EXHIBIT 10.2
RESTRUCTURING AGREEMENT
THIS RESTRUCTURING AGREEMENT dated April 29, 2003 among Reckson
Strategic Venture Partners, LLC, a Delaware limited liability company (the
"Company"), RSVP Holdings LLC, a Delaware limited liability company
("Holdings"), Reckson Asset Partners LLC, a Delaware limited liability company
("RAP"), UBS Warburg Real Estate Securities Inc., a Delaware corporation
("UBS"), and Stratum Realty Fund, L.P., a Delaware limited partnership
("Stratum" and together with UBS, the "Class A Sellers").
RECITALS
A. The Company was formed as a limited liability company under the
Delaware Limited Liability Company Act on January 23, 1998.
B. Holdings and Xxxxx Xxxxxx Real Estate Securities Inc. entered into
the Operating Agreement of the Company dated as of March 5, 1998, as amended by
the Supplemental Agreement to Operating Agreement of the Company dated as of
April 24, 1998 (as amended, the "Operating Agreement").
C. Certain disputes have arisen between Holdings and the Class A
Sellers regarding the management and operations of the Company.
D. In settlement of such disputes, the parties have agreed that
Holdings will purchase the interests of the Class A Sellers in the Company as
more particularly set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS. All capitalized terms used herein are defined on
Schedule 1 annexed hereto.
2. TRANSACTIONS. At the closing of the transactions contemplated hereby
(the "Closing"), each of the Class A Sellers will convey to Holdings or its
designee ("Buyer") all of such Class A Member's membership interest in the
Company. The consideration for such conveyances shall be the payment to the
Class A Sellers of cash and the conveyance to the Class A Sellers of certain
property; such cash and property to have an aggregate valuation, as provided
herein, of $165,325,000 (the "Purchase Price").
3. CONTEMPORANEOUS TRANSACTIONS. On the date hereof, the Company shall
make the following payments and conveyances to the Class A Sellers on account of
the Purchase Price:
(i) The Company shall pay to the Class A Sellers the sum of
$30,165,000, representing a portion of the capital contributions previously made
to the Company for investment in the Medical Platform, which amount shall be
paid by Federal wire transfer to one or more accounts designated by the Class A
Sellers in writing.
(ii) The Company shall convey to Florida Parking Lot LLC, a
Delaware limited liability company, as designee of the Class A Sellers, on an
"as is, where is" basis, all of the Company's right, title and interest in RSVP
Metropolitan Parking, LLC, pursuant to an Assignment and Assumption of
Membership Interest in the form annexed hereto as Exhibit A, for which
conveyance the Company shall receive a credit against the Purchase Price in the
amount of $28,500,000 (the "Quik-Park Credit"). Concurrently with such
conveyance, (i) the Class A Sellers shall have caused the execution of, and
delivered to, the Company Parties the release in the form annexed hereto as
Exhibit C-3; (ii) the Company Parties shall have caused the execution of, and
delivered to, the Class A Sellers the release in the form annexed hereto as
Exhibit D-3 and (iii) RSVP Metropolitan Parking, LLC shall have executed and
delivered to Metropolitan Quik Park of South Florida, LLC and M & E Holdings LLC
a letter of even date herewith and simultaneously therewith have wired the
amount of $1,250,000 in accordance with the first paragraph of that letter.
(iii) The Company shall pay to the Class A Sellers the amount
of $10,825,000, representing all undistributed Capital Event Proceeds as of the
date hereof, which amount shall be credited against the Purchase Price and paid
by Federal wire transfer to one or more accounts designated by the Class A
Sellers in writing.
4. CLOSING. The Closing shall occur on a date set forth in a notice
from Holdings to the Class A Sellers and the Escrow Agent (as such term is
hereinafter defined) (the "Closing Date"), which notice shall be given not less
than two (2) Business Days prior to the designated Closing Date; provided,
however, that in no event shall the Closing Date occur later than August 15,
2003 (the "Outside Closing Date").
(a) At the Closing, the following deliveries or payments shall be made
in accordance with the terms and conditions of the escrow agreement (the "Escrow
Agreement") annexed hereto as Exhibit F, pursuant to which Xxxxxxx, Xxxxxxxxx
LLP (the "Escrow Agent") shall act as escrow agent:
(i) Each of the Class A Sellers shall assign to Buyer all of
such Class A Member's right, title and interest in the Company, free and clear
of all liens and encumbrances, pursuant to an Assignment and Assumption of
Membership Interest in the respective forms of Exhibit B-1 and Exhibit B-2
annexed hereto.
(ii) [Intentionally omitted.]
(iii) The Class A Sellers shall be paid an amount equal to the
excess of all undistributed Net Investment Revenues on the date of the Company
Deposit (as such term is defined in the Escrow Agreement) over $500,000, which
amount shall not be credited against the Purchase Price.
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(iv) The Class A Sellers shall be paid the balance of the
Purchase Price (after crediting the amount of the transfers and payments
described in Paragraph 3 and Paragraph 4(b)).
(v) The Class A Sellers shall have caused the execution of,
and delivered to (i) the Company Parties (other than Xxxx Xxxxxx), the release
in the form annexed hereto as Exhibit C-1(A) and Exhibit C-1(B) and (ii) Xxxx
Xxxxxx, the release in the form annexed hereto as Exhibit C-2(A) and Exhibit
C-2(B).
(vi) The Company Parties (other than Xxxx Xxxxxx) shall have
caused the execution of, and delivered to the Class A Parties, the release in
the form annexed hereto as Exhibit D-1(A) and Exhibit D-1(B) (ii) Xxxx Xxxxxx
shall have executed and delivered to the Class A Parties, the release in the
form annexed hereto as Exhibit D-2(A) and Exhibit D-2(B).
(vii) The Class A Sellers, on the one hand, and the Company,
Holdings and RAP, on the other hand, shall each deliver to the other opinions of
their respective counsel in the forms annexed hereto as Exhibit E-1 and Exhibit
E-2.
(viii) Each of the parties shall deliver evidence satisfactory
to the other parties that all necessary approvals and/or consents by the
members, partners, officers, directors and/or shareholders, as the case may be,
have been obtained.
(ix) The Class A Sellers, on the one hand, and the Company,
RAP and Holdings, on the other hand, shall each deliver to the other a writing
affirming that all of the representations and warranties made in this Agreement
by such parties are accurate in all material respects as of the Closing Date.
(x) Each of the parties shall execute and deliver such other
documents and instruments as may be necessary or appropriate in order to
effectuate the transactions contemplated hereby.
(b) The Class A Sellers shall be paid the amount of any Capital Event
Proceeds received by the Company after the date hereof, which amount shall first
be paid to the Escrow Agent in accordance with the Escrow Agreement and be
credited against the Purchase Price upon payment from the Escrow Agent to the
Class A Sellers.
(c) On the date hereof, the Class A Sellers are executing and
delivering to the Escrow Agent each of the closing documents described in
subparagraphs (i), (v), (vii), (viii) and (ix) of Paragraph 4(a); such documents
shall be held by the Escrow Agent in accordance with the terms and conditions of
the Escrow Agreement.
(d) All payments to the Class A Sellers pursuant to this Paragraph 4
shall be made in immediately available funds by Federal wire transfer to
accounts designed by the Class A Sellers in writing.
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5. COVENANTS.
(a) From and after the date hereof and until the earlier to occur of
the Closing or the termination of this Agreement: (x) neither the Class A
Sellers, on the one hand, nor the Company and Holdings, on the other hand, shall
take any action against each other relating to the Company and/or any
Investment; and (y) the Class A Sellers shall not interfere with the operations
of the Company, RAP and/or any Investment; provided, however, that if any party
commits a material breach of this Agreement, then the non-breaching party may,
at its option, terminate the provisions of this Paragraph 5(a).
(b) From and after the date hereof, up to $3,691,577 of the remaining
capital contributions that were made to the Company for investment in the
Medical Platform, after the payment referred to in clause (i) of Paragraph 3
above, may be used by the Company (subject to the prior approval of the Class A
Sellers, which approval shall not be unreasonably withheld, conditioned or
delayed) in connection with the Catskills Platform and/or the Wilton Platform,
and for any other uses to which the Class A Sellers consent in their sole and
absolute discretion. The provisions of this Paragraph 5(b) shall survive the
Closing or the termination of this Agreement.
(c) From and after the date hereof and until the earlier to occur of
the Closing or the termination of this Agreement, the Company and Holdings shall
afford the Class A Sellers and their respective agents full and free access to
the properties, books and records of the Company and, to the extent available to
the Company, the Platforms, as well as to the independent accountants of the
Company, in order to permit such reasonable investigations of the Company and
the Platforms as the Class A Sellers may deem appropriate. The Class A Sellers
shall provide reasonable prior notice of any investigation, and such
investigation shall be conducted in a manner as not to interfere unreasonably
with any of the properties, businesses or operations of the Company or the
Platforms. The amount of Net Investment Revenues and Capital Event Proceeds
available to be distributed pursuant to this Agreement shall be confirmed by an
auditor selected by the Class A Sellers.
(d) The Class A Sellers acknowledge that the Company and Holdings
intend to arrange financing for the acquisition by the Buyer of the interest of
the Class A Sellers in the Company.
(e) From and after the date hereof and until the earlier to occur of
the Closing or the termination of this Agreement, the Company shall pay to the
Class A Sellers the amount of any Capital Event Proceeds received by the
Company, which amount, shall be credited against the Purchase Price.
(f) Upon the execution and delivery of this Agreement, each individual
who is a Company Party shall be deemed to have resigned from any position that
he may now hold as an officer or manager of any of the Company Parties
comprising the Quik-Park Platform.
6. FAILURE TO CLOSE; REMEDIES.
(a) If the Company and Holdings shall, for any reason other than a
default or failure to perform on the part of the Class A Sellers, fail to
deposit the balance of the Purchase Price (after crediting the amount of the (i)
transfers and payments described in Paragraph 3 and (ii) Capital Event Proceeds,
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if any, received by the Company and distributed to the Class A Sellers after the
date of this Agreement), the balance of the Company Deposit and all of the
Company Documents (as such terms are defined in the Escrow Agreement) with the
Escrow Agent in accordance with the terms and conditions of Escrow Agreement on
or before the Business Day immediately preceding the Outside Closing Date, then
this Agreement shall automatically terminate and, except as set forth in
Paragraph 6(d) below, the parties shall have no further rights or obligations
hereunder.
(b) If the Company and/or Holdings fail to comply with their
obligations pursuant to Paragraph 6(a) hereof, then, provided that the Class A
Sellers provide the Company and Holdings with written notice specifying such
failure and the Company and/or Holdings fail to cure such failure within five
(5) business days of receipt of such notice, the Class A Sellers shall have the
right to terminate this Agreement, in which case, except as set forth in
Paragraph 6(d) below, the parties shall have no further rights or obligations
hereunder.
(c) If either of the Class A Sellers shall, for any reason, other than
a default or failure to perform on the part of the Company, Holdings or RAP,
breach their obligations under this Agreement, the Company, Holdings and RAP
shall have the right to pursue any and all rights and remedies available to the
Company, Holdings and RAP at law or in equity, including, without limitation,
the remedy of specific performance.
