant to this Agreement.
4. The Company agrees that it will not consolidate with or merge into
another business entity or transfer or lease all or substantially all of its
assets, unless:
o either (1) the Company is the continuing entity in the case of
a merger or (2) the resulting, surviving or acquiring entity,
if other than the Company, is a U.S. entity and it expressly
assumes the Company's obligations under this Agreement and the
Indenture;
o immediately after giving effect to the transaction, no Event of
Default under, and as defined in, the Indenture and no
circumstances which, after notice or lapse of time or both,
would become an Event of Default under the Indenture, shall
have happened and be continuing; and
o the Company has delivered to the Trustee an officers'
certificate and a legal opinion confirming that the Company has
complied with the Indenture.
5. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to conflict
laws, rules or principles.
(b) No provision of this Agreement may be amended, modified or
waived, except in writing signed by both parties.
(c) In the event that any claim of inconsistency between this
Agreement and the terms of the Indenture arise, as they may from time to
time be amended, the terms of the Indenture shall control.
(d) If any provision of this Agreement shall be held illegal,
invalid or unenforceable by any court, this Agreement shall be construed
and enforced as if such provision had not been contained herein and shall
be deemed an Agreement between the parties hereto to the full extent
permitted by applicable law.
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(e) This Agreement shall be binding upon, inure to the benefit of
and be enforceable by the respective successors and assigns of the
parties hereto.
(f) This Agreement may not be assigned by either party without the
prior written consent of both parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year above written.
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President,
General Counsel and Secretary
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President,
General Counsel and Secretary
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