(d) If this Agreement is terminated pursuant to any of the provisions
of this Paragraph 6, then (i) all parties shall retain all rights and claims as
against each other as existed prior to execution of this Agreement, and all cash
and/or in kind payments made pursuant to or in connection with this Agreement
shall be binding under this Agreement, but shall be without prejudice as to how
to interpret the Operating Agreement; (ii) subject to clauses (iii) and (iv)
below, all cash and/or in kind distributions (at the values reflected in this
Agreement) made to the Class A Sellers pursuant to this Agreement on or prior to
the date of termination of this Agreement, other than distributions of Net
Investment Revenues (which distributions of Net Investment Revenues shall be
treated as required under the Operating Agreement), shall be deemed
distributions of Capital Events Proceeds to the Class A Sellers in accordance
with the terms and provisions of the Operating Agreement, as modified by the
April 5, 2002 letter from UBS and Stratum to the Company, a copy of which is
annexed hereto as Exhibit G (the "Distribution Letter"), (iii) any payments or
distributions, other than Net Investment Revenues, made to the Class A Sellers
hereunder in excess of the amount which in any event would have been due the
Class A Sellers pursuant to the Operating Agreement (as modified by the
Distribution Letter) will be treated as "prepaid" distributions to the Class A
Sellers, and Holdings shall be entitled to receive the next cash available for
distribution by the Company, from whatever source derived, which would otherwise
have been distributable to the Class A Sellers until Holdings is "made whole"
(i.e., Holdings shall be entitled to receive all amounts subsequently available
for distribution by the Company which, under the terms of the Operating
Agreement (as modified by the Distribution Letter), would otherwise be payable
to the Class A Sellers, until each of the Class A Sellers and Holdings have
received an aggregate amount pursuant to this Agreement and pursuant to
subsequent distributions by the Company equal to the amounts that it would have
received if the terms and conditions of this Agreement had not been
implemented), and (iv) the conveyance to the Class A Sellers of the Company's
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interest in the Quik-Park Platform will be treated as a distribution of Capital
Event Proceeds in an amount equal to ninety three (93%) percent of the Quik-Park
Credit (the "Resulting Credit"). The Resulting Credit shall be applied: (x)
first, to pay in full the Allocated Accrued Class A Basic Return from the
Quik-Park Platform, (y) then, to pay in full the Class A Sellers' Allocated Net
Adjusted Capital Contribution for the Quik-Park Platform (i.e., $20,148,430),
and (z) finally, to the unpaid Class A Basic Return. The provisions of this
Section 6(d) shall survive the termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
(a) The Company, Holdings and RAP jointly and severally represent and
warrant to the Class A Sellers that:
(i) Organization. Each of the Company, Holdings and RAP is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the full power and authority to enter
into and perform its obligations under this Agreement, the Closing Documents to
which it is a party and the transactions contemplated hereby and thereby. The
execution, delivery and performance by each of the Company, Holdings and RAP of
this Agreement and the Closing Documents to which it is a party, and the
consummation of the transactions contemplated hereby and thereby, have been duly
authorized by the appropriate governing bodies of the Company, Holdings and RAP
and are valid and binding obligations of the Company, Holdings and RAP,
enforceable against each in accordance with their terms.
(ii) Consents. All Consents needed by the Company, Holdings
and/or RAP to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, including, without limitation, the approval of
the bankruptcy court in the matter of FrontLine Capital Group, have been
obtained and there is no other Consent of, or filing or notification to, any
government or governmental agency or authority or any other person or entity
which is required to be made or obtained by the Company, Holdings or RAP to
permit such party to do any of the foregoing. All such Consents are valid and in
full force and effect. No material violations exist or have been recorded in
respect of any Consent. No proceeding is pending or, to the best knowledge of
the Company, Holdings and RAP threatened, looking toward the revocation,
nullification or limitation of any such Consent, and to the best knowledge of
the Company, Holdings and RAP, there is no basis or grounds for any such
revocation, nullification or limitation.
(iii) No Conflict. The execution and delivery by each of the
Company, Holdings and RAP of this Agreement and the Closing Documents to which
it is a party, and the performance and the consummation of the transactions
contemplated hereby and thereby by the Company, Holdings and RAP, will not,
directly or indirectly: (i) result in or violate the organizational documents of
the Company, Holdings and/or RAP; (ii) except as set forth on Schedule 7(a)(iii)
annexed hereto, violate or conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to which
the Company, Holdings and/or RAP is a party; (iii) result in any violation of
any applicable law, rule, regulation, judgment, order or decree of any
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government or governmental agency or authority or any court, tribunal or
arbitrator(s) of competent jurisdiction, or any governmental or non-governmental
self-regulatory organization, agency or authority having jurisdiction over the
Company, Holdings and/or RAP; or (iv) require any consent, approval, action,
filing or notice under any provision of law, statute, rule or regulation
applicable to the Company, Holdings and/or RAP or from any third-party.
(iv) No Liens. The Company owns one hundred percent (100%) of
the membership interests in RSVP Metropolitan Parking, LLC. Such interests, and
all cash paid hereunder, are free and clear of any security interest, pledge,
mortgage, lien (including, without limitation, environmental and tax liens),
charge, encumbrance, adverse claim, preferential arrangement or restriction of
any kind, including, without limitation, any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of ownership.
(v) Metropolitan Quik Park of South Florida, LLC. RSVP
Metropolitan Parking, LLC is a Class A member of Metropolitan Quik Park of South
Florida, LLC. Metropolitan Quik Park of South Florida, LLC, through the
following wholly-owned limited liability companies (the "Subsidiaries"),
manages, owns or leases real property on which automotive parking-related
services are provided: 100 Ocean Garage, LLC, Flamingo Garage, LLC, Flamingo
Garage II, LLC, Prime Garage, LLC, Dolphin Brickell, LLC, Eagle Garage, LLC,
Xxxxx Garage, LLC, Boulevard Garage, LLC, Arena Garage, LLC, Independence
Garage, LLC, Liberty Garage, LLC, Internet Garage, LLC, Market Garage, LLC,
Brickell Park Garage, LLC, 550 Brickell Associates, LLC, Brickell Corridor, LLC,
Pelican Hotel, LLC, Seagull Garage, LLC, Liberty Garage, LLC, Boulevard Garage
II, LLC, Renaissance Garage, LLC, QP of Florida, LLC, International Garage, LLC,
444 Brickell Garage, LLC, 1110 Brickell Garage, LLC, Washington Garage, LLC,
Xxxx in the Grove, LLC, 1458 Ocean Garage, LLC and Metropolitan Acquisition,
LLC.
(vi) Indebtedness. As of September 30, 2002, to the
information and belief of the Company, Holdings and RAP (which information and
belief is based solely upon the internal records of Metropolitan Quik Park of
South Florida, LLC), the amount of indebtedness encumbering properties managed,
owned or leased by the Subsidiaries is set forth on Schedule 7(a)(vi) annexed
hereto.
(vii) Properties. As of September 30, 2002, the Subsidiaries
managed, owned or leased the properties set forth on Schedule 7(a)(vii) annexed
hereto.
(viii) Undistributed Net Investment Revenues. As of the date
hereof, the amount of undistributed Net Investment Revenues is less than
$500,000.
(ix) Undistributed Capital Event Proceeds. Except for a
reserve of approximately $3,000,000 established in connection with one of the
Investments, as of the date hereof, the amount of undistributed Capital Event
Proceeds existing immediately prior to the making of the payment covered by
clause (iii) of Paragraph 3 is $10,825,000.
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(b) UBS represents and warrants to the Company, Holdings and RAP that:
(i) Organization. UBS is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization and has
the full power and authority to enter into and perform its obligations under
this Agreement, the Closing Documents to which UBS is a party and the
transactions contemplated hereby and thereby. The execution, delivery and
performance by UBS of this Agreement and the Closing Documents to which UBS is a
party, and the consummation of the transactions contemplated hereby and thereby,
have been duly authorized by the appropriate governing bodies of UBS and are
valid and binding obligations of UBS, enforceable against UBS in accordance with
their terms.
(ii) Consents. All Consents needed by UBS to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
have been obtained and there is no other Consent of, or filing or notification
to, any government or governmental agency or authority or any other person or
entity which is required to be made or obtained by UBS to permit UBS to do any
of the foregoing. All such Consents are valid and in full force and effect. No
material violations exist or have been recorded in respect of any Consent. No
proceeding is pending or, to the best knowledge of UBS, threatened looking
toward the revocation, nullification or limitation of any such Consent, and to
the best knowledge of UBS, there is no basis or grounds for any such revocation,
nullification or limitation.
(iii) No Conflict. The execution and delivery by UBS of this
Agreement and the Closing Documents to which UBS is a party, and the performance
and the consummation of the transactions contemplated hereby and thereby by UBS,
will not, directly or indirectly: (i) result in or violate the organizational
documents of UBS; (ii) violate or conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which UBS is a party; (iii) result in any violation of any
applicable law, rule, regulation, judgment, order or decree of any government or
governmental agency or authority or any court, tribunal or arbitrator(s) of
competent jurisdiction, or any governmental or non-governmental self-regulatory
organization, agency or authority having jurisdiction over UBS; or (iv) require
any consent, approval, action, filing or notice under any provision of law,
statute, rule or regulation applicable to UBS or from any third party.
(iv) No Liens. The Class A Sellers own one hundred percent
(100%) of the Class A Units. The Class A Units owned by UBS are free and clear
of any security interest, pledge, mortgage, lien (including, without limitation,
environmental and tax liens), charge, encumbrance, adverse claim, preferential
arrangement or restriction of any kind, including, without limitation, any
restriction on the use, voting, transfer, receipt of income or other exercise of
any attributes of ownership.
(c) Stratum represents and warrants to the Company, Holdings and RAP
that:
(i) Organization. Stratum is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization and
has the full power and authority to enter into and perform its obligations under
this Agreement, the Closing Documents to which Stratum is a party and the
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transactions contemplated hereby and thereby. The execution, delivery and
performance by Stratum of this Agreement and the Closing Documents to which
Stratum is a party, and the consummation of the transactions contemplated hereby
and thereby, have been duly authorized by the appropriate governing bodies of
Stratum and are valid and binding obligations of Stratum, enforceable against
Stratum in accordance with their terms.
(ii) Consents. All Consents needed by Stratum to execute and
deliver this Agreement and to consummate the transactions contemplated hereby
have been obtained and there is no other Consent of, or filing or notification
to, any government or governmental agency or authority or any other person or
entity which is required to be made or obtained by Stratum to permit Stratum to
do any of the foregoing. All such Consents are valid and in full force and
effect. No material violations exist or have been recorded in respect of any
Consent. No proceeding is pending or, to the best knowledge of Stratum,
threatened looking toward the revocation, nullification or limitation of any
such Consent, and to the best knowledge of Stratum, there is no basis or grounds
for any such revocation, nullification or limitation.
(iii) No Conflict. The execution and delivery by Stratum of
this Agreement and the Closing Documents to which the Stratum is a party, and
the performance and the consummation of the transactions contemplated hereby and
thereby by Stratum, will not, directly or indirectly: (i) result in or violate
the organizational documents of Stratum; (ii) violate or conflict with, or
result in a breach of any of the terms or provisions of, or constitute a default
under any contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which Stratum is a party; (iii) result in any
violation of any applicable law, rule, regulation, judgment, order or decree of
any government or governmental agency or authority or any court, tribunal or
arbitrator(s) of competent jurisdiction, or any governmental or non-governmental
self-regulatory organization, agency or authority having jurisdiction over
Stratum; or (iv) require any consent, approval, action, filing or notice under
any provision of law, statute, rule or regulation applicable to Stratum or from
any third party.
(iv) No Liens. The Class A Sellers own one hundred percent
(100%) of the Class A Units. The Class A Units owned by Stratum are free and
clear of any security interest, pledge, mortgage, lien (including, without
limitation, environmental and tax liens), charge, encumbrance, adverse claim,
preferential arrangement or restriction of any kind, including, without
limitation, any restriction on the use, voting, transfer, receipt of income or
other exercise of any attributes of ownership.
8. INDEMNITIES.
(a) Each of the Company and Holdings, jointly and severally, and RAP,
severally but not jointly, shall indemnify, defend and hold harmless each of the
Class A Parties from and against any and all loss, cost, damage and expense
(including, without limitation, reasonable attorneys' fees) incurred by any of
the indemnitees as a result of (i) a breach of any covenant or any material
inaccuracy in any of the representations and warranties of the Company, Holdings
or RAP, as the case may be, contained herein, and/or (ii) any event or act which
occurs on or after the Closing Date with respect to the Company, any remaining
Investment (other than the Quik-Park Platform) and/or any assets relating to any
remaining Investment (other than the Quik-Park Platform), which event or act is
not the result of the fraud, willful misconduct or gross negligence of a Class A
Party.
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(b) Each of the Class A Sellers, severally but not jointly, shall
indemnify, defend and hold harmless each of the Company Parties from and against
any and all loss, cost, damage and expense (including, without limitation,
reasonable attorneys' fees) incurred by any of the indemnitees as a result of
(i) a breach of any covenant or a material inaccuracy in any of the
representations and warranties of such Class A Sellers contained herein and/or
(ii) any event or act which occurs on or after the date hereof with respect to
the Quik-Park Platform and which is not the result of the fraud, willful
misconduct or gross negligence of a Company Party.
(c) An indemnified party shall give the indemnifying parties written
notice of any matter which an indemnified party has determined has given or
could give rise to a right of indemnification under this Agreement, within sixty
(60) days of such determination, stating the amount of the loss, if known, and
method of computation thereof, and containing a reference to the provisions of
this Agreement in respect of which such right of indemnification is claimed or
arises. The obligations and liabilities of the indemnifying parties under this
Paragraph 8 with respect to losses arising from claims of any third party which
are subject to the indemnification provided for in this Paragraph 8 ("Third
Party Claims") shall be governed by, and be contingent upon, the following
additional terms and conditions: if an indemnified party shall receive notice of
any Third Party Claim, the indemnified party shall give the indemnifying parties
notice of such Third Party Claim within thirty (30) days of the receipt by the
indemnified party of such notice; provided, however, that the failure to provide
such notice shall not release the indemnifying parties from any of their
obligations under this Paragraph 8, except to the extent that an indemnifying
party is materially prejudiced by such failure, and shall not relieve the
indemnifying parties from any other obligation or liability that it may have to
any indemnified party otherwise than under this Paragraph 8. If the indemnifying
party acknowledges in writing its obligation to indemnify the indemnified party
hereunder against any losses that may result from such Third Party Claim, then
the indemnifying party shall be entitled to assume and control the defense of
such Third Party Claim at its expense and through counsel of its choice if it
gives notice of its intention to do so to the indemnified party within five (5)
days of the receipt of such notice from the indemnified party; provided,
however, that if there exists, or is reasonably likely to exist, a conflict of
interest that would make it inappropriate in the judgment of the indemnified
party for the same counsel to represent both the indemnified party and the
indemnifying party, then the indemnified party shall be entitled to retain its
own counsel, in each jurisdiction for which the indemnified party determines
counsel is required, at the expense of the indemnifying party. In the event the
indemnifying party exercises the right to undertake any such defense against any
such Third Party Claim as provided above, the indemnified party shall reasonably
cooperate with the indemnifying party in such defense and make available to the
indemnifying party, at the indemnifying party's expense, all witnesses,
pertinent records, materials and information in the indemnified party's
possession or under the indemnified party's control relating thereto as is
reasonably required by the indemnifying party. Similarly, in the event the
indemnified party is, directly or indirectly, conducting the defenses against
any such Third Party Claim, the indemnifying party shall cooperate with the
indemnified party in such defense and make available to the indemnified party,
at the indemnifying party's expense, all such witnesses, records, materials and
information in the indemnifying party's possession or under the indemnifying
party's control relating thereto as is reasonably required by the indemnified
party. No such Third Party Claim may be settled by the indemnifying party
without the written consent of the indemnified party, which consent shall not be
unreasonably withheld, conditioned or delayed.
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9. MISCELLANEOUS.
(a) Execution in Counterparts; Binding Effect. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
and all of which together shall be considered one and the same agreement, and
shall become a binding agreement when one or more counterparts have been signed
by each party and delivered to the other parties.
(b) Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York, without
giving effect to the choice-of-law provisions thereof.
(c) Notices. All notices and other communications hereunder shall be in
writing, delivered personally, or mailed by Federal Express or another
nationally recognized overnight courier, be deemed received and effective upon
receipt in the case of personal delivery and on the next succeeding Business Day
if sent by Federal Express or another nationally recognized overnight courier,
and addressed as follows:
(i) If to the Company and/or Holdings:
Reckson Strategic Venture Partners, LLC
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Managing Director
with copies to:
RSVP Holdings LLC
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
and
Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
and
Xxxxx X. Xxxxxxx, Esq.
If to the Class A Sellers:
UBS Warburg Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx
-11-
with a copy to:
Cole, Schotz, Meisel, Xxxxxx & Xxxxxxx
Xxxxx Plaza North
00 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxx Xxxxx, Esq.
and to
Stratum Realty Fund, L.P.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
with a copy to:
Cadwalader Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxxxx Xxxxx, Esq.
or to such other address or addressee as hereafter shall be furnished as
provided in this Paragraph 9(c) by any of the parties hereto to the other
parties hereto.
(d) Expenses. Except as specifically provided in Paragraph 9(h), the
parties hereto shall each be responsible for its own legal expenses and the cost
of its consultants and experts.
(e) Titles and Headings. Titles are inserted for convenience of
reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of the Company, Holdings, RAP and the Class A Sellers and shall be binding upon
the Company, Holdings, RAP and the Class A Sellers and their respective heirs,
executors, administrators, trustees, successors and permitted assigns; provided,
however, that (x) the Class A Sellers may not assign any rights or delegate any
of the obligations created under this Agreement without the prior written
consent of the Company and Holdings, which consent shall not be unreasonably
withheld (except that a Class A Seller may, upon prior written notice to the
Company, Holdings and RAP, assign its rights hereunder to an entity that
controls, is controlled by, or is under common control with such Class A
Seller); and (y) except for the designation by Holdings of one (1) or more
designees to accept the conveyance of the Class A Sellers' membership interests
in the Company, the Company, Holdings and/or RAP may not assign any rights, or
delegate any of the obligations created under this Agreement, without the prior
written consent of the Class A Sellers, which consent may not be unreasonably
withheld.
-12-
(g) Entire Agreement. This Agreement, including the Exhibits and
Schedules hereto, represents the entire agreement and understanding of the
parties with reference to the transactions set forth herein. This Agreement
supercedes all prior negotiations, discussions, correspondence, communications,
understandings and agreements (including, without limitation, the Summary of
Terms of Proposed Restructuring of Reckson Strategic Venture Partners, LLC
previously executed by the parties) between the parties relating to the subject
matter of this Agreement and all prior drafts of this Agreement, all of which
are merged into this Agreement.
(h) Legal Fees. In the event of any dispute regarding any of the
provisions of this Agreement, the party which prevails in court, as determined
by the court, shall be entitled to recover its reasonable legal fees and
expenses.
(i) Time of Essence. Time shall be of the essence with respect to any
time periods and/or dates set forth herein.
(j) Signatures. Facsimile copies of original signatures by any of the
parties hereto shall be deemed to be originals of such signatures.
(k) Public Announcements. No party to this Agreement shall make, or
cause to be made, any press release or public announcement in respect of this
Agreement or the transactions contemplated hereby or otherwise communicate with
any news media without prior notification to the other party, and the parties
shall cooperate as to the timing and contents of any such press release or
public announcement.
(l) Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any law or public policy, all
other terms 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 materially 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 in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
(m) No Third Party Beneficiaries. This Agreement shall be binding upon
and inure solely to the benefit of the parties hereto, the other Company Parties
not party hereto and their respective successors and permitted assigns. Nothing
contained herein, express or implied, is intended to or shall confer upon any
other person or party any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
(n) Amendment. This Agreement may not be amended or modified except by
an instrument in writing signed by, or on behalf of, the Company, Holdings and
the Class A Sellers.
-13-
(o) Conflict. In the event of a conflict between the provisions of this
Agreement and the provisions of the Operating Agreement (including, without
limitation, the provisions of Section 6.01 thereof), the provisions of this
Agreement shall prevail.
(p) Survival of Closing. The provisions of Paragraphs 6, 7, 8, and 9
hereof, and all terms contained in such paragraphs which are defined on Schedule
1 annexed hereto, shall survive the Closing without limitation.
(q) Waiver. Each party to this Agreement may (i) extend the time for
the performance of any of the obligations or other acts of any other party, (ii)
waive any inaccuracies in the representations and warranties of any other party
contained herein or in any document delivered by such other party pursuant
hereto or (iii) waive compliance with any of the agreements or conditions of any
other party contained herein. Any such extension or waiver shall be valid only
if set forth in an instrument in writing signed by the party to be bound
thereby. Any waiver of any term or condition shall not be construed as a waiver
of any subsequent breach or a subsequent waiver of the same term or condition,
or a waiver of any other term or condition, of this Agreement. The failure of
any party to assert any of its rights hereunder shall not constitute a waiver of
any of such rights.
[Remainder of page intentionally left blank.
Next page is the signature page.]
-14-
IN WITNESS WHEREOF, the parties have executed this Restructuring
Agreement on the date first written above.
RECKSON STRATEGIC
VENTURE PARTNERS, LLC
By: RSVP Holdings LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
----------------------
Name:
Title:
RSVP HOLDINGS LLC
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
--------------------------
Name:
Title:
[SIGNATURE PAGE TO RESTRUCTURING AGREEMENT]
-15-
RECKSON ASSET PARTNERS LLC
By: Reckson Strategic Venture Partners, LLC,
its managing member
By: RSVP Holdings LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
-----------------------
Name:
Title:
UBS WARBURG REAL ESTATE
SECURITIES INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
STRATUM REALTY FUND, L.P.
By: Stratum Realty Company, L.P.,
its general partner
By: Stratum Principals, Inc.,
its general partner
By:
-------------------------------
Name:
Title:
[SIGNATURE PAGE TO RESTRUCTURING AGREEMENT]
-16-
SCHEDULE 1
----------
DEFINED TERMS
-------------
Allocated Accrued
Class A Basic Return - As defined in the Operating Agreement
Allocated Net Adjusted
Capital Contribution - As defined in the Operating Agreement
Business Day - A day other than a Saturday, Sunday or other day
on which commercial banks in New York City are
authorized or required by law to close.
Capital Event Proceeds - As defined in the Operating Agreement
Catskills Platform - The Company's investment in the Concord hotel and
Xxxxxxxxxx'x hotel properties, as well as related
parcels through Melville Catskill, LLC
Class A Basic Return - As defined in the Operating Agreement
Class A Sellers - UBS and Stratum
Class A Units - As defined in the Operating Agreement
Class A Parties - The Class A Sellers and each of their respective
officers, directors and agents
Closing - As defined in Paragraph 2
Closing Date - As defined in Paragraph 4
Closing Documents - The documents annexed hereto as Exhibits A, X-0,
X-0, X-0, X-0, X-0 and D-2
Company - Reckson Strategic Venture Partners, LLC
Company Parties - The Company, Holdings, RAP and each of
their respective members, managing directors and
officers
Consents - All consents, authorizations, variances,
invoices, exemptions, qualifications, filings,
declarations, registrations, approvals, licenses,
certificates or permits from any governmental
authority or other party or entity
Holdings - RSVP Holdings LLC
-17-
Investment - As defined in the Operating Agreement
Medical Platform - The Company's investment in medical office
buildings through Medical Properties of Americas,
LLC and its subsidiaries
Net Investment
Revenue - As defined in the Operating Agreement; provided,
however, that the amount of approximately
$3,000,000 being held by the Company in
connection with the reserves relating to the sale
of the Xxxxxxx County Correctional Facility and
related transfer of operations shall not be
considered Net Investment Revenues
Operating Agreement - As defined in Recital B
Outside Closing Date - As defined in Paragraph 4
Platform - As defined in the Operating Agreement
Purchase Price - As defined in Paragraph 2
Quik-Park Credit - As defined in clause (ii) of Paragraph 3
Quik-Park Platform - The Company's investment in parking facilities
through RSVP Metropolitan Parking, LLC and
Metropolitan Quik Park of South Florida, LLC and
its subsidiaries
RAP - Reckson Asset Partners LLC
Resulting Credit - As defined in Paragraph 6(d)
Stratum - Stratum Realty Fund, L.P.
Subsidiaries - As defined in Paragraph 7(a)(v)
UBS - UBS Warburg Real Estate Securities Inc.
Wilton Platform - The Company's investment in the retail-built-to-
suit business through Wrap I, LLC and its
subsidiaries
-18-
SCHEDULE 7(A)(III)
------------------
CONFLICT DOCUMENTS
------------------
Paragraph 15 of the Payment Guaranty dated as of May 8, 2001 by Reckson
Strategic Venture Partners, LLC to and for the benefit of CIBC, Inc. which
prohibits the transfer or other disposition of, in whole or in part, any assets
of Reckson Strategic Venture Partners, LLC, as set forth on its financial
statement, until the related indebtedness has been fully paid.
-19-
SCHEDULE 7(A)(VI)
-----------------
INDEBTEDNESS
------------
ORIGINAL ORIGINAL ORIGINATION MATURITY DEBT BALANCE
PROPERTY LENDER DEBT BALANCE DATE DATE @ 9/30/02
-------- -------- ------------ ----------- -------- ------------
550 Brickell Associates, LLC Colonial Bank $ 4,800,000 7/28/1999 7/28/2003 $ 4,603,598
Pelican Hotel, LLC Commerce Bank 5,110,000 5/12/2000 7/28/2003 4,986,225
Eagle Garage, LLC Mellon United 2,800,000 4/22/1999 4/22/2004 2,652,644
Freedom Garage, LLC Bank United 3,481,642 8/31/2000 11/15/2002(1) 3,481,642
Boulevard Garage, LLC Bank United 1,303,020 5/18/2000 11/15/2002(1) 1,303,020
Boulevard Garage II, LLC Bank United 862,500 9/15/2000 11/15/2002(1) 862,500
Flamingo Garage, LLC Seller Financed 2,030,000 4/1/1999 4/1/2004 2,030,000
Arena Garage, LLC Seller 354,000 6/29/2000 6/29/2005 354,000
Prime Garage, LLC Mellon United 600,000 4/15/1999 4/22/2004 568,220
Market Garage, LLC Optimum Bank 650,000 1/29/2002 2/1/2017 635,391
Renaissance Garage, LLC Bank United 900,000 12/1/2000 11/15/2002(1) 600,000
Internet Garage, LLC Bank United 713,250 9/28/2001 9/28/2003 731,250
Xxxxx Garage, LLC Bank United 8,887,500 2/15/2000 11/15/2002(1) 8,887,500
----------- -----------
Total $32,491,912 $31,695,990
(1) These mortgages are believed to be in the process of being refinanced or
extended with the existing lender.
-20-
SCHEDULE 7(A)(VII)
------------------
PROPERTIES
----------
MANAGED PROPERTIES
------------------
Project Name Address
------------ -------
QP Florida, LLC Xxxxxxx Avenue
"Municipal Lots" Miami Beach, Florida
QP Florida, LLC 0000 Xxxxxxxx Xxxxxxxxx
"Omni Technical Center" Miami Beach, Florida
LEASED PROPERTIES
Project Name Address
------------ -------
International Garage LLC- 200/300/301 3rd Avenue
"Dupont Lots" Miami, Florida
1458 Ocean Drive, LLC
"Whitehouse Lease" (Valet for 0000 Xxxxx Xxxxx
Xxxxxx Hotels in Miami Beach) Miami, Florida
Washington Garage LLC 000 Xxxxxxxxxx Xxx.
"China Grill" Miami, Florida
REAL ESTATE OWNED
-----------------
Project Name/Legal Entity Address
------------------------- -------
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
"550 Brickell Associates LLC" Miami Florida
Xxxxxxxxx 00 Xxxxx Xxxx 0xx Xx.
"Brickell Corridor LLC" Miami Florida
Xxxxxx Xxxxxxx'x 0000 Xxxxxxxx Xxxx.
"Pelican Hotel LLC" Miami Florida
-21-
000 Xxxxxx Xxxxxx - Budget 000 Xxxxxx Xxxxxx
"Flamingo Garage II LLC" Miami Florida
000 Xxxxx Xxxxx 000 Xxxxx Xxxxx
"100 Ocean Garage LLC" Miami Beach Florida
Post 000 Xxxxxxxx Xxxx and
"Xxxxx Garage LLC" 000 XX 0xx Xxx
Xxxxx Xxxxxxx
Mastellos 0000 XX Xxxxx
"Xxxxxxx Xxxxxx XX Xxxxx Xxxxxxx
Duty Free Portco NE 8th & 9th St
"Seagull Garage LLC" Miami Florida
Henniker 0000 Xxxxxxxx Xxxx.
"Eagle Garage LLC" Miami Florida
Alamo 000-000 Xxxxxxxx Xxxx
"Flamingo Garage LLC" Miami Florida
Jebai 00 XX 0xx Xxxxxx
"Dolphin Brickell LLC" Miami Florida
HowGlow 00-00 XX 00xx Xx.
"Xxxxxxxxx Xxxxxx, XXX" Xxxxx Xxxxxxx
XxXxxxx 000 XX 0xx Xx.
"Freedom Garage, LLC" 127 NE 0xx Xx.
00 XX 0xx Xx.
Ratiner
"Boulevard Garage II, LLC" 00 XX 00xx Xxxxxx
Xxxxxx 000 XX 0xx Xxx.
"Xxxxx Xxxxxx XXX" Xxxxx, Xxxxxxx
Brickell Park SE 9th St & SE Miami
"Brickell Park Garage LLC" Miami Florida
Barbary Coast 0000 XX 0xx Xxx
"Prime Garage LLC" Miami, Florida
"1st Avenue Investments" 000 XX 0xx Xxxxxx
Xxxxxxxxxxx Xxxxxx, XXX Xxxxx, Xxxxxxx
-22-
Xxxxxxx 000 XX 0xx Xxxxxx
"Internet Garage, LLC" Miami, Florida
Xxxxxx 143 & 000 XX 0xx Xxxxxx
"Market Garage, LLC" Miami, Florida
Greek Corner 000 XX 00xx Xxxxxx
"Liberty II Garage, LLC" Miami, Florida
-23-
EXHIBIT A
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST
(RSVP METROPOLITAN PARKING, LLC)
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST made as of
the 29th day of April 2003 by and between RECKSON STRATEGIC VENTURE PARTNERS,
LLC, a Delaware limited liability company ("Assignor"), and FLORIDA PARKING LOT
LLC, a Delaware limited liability company ("Assignee").
W I T N E S S E T H :
WHEREAS, RSVP Metropolitan Parking, LLC ("Metropolitan Parking") is a
Delaware limited liability company (i) formed on July 27, 1999 by the filing of
a Certificate of Formation in the Office of the Secretary of State of Delaware
and (ii) governed by an Operating Agreement dated as of July 28, 1999;
WHEREAS, Assignor owns 100% of the membership interests in Metropolitan
Parking (the "Membership Interest"); and
WHEREAS, pursuant to that certain Restructuring Agreement dated the
date hereof among Assignor, UBS Warburg Real Estate Securities Inc., Stratum
Realty Fund, L.P., Reckson Asset Partners LLC and RSVP Holdings LLC, Assignor
desires to transfer and assign all right, title and interest in and to the
Membership Interest to Assignee.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is agreed as follows:
1. Assignment. Assignor hereby assigns and transfers to Assignee in an
"as is, where is" condition, all of the right, title and interest of Assignor in
and to the Membership Interest, and warrants that the Membership Interest has
not been previously assigned and is free and clear of all liens and
encumbrances.
2. Assumption. Assignee hereby accepts the foregoing assignment and
assumes and agrees to perform the obligations of Assignor as the owner of the
Membership Interest that arise from and after the date hereof.
3. Withdrawal. Assignor hereby withdraws as a member of Metropolitan
Parking.
4. Disclaimer. Assignee acknowledges that:
(a) It has fully investigated Metropolitan Parking and the
interests and assets owned by Metropolitan Parking, whether owned directly or
indirectly, legally, beneficially or otherwise; and
(b) Neither Assignor nor anyone on behalf of Assignor has made
any statements, representations, or warranties of any kind or nature as to the
assets, business or condition of Metropolitan Parking, any of its affiliates or
any properties owned, directly or indirectly, legally, beneficially or otherwise
by Metropolitan Parking or any of its affiliates, including, without limitation,
statements, representations or warranties regarding the revenues, expenses,
profitability or governmental compliance of the parking operations, the
financial or physical condition (including, without limitation, the status of
any indebtedness or governmental compliance) of the properties owned, leased or
operated by Metropolitan Parking or any entity in which Metropolitan Parking has
an interest, or the capital accounts or financial interests of Metropolitan
Parking in any entity in which Metropolitan Parking has any direct or indirect
interest, or any dispute that Metropolitan Parking may have with any of its
joint venture partners.
5. Counterparts. This document may be executed in several counterparts,
and as so executed shall constitute one document, binding on both parties
hereto, even though both parties are not signatories to the original or the same
counterpart.
TO HAVE AND TO HOLD the same unto Assignee and its successors, legal
representatives and assigns forever.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, Assignor and the Assignee have duly executed this
Assignment and Assumption of Membership Interest as of the date first above
written.
ASSIGNOR:
RECKSON STRATEGIC VENTURE
PARTNERS, LLC
By: RSVP Holdings LLC, its managing member
By: RSI Fund Management LLC, its managing
member
By: FrontLine Capital Group, its managing
member
By:
-------------------------------------
Name:
Title:
ASSIGNEE:
FLORIDA PARKING LOT LLC
By: Florida Parking Lot Holdings LLC,
Manager
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE TO RSVP METROPOLITAN PARKING A&A]
EXHIBIT B-1
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST
(RECKSON STRATEGIC VENTURE PARTNERS, LLC)
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST made as of the ___ day
of _____ 2003 between UBS WARBURG REAL ESTATE SECURITIES INC., a Delaware
corporation, ("Assignor") and _____________________ ("Assignee").
W I T N E S S E T H :
WHEREAS, Reckson Strategic Venture Partners, LLC (the "Company") is a
Delaware limited liability company (i) formed on January 23, 1998 by the filing
of a Certificate of Formation in the Office of the Secretary of State of
Delaware and (ii) governed by an Operating Agreement dated as of March 5, 1998,
as amended by the Supplemental Agreement to Operating Agreement dated as of
April 24, 1998 (as amended, the "Operating Agreement");
WHEREAS, Assignor owns a membership interest in the Company (the
"Membership Interest"); and
WHEREAS, pursuant to that certain Restructuring Agreement dated April
29, 2003 (the "Restructuring Agreement") among Assignor, the Company, RSVP
Holdings LLC, Reckson Asset Partners LLC and Stratum Realty Fund, L.P., Assignor
desires to transfer and assign all right, title and interest in and to the
Membership Interest to Assignee.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is agreed as follows:
1. Assignment. Assignor hereby assigns and transfers to Assignee all of
the right, title and interest of Assignor in and to the Membership Interest, and
warrants that the Membership Interest has not been previously assigned and is
free and clear of all liens and encumbrances.
2. Assumption. Assignee hereby accepts the foregoing assignment, and,
subject to the terms and provisions of the Restructuring Agreement, assumes and
agrees to perform the obligations of Assignor as the owner of the Membership
Interest that arise from and after the date hereof.
3. Withdrawal. Assignor hereby withdraws as a member of the Company,
and agrees and confirms that it shall have no further right, title or interest
in or to the Company or any of its Platforms (as such term is defined in the
Operating Agreement) or in or to any monies or properties received by the
Company or any of its Platforms, and that there will be no further obligations
of any kind or nature on the part of the Company, RSVP Holdings LLC, Reckson
Asset Partners LLC or any of their respective members in favor of Assignor
arising from the Company or any of its Platforms.
4. Disclaimer. Assignee acknowledges that:
(a) It has fully investigated the Company and the interests
and assets owned by the Company, whether owned directly or indirectly, legally,
beneficially or otherwise; and
(b) Neither Assignor nor anyone on behalf of Assignor has made
any statements, representations, or warranties of any kind or nature as to the
assets, business or condition of the Company, any of its affiliates or any
properties owned, directly or indirectly, legally, beneficially or otherwise by
the Company or any of its affiliates, including, without limitation, statements,
representations or warranties regarding the revenues, expenses, profitability or
governmental compliance, the financial or physical condition (including, without
limitation, the status of any indebtedness or governmental compliance) of the
properties owned, leased or operated by the Company or any entity in which the
Company has an interest, or the capital accounts or financial interests of the
Company in any entity in which the Company has any direct or indirect interest,
or any dispute that the Company may have with any of its joint venture partners.
5. Counterparts. This document may be executed in several counterparts,
and as so executed shall constitute one document, binding on all the parties
hereto, even though all parties are not signatories to the original or the same
counterpart.
TO HAVE AND TO HOLD the same unto Assignee and its successors, legal
representatives and assigns forever.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, Assignor and the Assignee have duly executed this
Assignment and Assumption of Membership Interest as of the date first above
written.
ASSIGNOR:
UBS WARBURG REAL ESTATE SECURITIES INC.
By:
------------------------------------
By:
------------------------------------
ASSIGNEE:
By:
------------------------------------
[SIGNATURE PAGE TO RSVP A&A]
EXHIBIT B-2
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST
(RECKSON STRATEGIC VENTURE PARTNERS, LLC)
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST made as of the ___ day
of ______ 2003 between STRATUM REALTY FUND, L.P., a Delaware limited partnership
("Assignor") and _____________________ ("Assignee").
W I T N E S S E T H :
WHEREAS, Reckson Strategic Venture Partners, LLC (the "Company") is a
Delaware limited liability company (i) formed on January 23, 1998 by the filing
of a Certificate of Formation in the Office of the Secretary of State of
Delaware and (ii) governed by an Operating Agreement dated as of March 5, 1998,
as amended by the Supplemental Agreement to Operating Agreement dated as of
April 24, 1998 (as amended, the "Operating Agreement");
WHEREAS, Assignor owns a membership interest in the Company (the
"Membership Interest"); and
WHEREAS, pursuant to that certain Restructuring Agreement dated April
29, 2003 (the "Restructuring Agreement") among Assignor, the Company, RSVP
Holdings LLC, Reckson Asset Partners LLC and UBS Warburg Real Estate Securities,
Inc., Assignor desires to transfer and assign all right, title and interest in
and to the Membership Interest to Assignee.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is agreed as follows:
1. Assignment. Assignor hereby assigns and transfers to Assignee all of
the right, title and interest of Assignor in and to the Membership Interest, and
warrants that the Membership Interest has not been previously assigned and is
free and clear of all liens and encumbrances.
2. Assumption. Assignee hereby accepts the foregoing assignment, and,
subject to the terms and provisions of the Restructuring Agreement, assumes and
agrees to perform the obligations of Assignor as the owner of the Membership
Interest that arise from and after the date hereof.
3. Withdrawal. Assignor hereby withdraws as a member of the Company,
and agrees and confirms that it shall have no further right, title or interest
in or to the Company or any of its Platforms (as such term is defined in the
Operating Agreement) or in or to any monies or properties received by the
Company or any of its Platforms, and that there will be no further obligations
of any kind or nature on the part of the Company, RSVP Holdings LLC, Reckson
Asset Partners LLC or any of their respective members in favor of Assignor
arising from the Company or any of its Platforms.
4. Disclaimer. Assignee acknowledges that:
(a) It has fully investigated the Company and the interests
and assets owned by the Company, whether owned directly or indirectly, legally,
beneficially or otherwise; and
(b) Neither Assignor nor anyone on behalf of Assignor has made
any statements, representations, or warranties of any kind or nature as to the
assets, business or condition of the Company, any of its affiliates or any
properties owned, directly or indirectly, legally, beneficially or otherwise by
the Company or any of its affiliates, including, without limitation, statements,
representations or warranties regarding the revenues, expenses, profitability or
governmental compliance, the financial or physical condition (including, without
limitation, the status of any indebtedness or governmental compliance) of the
properties owned, leased or operated by the Company or any entity in which the
Company has an interest, or the capital accounts or financial interests of the
Company in any entity in which the Company has any direct or indirect interest,
or any dispute that the Company may have with any of its joint venture partners.
5. Counterparts. This document may be executed in several counterparts,
and as so executed shall constitute one document, binding on all the parties
hereto, even though all parties are not signatories to the original or the same
counterpart.
TO HAVE AND TO HOLD the same unto Assignee and its successors, legal
representatives and assigns forever.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, Assignor and the Assignee have duly executed this
Assignment and Assumption of Membership Interest as of the date first above
written.
ASSIGNOR:
STRATUM REALTY FUND, L.P.
By: Stratum Realty Company, L.P.,
its general partner
By: Stratum Principals Inc., its general partner
By:
------------------------------
Name:
Title:
ASSIGNEE:
By:
----------------------------------
[SIGNATURE PAGE TO RSVP A&A]
EXHIBIT C-1(A)
RELEASE OF COMPANY PARTIES (OTHER THAN XXXX XXXXXX)
LIMITED RELEASE OF CLAIMS
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, except
as provided in clauses (i) through (v) below, STRATUM REALTY COMPANY, L.P., a
Delaware limited partnership, individually and on behalf of STRATUM REALTY FUND,
L.P., a Delaware limited partnership ("Stratum Fund"), and UBS WARBURG REAL
ESTATE SECURITIES INC., a Delaware corporation ("UBSWRES"), collectively, as
RELEASORS, in consideration of the sum of TEN DOLLARS ($10) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, received from RECKSON STRATEGIC VENTURE PARTNERS, LLC, a Delaware
limited liability company ("RSVP"), RSVP HOLDINGS LLC, a Delaware limited
liability company, RECKSON ASSET PARTNERS LLC, a Delaware limited liability
company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited liability company,
FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a RECKSON SERVICE
INDUSTRIES, INC.), NEW WORLD REALTY, LLC, a Delaware limited liability company,
XXXXXX X. XXXXXXXX, an individual, XXXXXX XXXXXXX, an individual, XXXXX XXXXXXX,
an individual, XXXXX XXXXXXX, an individual, XXXXXXXX XXXXXXX, an individual,
XXXXXXX XXXXXX, an individual, XXXXX XXXXXXX, an individual, and XXXXX XXXXXXX,
an individual, collectively as RELEASEES, hereby release and discharge the
RELEASEES and each of the RELEASEES' respective parents, subsidiaries,
affiliated or otherwise related parties (as regards each of the RELEASEES that
is not an individual), and each present and past general and limited partner,
member, manager, officer, director, shareholder, employee, agent, attorney,
heir, successor and assign of any of the foregoing from all actions, causes of
action, suits, regulatory proceedings, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, rights, warranties, and demands whatsoever, in law, equity
or otherwise (collectively, "Claims"), which any of the RELEASORS ever had, now
have or may have against any of the RELEASEES arising from or in connection with
RSVP or RAP, whether known or unknown, suspected or unsuspected, liquidated or
contingent, and whether or not concealed or hidden, for, upon, or by reason of
any act, event, occurrence, matter, cause or thing whatsoever from the beginning
of the world to the day of the date of this RELEASE; provided, however, that
this RELEASE shall not be deemed or construed to be a release or waiver of any
of the rights or obligations of any of the RELEASORS under, pursuant to or
arising from (i) that certain Restructuring Agreement dated April 29, 2003 (the
"Restructuring Agreement") among UBSWRES, Stratum Fund, RSVP, RSVP Holdings LLC
and RAP; (ii) any of the documents executed and delivered pursuant to the
Restructuring Agreement; (iii) any direct or indirect transactions between any
of the RELEASORS and any of the RELEASEES which are unrelated to RSVP or RAP;
(iv) any Claims involving fraud or (v) any Claims by a third party relating to
or arising from any of the matters covered or contemplated by this RELEASE.
This RELEASE may not be changed orally.
It is understood, acknowledged and agreed by the RELEASORS that the
RELEASEES dispute and deny any liability whatsoever and that the settlement
evidenced by this Agreement is not and shall not be construed as any admission
of liability of any of the RELEASEES.
This RELEASE shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without giving effect to the
choice-of-law provisions thereof.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, the RELEASORS have caused this RELEASE to be
executed on April 29, 2003.
UBS WARBURG REAL ESTATE
SECURITIES INC.
By:
----------------------------
By:
----------------------------
STRATUM REALTY FUND, L.P.
By: Stratum Realty Company, L.P.,
its general partner
By: Stratum Principals, Inc.,
its general partner
By:
----------------------------
STRATUM REALTY COMPANY, L.P.
By: Stratum Principals, Inc.,
its general partner
By:
----------------------------
[SIGNATURE PAGE TO RELEASE C-1(A)]
CORPORATE ACKNOWLEDGMENT
------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who, being by me duly
sworn, did depose and say that he/she is the of , the corporation which executed
the foregoing Release, and he/she subscribed, swore to and acknowledged the same
in his/her capacity as such officer as the authorized and binding act and deed
of said corporation.
[SEAL]
-------------------------------
Notary Public
PARTNERSHIP ACKNOWLEDGMENT
--------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared____________________________, to me
known, who, being by me duly sworn, did depose and say that he is
__________________ of_______________________, the partnership which executed the
foregoing Release, and he he/she subscribed, swore to and acknowledged the same
in his/her capacity as such _______________ as the authorized and binding act
and deed of said partnership.
[SEAL]
-------------------------------
Notary Public
[ACKNOWLEDGEMENT PAGE TO RELEASE C-1(A)]
EXHIBIT C-1(B)
RELEASE OF COMPANY PARTIES (OTHER THAN XXXX XXXXXX)
LIMITED RELEASE OF CLAIMS
-------------------------
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, except
as provided in clauses (i) through (v) below, STRATUM REALTY COMPANY, L.P., a
Delaware limited partnership, individually and on behalf of STRATUM REALTY FUND,
L.P., a Delaware limited partnership ("Stratum Fund"), and UBS WARBURG REAL
ESTATE SECURITIES INC., a Delaware corporation ("UBSWRES"), collectively, as
RELEASORS, in consideration of the sum of TEN DOLLARS ($10) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, received from RECKSON STRATEGIC VENTURE PARTNERS, LLC, a Delaware
limited liability company ("RSVP"), RSVP HOLDINGS LLC, a Delaware limited
liability company, RECKSON ASSET PARTNERS LLC, a Delaware limited liability
company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited liability company,
FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a RECKSON SERVICE
INDUSTRIES, INC.), NEW WORLD REALTY, LLC, a Delaware limited liability company,
XXXXXX X. XXXXXXXX, an individual, XXXXXX XXXXXXX, an individual, XXXXX XXXXXXX,
an individual, XXXXX XXXXXXX, an individual, XXXXXXXX XXXXXXX, an individual,
XXXXXXX XXXXXX, an individual, XXXXX XXXXXXX, an individual, and XXXXX XXXXXXX,
an individual, collectively as RELEASEES, hereby release and discharge the
RELEASEES and each of the RELEASEES' respective parents, subsidiaries,
affiliated or otherwise related parties (as regards each of the RELEASEES that
is not an individual), and each present and past general and limited partner,
member, manager, officer, director, shareholder, employee, agent, attorney,
heir, successor and assign of any of the foregoing from all actions, causes of
action, suits, regulatory proceedings, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, rights, warranties, and demands whatsoever, in law, equity
or otherwise (collectively, "Claims"), which any of the RELEASORS ever had, now
have or may have against any of the RELEASEES arising from or in connection with
RSVP or RAP, whether known or unknown, suspected or unsuspected, liquidated or
contingent, and whether or not concealed or hidden, for, upon, or by reason of
any act, event, occurrence, matter, cause or thing whatsoever from the beginning
of the world to the day of the date of this RELEASE; provided, however, that
this RELEASE shall not be deemed or construed to be a release or waiver of any
of the rights or obligations of any of the RELEASORS under, pursuant to or
arising from (i) that certain Restructuring Agreement dated April 29, 2003 (the
"Restructuring Agreement") among UBSWRES, Stratum Fund, RSVP, RSVP Holdings LLC
and RAP; (ii) any of the documents executed and delivered pursuant to the
Restructuring Agreement; (iii) any direct or indirect transactions between any
of the RELEASORS and any of the RELEASEES which are unrelated to RSVP or RAP;
(iv) any Claims involving fraud; (v) any Claims by a third party relating to or
arising from any of the matters covered or contemplated by this RELEASE or (vi)
Claims based on any new act by any RELEASEE from on or after April 30, 2003
through the Closing Date (as such term is defined in the Restructuring
Agreement) which such Claims are set forth on Schedule A annexed to this
RELEASE.
This RELEASE may not be changed orally.
It is understood, acknowledged and agreed by the RELEASORS that the
RELEASEES dispute and deny any liability whatsoever and that the settlement
evidenced by this Agreement is not and shall not be construed as any admission
of liability of any of the RELEASEES.
This RELEASE shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without giving effect to the
choice-of-law provisions thereof.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, the RELEASORS have caused this RELEASE to be
executed on Closing Date (as such term is defined in the Restructuring
Agreement).
UBS WARBURG REAL ESTATE
SECURITIES INC.
By:
----------------------------
By:
----------------------------
STRATUM REALTY FUND, L.P.
By: Stratum Realty Company, L.P.,
its general partner
By: Stratum Principals, Inc.,
its general partner
By:
----------------------------
STRATUM REALTY COMPANY, L.P.
By: Stratum Principals, Inc.,
its general partner
By:
----------------------------
[SIGNATURE PAGE TO RELEASE C-1(B)]
SCHEDULE A
None.
CORPORATE ACKNOWLEDGMENT
------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who, being by me duly
sworn, did depose and say that he/she is the of , the corporation which executed
the foregoing Release, and he/she subscribed, swore to and acknowledged the same
in his/her capacity as such officer as the authorized and binding act and deed
of said corporation.
[SEAL]
--------------------------------
Notary Public
PARTNERSHIP ACKNOWLEDGMENT
--------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared____________________________, to me
known, who, being by me duly sworn, did depose and say that he is
__________________ of_______________________, the partnership which executed the
foregoing Release, and he he/she subscribed, swore to and acknowledged the same
in his/her capacity as such _______________ as the authorized and binding act
and deed of said partnership.
[SEAL]
--------------------------------
Notary Public
[ACKNOWLEDGEMENT PAGE TO RELEASE C-1(B)]
EXHIBIT C-2(A)
RELEASE OF XXXX XXXXXX
LIMITED RELEASE OF CLAIMS
-------------------------
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, except
as provided in clauses (i) through (iv) below, STRATUM REALTY COMPANY, L.P., a
Delaware limited partnership, individually and on behalf of STRATUM REALTY FUND,
L.P., a Delaware limited partnership ("Stratum Fund"), and UBS WARBURG REAL
ESTATE SECURITIES INC., a Delaware corporation ("UBSWRES"), collectively, as
RELEASORS, in consideration of the sum of TEN DOLLARS ($10) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, received from XXXX XXXXXX, an individual, hereby release and
discharge XXXX XXXXXX and each agent, attorney, heir, successor and assign of
XXXX XXXXXX from all actions, causes of action, suits, regulatory proceedings,
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims, rights, warranties,
and demands whatsoever, in law, equity or otherwise (collectively, "Claims"),
which any of the RELEASORS ever had, now have or may have against XXXX XXXXXX
arising from or in connection with RECKSON STRATEGIC VENTURE PARTNERS, LLC, a
Delaware limited liability company ("RSVP"), or RECKSON ASSET PARTNERS LLC, a
Delaware limited liability company ("RAP"), whether known or unknown, suspected
or unsuspected, liquidated or contingent, and whether or not concealed or
hidden, for, upon, or by reason of any act, event, occurrence, matter, cause or
thing whatsoever from the beginning of the world to the day of the date of this
RELEASE; provided, however, that this RELEASE shall not be deemed or construed
to be a release or waiver of any of the rights or obligations of RELEASORS
under, pursuant to or arising from (i) that certain Restructuring Agreement
dated April 29, 2003 (the "Restructuring Agreement") among UBSWRES, Stratum
Fund, RSVP, RSVP Holdings LLC and RAP; (ii) any of the documents executed and
delivered pursuant to the Restructuring Agreement; (iii) any Claims involving
fraud; (iv) any Claims by a third party relating to or arising from any of the
matters covered or contemplated by this RELEASE or (v) Claims relating to XXXX
XXXXXX'X ownership of a (1) 33.33% equity interest in BTL Capital Corp. II, (2)
28% equity interest in BTL Capital Partners I, LP and (3) 1.7% equity interest
in SRF Management Partners, L.P.
This RELEASE may not be changed orally.
It is understood, acknowledged and agreed by the RELEASORS that XXXX
XXXXXX disputes and denies any liability whatsoever and that the settlement
evidenced by this Agreement is not and shall not be construed as any admission
of liability by XXXX XXXXXX.
This RELEASE shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without giving effect to the
choice-of-law provisions thereof.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, the RELEASORS have caused this RELEASE to be
executed on April 29, 2003.
UBS WARBURG REAL ESTATE
SECURITIES INC.
By:
----------------------------
By:
----------------------------
STRATUM REALTY FUND, L.P.
By: Stratum Realty Company, L.P.,
its general partner
By: Stratum Principals, Inc.,
its general partner
By:
----------------------------
STRATUM REALTY COMPANY, L.P.
By: Stratum Principals, Inc.,
its general partner
By:
----------------------------
[SIGNATURE PAGE TO RELEASE C-2(A)]
CORPORATE ACKNOWLEDGMENT
------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who, being by me duly
sworn, did depose and say that he/she is the of , the corporation which executed
the foregoing Release, and he/she subscribed, swore to and acknowledged the same
in his/her capacity as such officer as the authorized and binding act and deed
of said corporation.
[SEAL]
--------------------------------
Notary Public
PARTNERSHIP ACKNOWLEDGMENT
--------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared____________________________, to me
known, who, being by me duly sworn, did depose and say that he is
__________________ of_______________________, the partnership which executed the
foregoing Release, and he he/she subscribed, swore to and acknowledged the same
in his/her capacity as such _______________ as the authorized and binding act
and deed of said partnership.
[SEAL]
--------------------------------
Notary Public
[ACKNOWLEDGEMENT PAGE TO RELEASE C-2(A)]
EXHIBIT C-2(B)
RELEASE OF XXXX XXXXXX
LIMITED RELEASE OF CLAIMS
-------------------------
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, except
as provided in clauses (i) through (iv) below, STRATUM REALTY COMPANY, L.P., a
Delaware limited partnership, individually and on behalf of STRATUM REALTY FUND,
L.P., a Delaware limited partnership ("Stratum Fund"), and UBS WARBURG REAL
ESTATE SECURITIES INC., a Delaware corporation ("UBSWRES"), collectively, as
RELEASORS, in consideration of the sum of TEN DOLLARS ($10) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, received from XXXX XXXXXX, an individual, hereby release and
discharge XXXX XXXXXX and each agent, attorney, heir, successor and assign of
XXXX XXXXXX from all actions, causes of action, suits, regulatory proceedings,
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims, rights, warranties,
and demands whatsoever, in law, equity or otherwise (collectively, "Claims"),
which any of the RELEASORS ever had, now have or may have against XXXX XXXXXX
arising from or in connection with RECKSON STRATEGIC VENTURE PARTNERS, LLC, a
Delaware limited liability company ("RSVP"), or RECKSON ASSET PARTNERS LLC, a
Delaware limited liability company ("RAP"), whether known or unknown, suspected
or unsuspected, liquidated or contingent, and whether or not concealed or
hidden, for, upon, or by reason of any act, event, occurrence, matter, cause or
thing whatsoever from the beginning of the world to the day of the date of this
RELEASE; provided, however, that this RELEASE shall not be deemed or construed
to be a release or waiver of any of the rights or obligations of RELEASORS
under, pursuant to or arising from (i) that certain Restructuring Agreement
dated April 29, 2003 (the "Restructuring Agreement") among UBSWRES, Stratum
Fund, RSVP, RSVP Holdings LLC and RAP; (ii) any of the documents executed and
delivered pursuant to the Restructuring Agreement; (iii) any Claims involving
fraud; (iv) any Claims by a third party relating to or arising from any of the
matters covered or contemplated by this RELEASE; (v) Claims relating to XXXX
XXXXXX'X ownership of a (1) 33.33% equity interest in BTL Capital Corp. II, (2)
28% equity interest in BTL Capital Partners I, LP and (3) 1.7% equity interest
in SRF Management Partners, L.P. and (vi) Claims based on any new act by XXXX
XXXXXX from on or after April 30, 2003 through the Closing Date (as such term is
defined in the Restructuring Agreement) which such Claims are set forth on
Schedule A annexed to this RELEASE.
This RELEASE may not be changed orally.
It is understood, acknowledged and agreed by the RELEASORS that XXXX
XXXXXX disputes and denies any liability whatsoever and that the settlement
evidenced by this Agreement is not and shall not be construed as any admission
of liability by XXXX XXXXXX.
This RELEASE shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without giving effect to the
choice-of-law provisions thereof.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, the RELEASORS have caused this RELEASE to be
executed on the Closing Date (as such term is defined in the Restructuring
Agreement).
UBS WARBURG REAL ESTATE
SECURITIES INC.
By:
----------------------------
By:
----------------------------
STRATUM REALTY FUND, L.P.
By: Stratum Realty Company, L.P.,
its general partner
By: Stratum Principals, Inc.,
its general partner
By:
----------------------------
STRATUM REALTY COMPANY, L.P.
By: Stratum Principals, Inc.,
its general partner
By:
----------------------------
[SIGNATURE PAGE TO RELEASE C-2(B)]
SCHEDULE A
None.
CORPORATE ACKNOWLEDGMENT
------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who, being by me duly
sworn, did depose and say that he/she is the of , the corporation which executed
the foregoing Release, and he/she subscribed, swore to and acknowledged the same
in his/her capacity as such officer as the authorized and binding act and deed
of said corporation.
[SEAL]
--------------------------------
Notary Public
PARTNERSHIP ACKNOWLEDGMENT
--------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared____________________________, to me
known, who, being by me duly sworn, did depose and say that he is
__________________ of_______________________, the partnership which executed the
foregoing Release, and he he/she subscribed, swore to and acknowledged the same
in his/her capacity as such _______________ as the authorized and binding act
and deed of said partnership.
[SEAL]
--------------------------------
Notary Public
[ACKNOWLEDGMENT PAGE TO RELEASE C-2(B)]
EXHIBIT C-3
RELEASE OF COMPANY PARTIES BY QUIK PARK PARTIES
LIMITED RELEASE OF CLAIMS
-------------------------
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, except
as provided in clauses (i) through (iii) below, METROPOLITAN QUIK PARK OF SOUTH
FLORIDA, LLC, a Delaware limited liability company ("Quik Park South Florida"),
M & E HOLDINGS LLC, a Delaware limited liability company ("M & E"), GULFSTREAM
MANAGEMENT, LLC, a Delaware limited liability company, XXXXX X. XXXXXX, an
individual ("Xxxxxx"), XXXXXX XXXXXX, an individual, and XXXXXXXX XXXXXX, an
individual, collectively, as RELEASORS, in consideration of the sum of TEN
DOLLARS ($10) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, received from RECKSON STRATEGIC
VENTURE PARTNERS, LLC, a Delaware limited liability company ("RSVP"), RSVP
HOLDINGS LLC, a Delaware limited liability company, RECKSON ASSET PARTNERS LLC,
a Delaware limited liability company ("RAP"), RSI FUND MANAGEMENT LLC, a
Delaware limited liability company, FRONTLINE CAPITAL GROUP, a Delaware
corporation (f/k/a RECKSON SERVICE INDUSTRIES, INC.), NEW WORLD REALTY, LLC, a
Delaware limited liability company, RSVP METROPOLITAN PARKING, LLC, a Delaware
limited liability company ("RSVP Parking"), XXXXXX X. XXXXXXXX, an individual,
XXXXXX XXXXXXX, an individual, XXXXX XXXXXXX, an individual, XXXXX XXXXXXX, an
individual, XXXXXXXX XXXXXXX, an individual, XXXXXXX XXXXXX, an individual, XXXX
XXXXXX, an individual, XXXXX XXXXXXX, an individual, and XXXXX XXXXXXX, an
individual, collectively as RELEASEES, hereby release and discharge the
RELEASEES and each of the RELEASEES' respective parents, subsidiaries,
affiliated or otherwise related parties (as regards each of the RELEASEES that
is not an individual), and each present and past general and limited partner,
member, manager, officer, director, shareholder, employee, agent, attorney,
heir, successor and assign of any of the foregoing from all actions, causes of
action, suits, regulatory proceedings, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, rights, warranties, and demands whatsoever, in law, equity
or otherwise (collectively, "Claims"), which any of the RELEASORS ever had, now
have or may have against any of the RELEASEES arising from or in connection with
the ownership or operations of Quik Park South Florida and entities under the
control of Quik Park South Florida, whether known or unknown, suspected or
unsuspected, liquidated or contingent, and whether or not concealed or hidden,
for, upon, or by reason of any act, event, occurrence, matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
RELEASE; provided, however, that this RELEASE shall not be deemed or construed
to be a release or waiver of any of the rights or claims of any of the RELEASORS
or any of the obligations of any of the RELEASEES under, pursuant to or arising
from (i) any direct or indirect transactions between any of the RELEASORS and
any of the RELEASEES which are unrelated to the ownership or operations of Quik
Park South Florida and entities under the control of Quik Park South Florida;
(ii) any Claims involving fraud or (iii) with respect to RSVP Parking only, that
certain letter agreement dated the date hereof among Xxxxxx, M & E and UBS
Warburg Real Estate Securities Inc., a Delaware corporation.
This RELEASE may not be changed orally.
It is understood, acknowledged and agreed by the RELEASORS that the
RELEASEES dispute and deny any liability whatsoever and that the settlement
evidenced by this Agreement is not and shall not be construed as any admission
of liability of any of the RELEASEES.
This RELEASE shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without giving effect to the
choice-of-law provisions thereof.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, the RELEASORS have caused this RELEASE to be
executed on April 29, 2003.
METROPOLITAN QUIK PARK OF SOUTH
FLORIDA, LLC
By:
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
By:
----------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
M & E HOLDINGS LLC
By:
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Manager
GULFSTREAM MANAGEMENT, LLC
By:
----------------------------
Name:
Title:
---------------------------------
XXXXX X. XXXXXX
---------------------------------
XXXXXX XXXXXX
---------------------------------
XXXXXXXX XXXXXX
[SIGNATURE PAGE TO RELEASE C-3]
LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
----------------------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who, being by me duly
sworn, did depose and say that he/she is the of , the limited liability company
which executed the foregoing Release, and he/she subscribed, swore to and
acknowledged the same in his/her capacity as such __________ as the authorized
and binding act and deed of said limited liability company.
[SEAL]
--------------------------------
Notary Public
INDIVIDUAL ACKNOWLEDGMENT
-------------------------
STATE OF: )
) ss.:
COUNTY OF: )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who subscribed, swore
to and acknowledged the foregoing Release.
[SEAL]
--------------------------------
Notary Public
[ACKNOWLEDGMENT PAGE TO RELEASE C-3]
EXHIBIT D-1(A)
RELEASE OF CLASS A SELLERS
LIMITED RELEASE OF CLAIMS
-------------------------
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, except
as provided in clauses (i) through (v) below, RECKSON STRATEGIC VENTURE
PARTNERS, LLC, a Delaware limited liability company ("RSVP"), RSVP HOLDINGS LLC,
a Delaware limited liability company, RECKSON ASSET PARTNERS LLC, a Delaware
limited liability company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited
liability company, FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a
RECKSON SERVICE INDUSTRIES, INC.), acting pursuant to a motion filed in its
bankruptcy case, which was approved by an order of the United States Bankruptcy
Court for the Southern District of New York dated March 31, 2003, NEW WORLD
REALTY, LLC, a Delaware limited liability company, XXXXXX X. XXXXXXXX, an
individual, XXXXXX XXXXXXX, an individual, XXXXX XXXXXXX, an individual, XXXXX
XXXXXXX, an individual, XXXXXXXX XXXXXXX, an individual, XXXXXXX XXXXXX, an
individual, XXXXX XXXXXXX, an individual, and XXXXX XXXXXXX, an individual,
collectively, as RELEASORS, in consideration of the sum of TEN DOLLARS ($10) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, received from UBS WARBURG REAL ESTATE SECURITIES INC., a
Delaware corporation, STRATUM REALTY COMPANY, L.P., a Delaware limited
partnership, and STRATUM REALTY FUND, L.P., a Delaware limited partnership,
collectively as RELEASEES, hereby release and discharge the RELEASEES and each
of the RELEASEES' respective parents, subsidiaries, affiliated or otherwise
related parties (as regards each of the RELEASEES that is not an individual),
and each present and past general and limited partner, member, manager, officer,
director, shareholder, employee, agent, attorney, heir, successor and assign of
any of the foregoing from all actions, causes of action, suits, regulatory
proceedings, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, rights,
warranties, and demands whatsoever, in law, equity or otherwise (collectively,
"Claims"), which any of the RELEASORS ever had, now have or may have against any
of the RELEASEES arising from or in connection with RSVP or RAP, whether known
or unknown, suspected or unsuspected, liquidated or contingent, and whether or
not concealed or hidden, for, upon, or by reason of any act, event, occurrence,
matter, cause or thing whatsoever from the beginning of the world to the day of
the date of this RELEASE; provided, however, that this RELEASE shall not be
deemed or construed to be a release or waiver of any of the rights or
obligations of any of the RELEASORS under, pursuant to or arising from (i) that
certain Restructuring Agreement dated April 29, 2003 (the "Restructuring
Agreement") among UBS Warburg Real Estate Securities Inc., Stratum Realty Fund,
L.P., RSVP, RSVP Holdings LLC and RAP; (ii) any of the documents executed and
delivered pursuant to the Restructuring Agreement; (iii) any direct or indirect
transactions between any of the RELEASORS and any of the RELEASEES which are
unrelated to RSVP or RAP; (iv) any Claims involving fraud or (v) any Claims by a
third party relating to or arising from any of the matters covered or
contemplated by this RELEASE.
This RELEASE may not be changed orally.
It is understood, acknowledged and agreed by the RELEASORS that the
RELEASEES dispute and deny any liability whatsoever and that the settlement
evidenced by this Agreement is not and shall not be construed as any admission
of liability of any of the RELEASEES.
This RELEASE shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without giving effect to the
choice-of-law provisions thereof.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, the RELEASORS have caused this RELEASE to be
executed on _________, 2003.
RSI FUND MANAGEMENT LLC
By: FrontLine Capital Group, its managing
member
By:
--------------------------------
FRONTLINE CAPITAL GROUP
By:
------------------------------------
NEW WORLD REALTY, LLC
By:
------------------------------------
RECKSON STRATEGIC
VENTURE PARTNERS, LLC
By: RSVP Holdings LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
------------------------
Name:
Title:
[SIGNATURE PAGE TO RELEASE D-1(A)]
RSVP HOLDINGS LLC
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
-------------------------------
Name:
Title:
RECKSON ASSET PARTNERS LLC
By: Reckson Strategic Venture Partners, LLC,
its managing member
By: RSVP Holdings, LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
-----------------------
Name:
Title:
-------------------------------------------
XXXXXX X. XXXXXXXX
-------------------------------------------
XXXXXX XXXXXXX
[SIGNATURE PAGE TO RELEASE D-1(A)]
-------------------------------------------
XXXXX XXXXXXX
-------------------------------------------
XXXXX XXXXXXX
-------------------------------------------
XXXXXXXX XXXXXXX
-------------------------------------------
XXXXXXX XXXXXX
-------------------------------------------
XXXXX XXXXXXX
-------------------------------------------
XXXXX XXXXXXX
[SIGNATURE PAGE TO RELEASE D-1(A)]
LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
----------------------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of _______ 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who, being by me duly
sworn, did depose and say that he/she is the of , the limited liability company
which executed the foregoing Release, and he/she subscribed, swore to and
acknowledged the same in his/her capacity as such __________ as the authorized
and binding act and deed of said limited liability company.
[SEAL]
-------------------------------
Notary Public
CORPORATE ACKNOWLEDGMENT
------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of _______ 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who, being by me duly
sworn, did depose and say that he/she is the of , the corporation which executed
the foregoing Release, and he/she subscribed, swore to and acknowledged the same
in his/her capacity as such officer as the authorized and binding act and deed
of said corporation.
[SEAL]
-------------------------------
Notary Public
[ACKNOWLEDGMENT PAGE TO RELEASE D-1(A)]
INDIVIDUAL ACKNOWLEDGMENT
-------------------------
STATE OF: )
) ss.:
COUNTY OF: )
On this day of _______ 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who subscribed, swore
to and acknowledged the foregoing Release.
[SEAL]
--------------------------------
Notary Public
[ACKNOWLEDGMENT PAGE TO RELEASE D-1(A)]
EXHIBIT D-1(B)
RELEASE OF CLASS A SELLERS
LIMITED RELEASE OF CLAIMS
-------------------------
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, except
as provided in clauses (i) through (v) below, RECKSON STRATEGIC VENTURE
PARTNERS, LLC, a Delaware limited liability company ("RSVP"), RSVP HOLDINGS LLC,
a Delaware limited liability company, RECKSON ASSET PARTNERS LLC, a Delaware
limited liability company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited
liability company, FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a
RECKSON SERVICE INDUSTRIES, INC.), acting pursuant to a motion filed in its
bankruptcy case, which was approved by an order of the United States Bankruptcy
Court for the Southern District of New York dated March 31, 2003, NEW WORLD
REALTY, LLC, a Delaware limited liability company, XXXXXX X. XXXXXXXX, an
individual, XXXXXX XXXXXXX, an individual, XXXXX XXXXXXX, an individual, XXXXX
XXXXXXX, an individual, XXXXXXXX XXXXXXX, an individual, XXXXXXX XXXXXX, an
individual, XXXXX XXXXXXX, an individual, and XXXXX XXXXXXX, an individual,
collectively, as RELEASORS, in consideration of the sum of TEN DOLLARS ($10) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, received from UBS WARBURG REAL ESTATE SECURITIES INC., a
Delaware corporation, STRATUM REALTY COMPANY, L.P., a Delaware limited
partnership, and STRATUM REALTY FUND, L.P., a Delaware limited partnership,
collectively as RELEASEES, hereby release and discharge the RELEASEES and each
of the RELEASEES' respective parents, subsidiaries, affiliated or otherwise
related parties (as regards each of the RELEASEES that is not an individual),
and each present and past general and limited partner, member, manager, officer,
director, shareholder, employee, agent, attorney, heir, successor and assign of
any of the foregoing from all actions, causes of action, suits, regulatory
proceedings, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, rights,
warranties, and demands whatsoever, in law, equity or otherwise (collectively,
"Claims"), which any of the RELEASORS ever had, now have or may have against any
of the RELEASEES arising from or in connection with RSVP or RAP, whether known
or unknown, suspected or unsuspected, liquidated or contingent, and whether or
not concealed or hidden, for, upon, or by reason of any act, event, occurrence,
matter, cause or thing whatsoever from the beginning of the world to the day of
the date of this RELEASE; provided, however, that this RELEASE shall not be
deemed or construed to be a release or waiver of any of the rights or
obligations of any of the RELEASORS under, pursuant to or arising from (i) that
certain Restructuring Agreement dated April 29, 2003 (the "Restructuring
Agreement") among UBS Warburg Real Estate Securities Inc., Stratum Realty Fund,
L.P., RSVP, RSVP Holdings LLC and RAP; (ii) any of the documents executed and
delivered pursuant to the Restructuring Agreement; (iii) any direct or indirect
transactions between any of the RELEASORS and any of the RELEASEES which are
unrelated to RSVP or RAP; (iv) any Claims involving fraud; (v) any Claims by a
third party relating to or arising from any of the matters covered or
contemplated by this RELEASE or (vi) Claims based on any new act by any RELEASEE
from on or after April 30, 2003 through the Closing Date (as such term is
defined in the Restructuring Agreement) which such Claims are set forth on
Schedule A annexed to this RELEASE.
This RELEASE may not be changed orally.
It is understood, acknowledged and agreed by the RELEASORS that the
RELEASEES dispute and deny any liability whatsoever and that the settlement
evidenced by this Agreement is not and shall not be construed as any admission
of liability of any of the RELEASEES.
This RELEASE shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without giving effect to the
choice-of-law provisions thereof.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, the RELEASORS have caused this RELEASE to be
executed on the Closing Date (as such term is defined in the Restructuring
Agreement).
RSI FUND MANAGEMENT LLC
By: FrontLine Capital Group, its managing
member
By:
--------------------------------
FRONTLINE CAPITAL GROUP
By:
------------------------------------
NEW WORLD REALTY, LLC
By:
------------------------------------
RECKSON STRATEGIC
VENTURE PARTNERS, LLC
By: RSVP Holdings LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
------------------------
Name:
Title:
[SIGNATURE PAGE TO RELEASE D-1(B)]
RSVP HOLDINGS LLC
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
------------------------------
Name:
Title:
RECKSON ASSET PARTNERS LLC
By: Reckson Strategic Venture Partners, LLC,
its managing member
By: RSVP Holdings, LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
-----------------------
Name:
Title:
-------------------------------------------
XXXXXX X. XXXXXXXX
-------------------------------------------
XXXXXX XXXXXXX
[SIGNATURE PAGE TO RELEASE D-1(B)]
-------------------------------------------
XXXXX XXXXXXX
-------------------------------------------
XXXXX XXXXXXX
-------------------------------------------
XXXXXXXX XXXXXXX
-------------------------------------------
XXXXXXX XXXXXX
-------------------------------------------
XXXXX XXXXXXX
-------------------------------------------
XXXXX XXXXXXX
[SIGNATURE PAGE TO RELEASE D-1(B)]
SCHEDULE A
None.
LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
----------------------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of _______ 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who, being by me duly
sworn, did depose and say that he/she is the of , the limited liability company
which executed the foregoing Release, and he/she subscribed, swore to and
acknowledged the same in his/her capacity as such __________ as the authorized
and binding act and deed of said limited liability company.
[SEAL]
--------------------------------
Notary Public
CORPORATE ACKNOWLEDGMENT
------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of _______ 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who, being by me duly
sworn, did depose and say that he/she is the of , the corporation which executed
the foregoing Release, and he/she subscribed, swore to and acknowledged the same
in his/her capacity as such officer as the authorized and binding act and deed
of said corporation.
[SEAL]
--------------------------------
Notary Public
[ACKNOWLEDGMENT PAGE TO RELEASE D-1(B)]
INDIVIDUAL ACKNOWLEDGMENT
-------------------------
STATE OF: )
) ss.:
COUNTY OF: )
On this day of _______ 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who subscribed, swore
to and acknowledged the foregoing Release.
[SEAL]
--------------------------------
Notary Public
[ACKNOWLEDGMENT PAGE TO RELEASE D-1(B)]
EXHIBIT D-2(A)
RELEASE OF CLASS A SELLERS
LIMITED RELEASE OF CLAIMS
-------------------------
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, except
as provided in clauses (i) through (v) below, XXXX XXXXXX, an individual, as
RELEASOR, in consideration of the sum of TEN DOLLARS ($10) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, received from UBS WARBURG REAL ESTATE SECURITIES INC., a Delaware
corporation ("UBSWRESI"), STRATUM REALTY COMPANY, L.P., a Delaware limited
partnership ("SRC"), and STRATUM REALTY FUND, L.P., a Delaware limited
partnership ("SRF"), collectively as RELEASEES, hereby releases and discharges
the RELEASEES and each of the RELEASEES' respective parents, subsidiaries,
affiliated or otherwise related parties, and each present and past general and
limited partner, member, manager, officer, director, shareholder, employee,
agent, attorney, heir, successor and assign of any of the foregoing from all
actions, causes of action, suits, regulatory proceedings, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, rights, warranties, and demands whatsoever, in law,
equity or otherwise (collectively, "Claims"), which RELEASOR ever had, now has
or may have against any of the RELEASEES arising from or in connection with
RECKSON STRATEGIC VENTURE PARTNERS, LLC, a Delaware limited liability company
("RSVP") or RECKSON ASSET PARTNERS LLC, a Delaware limited liability company
("RAP"), whether known or unknown, suspected or unsuspected, liquidated or
contingent, and whether or not concealed or hidden, for, upon, or by reason of
any act, event, occurrence, matter, cause or thing whatsoever from the beginning
of the world to the day of the date of this RELEASE; provided, however, that
this RELEASE shall not be deemed or construed to be a release or waiver of any
of the rights or obligations of RELEASOR under, pursuant to or arising from (i)
that certain Restructuring Agreement dated April 29, 2003 (the "Restructuring
Agreement") among UBS Warburg Real Estate Securities Inc., SRF, RSVP, RSVP
Holdings LLC and RAP; (ii) any of the documents executed and delivered pursuant
to the Restructuring Agreement; (iii) any direct or indirect transactions
between RELEASOR and any of the RELEASEES which are unrelated to RSVP or RAP,
including, without limitation, (A) any entitlement of RELEASOR to indemnity or
coverage as an employee, director or officer (including, without limitation,
under any insurance policy) and (B) RELEASOR'S ownership of a (1) 33.33% equity
interest in BTL Capital Corp. II, (2) 28% equity interest in BTL Capital
Partners I, LP and (3) 1.7% equity interest in SRF Management Partners, L.P.;
(iv) any Claims involving fraud or (v) any Claims by a third party relating to
or arising from any of the matters covered or contemplated by this RELEASE.
This RELEASE may not be changed orally.
It is understood, acknowledged and agreed by RELEASOR that the
RELEASEES dispute and deny any liability whatsoever and that the settlement
evidenced by this Agreement is not and shall not be construed as any admission
of liability of any of the RELEASEES.
This RELEASE shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without giving effect to the
choice-of-law provisions thereof.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, the RELEASOR has executed this RELEASE on
_________, 2003.
-------------------------------------
XXXX XXXXXX
INDIVIDUAL ACKNOWLEDGMENT
STATE OF: )
) ss.:
COUNTY OF: )
On this day of ________ 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who subscribed, swore
to and acknowledged the foregoing Release.
[SEAL]
--------------------------------
Notary Public
[SIGNATURE AND ACKNOWLEDGMENT PAGE TO RELEASE D-2(A)]
EXHIBIT D-2(B)
RELEASE OF CLASS A SELLERS
LIMITED RELEASE OF CLAIMS
-------------------------
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, except
as provided in clauses (i) through (v) below, XXXX XXXXXX, an individual, as
RELEASOR, in consideration of the sum of TEN DOLLARS ($10) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, received from UBS WARBURG REAL ESTATE SECURITIES INC., a Delaware
corporation ("UBSWRESI"), STRATUM REALTY COMPANY, L.P., a Delaware limited
partnership ("SRC"), and STRATUM REALTY FUND, L.P., a Delaware limited
partnership ("SRF"), collectively as RELEASEES, hereby releases and discharges
the RELEASEES and each of the RELEASEES' respective parents, subsidiaries,
affiliated or otherwise related parties, and each present and past general and
limited partner, member, manager, officer, director, shareholder, employee,
agent, attorney, heir, successor and assign of any of the foregoing from all
actions, causes of action, suits, regulatory proceedings, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, rights, warranties, and demands whatsoever, in law,
equity or otherwise (collectively, "Claims"), which RELEASOR ever had, now has
or may have against any of the RELEASEES arising from or in connection with
RECKSON STRATEGIC VENTURE PARTNERS, LLC, a Delaware limited liability company
("RSVP") or RECKSON ASSET PARTNERS LLC, a Delaware limited liability company
("RAP"), whether known or unknown, suspected or unsuspected, liquidated or
contingent, and whether or not concealed or hidden, for, upon, or by reason of
any act, event, occurrence, matter, cause or thing whatsoever from the beginning
of the world to the day of the date of this RELEASE; provided, however, that
this RELEASE shall not be deemed or construed to be a release or waiver of any
of the rights or obligations of RELEASOR under, pursuant to or arising from (i)
that certain Restructuring Agreement dated April 29, 2003 (the "Restructuring
Agreement") among UBS Warburg Real Estate Securities Inc., SRF, RSVP, RSVP
Holdings LLC and RAP; (ii) any of the documents executed and delivered pursuant
to the Restructuring Agreement; (iii) any direct or indirect transactions
between RELEASOR and any of the RELEASEES which are unrelated to RSVP or RAP,
including, without limitation, (A) any entitlement of RELEASOR to indemnity or
coverage as an employee, director or officer (including, without limitation,
under any insurance policy) and (B) RELEASOR'S ownership of a (1) 33.33% equity
interest in BTL Capital Corp. II, (2) 28% equity interest in BTL Capital
Partners I, LP and (3) 1.7% equity interest in SRF Management Partners, L.P.;
(iv) any Claims involving fraud; (v) any Claims by a third party relating to or
arising from any of the matters covered or contemplated by this RELEASE or (vi)
Claims based on any new act by any RELEASEE from on or after April 30, 2003
through the Closing Date (as such term is defined in the Restructuring
Agreement) which such Claims are set forth on Schedule A annexed to this
RELEASE.
This RELEASE may not be changed orally.
It is understood, acknowledged and agreed by RELEASOR that the
RELEASEES dispute and deny any liability whatsoever and that the settlement
evidenced by this Agreement is not and shall not be construed as any admission
of liability of any of the RELEASEES.
This RELEASE shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without giving effect to the
choice-of-law provisions thereof.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, the RELEASOR has executed this RELEASE on the
Closing Date (as such term is defined in the Restructuring Agreement).
-------------------------------------
XXXX XXXXXX
[SIGNATURE PAGE TO RELEASE D-2(B)]
SCHEDULE A
None.
INDIVIDUAL ACKNOWLEDGMENT
STATE OF: )
) ss.:
COUNTY OF: )
On this day of ________ 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who subscribed, swore
to and acknowledged the foregoing Release.
[SEAL]
--------------------------------
Notary Public
[ACKNOWLEDGMENT PAGE TO RELEASE D-2(B)]
EXHIBIT D-3
RELEASE OF QUIK PARK PARTIES
LIMITED RELEASE OF CLAIMS
-------------------------
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, except
as provided in clauses (i) through (iii) below, RECKSON STRATEGIC VENTURE
PARTNERS, LLC, a Delaware limited liability company ("RSVP"), RSVP HOLDINGS LLC,
a Delaware limited liability company, RECKSON ASSET PARTNERS LLC, a Delaware
limited liability company ("RAP"), RSI FUND MANAGEMENT LLC, a Delaware limited
liability company, FRONTLINE CAPITAL GROUP, a Delaware corporation (f/k/a
RECKSON SERVICE INDUSTRIES, INC.), acting pursuant to a motion filed in its
bankruptcy case, which was approved by an order of the United States Bankruptcy
Court for the Southern District of New York dated March 31, 2003, NEW WORLD
REALTY, LLC, a Delaware limited liability company, RSVP METROPOLITAN PARKING,
LLC, a Delaware limited liability company, XXXXXX X. XXXXXXXX, an individual,
XXXXXX XXXXXXX, an individual, XXXXX XXXXXXX, an individual, XXXXX XXXXXXX, an
individual, XXXXXXXX XXXXXXX, an individual, XXXXXXX XXXXXX, an individual, XXXX
XXXXXX, an individual, XXXXX XXXXXXX, an individual, and XXXXX XXXXXXX, an
individual, collectively, as RELEASORS, in consideration of the sum of TEN
DOLLARS ($10) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, received from METROPOLITAN QUIK
PARK OF SOUTH FLORIDA, LLC, a Delaware limited liability company ("Quik Park
South Florida"), M & E HOLDINGS LLC, a Delaware limited liability company ("M &
E"), GULFSTREAM MANAGEMENT, LLC, a Delaware limited liability company, XXXXX X.
XXXXXX, an individual ("Xxxxxx"), XXXXXX XXXXXX, an individual, and XXXXXXXX
XXXXXX, an individual, collectively as RELEASEES, hereby release and discharge
the RELEASEES and each of the RELEASEES' respective parents, subsidiaries,
affiliated or otherwise related parties (as regards each of the RELEASEES that
is not an individual), and each present and past general and limited partner,
member, manager, officer, director, shareholder, employee, agent, attorney,
heir, successor and assign of any of the foregoing from all actions, causes of
action, suits, regulatory proceedings, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, rights, warranties, and demands whatsoever, in law, equity
or otherwise (collectively, "Claims"), which any of the RELEASORS ever had, now
have or may have against any of the RELEASEES arising from or in connection with
the ownership or operations of Quik Park South Florida and entities under the
control of Quik Park South Florida, whether known or unknown, suspected or
unsuspected, liquidated or contingent, and whether or not concealed or hidden,
for, upon, or by reason of any act, event, occurrence, matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
RELEASE; provided, however, that this RELEASE shall not be deemed or construed
to be a release or waiver of any of the rights or claims of any of the RELEASORS
or any of the obligations of any of the RELEASEES under, pursuant to or arising
from (i) any direct or indirect transactions between any of the RELEASORS and
any of the RELEASEES which are unrelated to the ownership or operations of Quik
Park South Florida and entities under the control of Quik Park South Florida;
(ii) any Claims involving fraud or (iii) with respect to Quik Park South
Florida, M & E and Xxxxxx only, that certain letter agreement dated the date
hereof among Xxxxxx, M & E and UBS Warburg Real Estate Securities Inc., a
Delaware corporation.
This RELEASE may not be changed orally.
It is understood, acknowledged and agreed by the RELEASORS that the
RELEASEES dispute and deny any liability whatsoever and that the settlement
evidenced by this Agreement is not and shall not be construed as any admission
of liability of any of the RELEASEES.
This RELEASE shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without giving effect to the
choice-of-law provisions thereof.
[Remainder of page intentionally left blank.
Next page is the signature page.]
IN WITNESS WHEREOF, the RELEASORS have caused this RELEASE to be
executed on April 29, 2003.
RSI FUND MANAGEMENT LLC
By: FrontLine Capital Group, its managing
member
By:
--------------------------------
FRONTLINE CAPITAL GROUP
By:
------------------------------------
NEW WORLD REALTY, LLC
By:
------------------------------------
RSVP METROPOLITAN PARKING, LLC
By:
------------------------------------
[SIGNATURE PAGE TO RELEASE D-3]
RECKSON STRATEGIC
VENTURE PARTNERS, LLC
By: RSVP Holdings LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
------------------------
Name:
Title:
RSVP HOLDINGS LLC
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
----------------------------
Name:
Title:
[SIGNATURE PAGE TO RELEASE D-3]
RECKSON ASSET PARTNERS LLC
By: Reckson Strategic Venture Partners, LLC,
its managing member
By: RSVP Holdings, LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
-----------------------
Name:
Title:
-------------------------------------------
XXXXXX X. XXXXXXXX
-------------------------------------------
XXXXXX XXXXXXX
-------------------------------------------
XXXXX XXXXXXX
-------------------------------------------
XXXXX XXXXXXX
-------------------------------------------
XXXXXXXX XXXXXXX
-------------------------------------------
XXXXXXX XXXXXX
[SIGNATURE PAGE TO RELEASE D-3]
-------------------------------------------
XXXX XXXXXX
-------------------------------------------
XXXXX XXXXXXX
-------------------------------------------
XXXXX XXXXXXX
[SIGNATURE PAGE TO RELEASE D-3]
LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
----------------------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who, being by me duly
sworn, did depose and say that he/she is the of , the limited liability company
which executed the foregoing Release, and he/she subscribed, swore to and
acknowledged the same in his/her capacity as such __________ as the authorized
and binding act and deed of said limited liability company.
[SEAL]
--------------------------------
Notary Public
CORPORATE ACKNOWLEDGMENT
------------------------
STATE OF )
) ss.:
COUNTY OF )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who, being by me duly
sworn, did depose and say that he/she is the of , the corporation which executed
the foregoing Release, and he/she subscribed, swore to and acknowledged the same
in his/her capacity as such officer as the authorized and binding act and deed
of said corporation.
[SEAL]
--------------------------------
Notary Public
[ACKNOWLEDGEMENT PAGE TO RELEASE D-3]
INDIVIDUAL ACKNOWLEDGMENT
-------------------------
STATE OF: )
) ss.:
COUNTY OF: )
On this day of April 2003, before me, a Notary Public in and for the
jurisdiction aforesaid, personally appeared , to me known, who subscribed, swore
to and acknowledged the foregoing Release.
[SEAL]
--------------------------------
Notary Public
[ACKNOWLEDGEMENT PAGE TO EXHIBIT D-3]
EXHIBIT E-1
FORM OF OPINION OF COUNSEL FOR EACH OF STRATUM
AND THE COMPANY PARTIES
__________, 2003
Re: RSVP Restructuring
------------------
Gentlemen:
We have acted as counsel to _______________ and _______________ in
connection with that certain Restructuring Agreement dated April 29, 2003 (the
"Restructuring Agreement") among the parties listed on Schedule 1 annexed
hereto.
1. For purposes of this opinion letter, we have examined the
Restructuring Agreement and the documents executed on or about this date by
_____ and _____, which documents are more fully described on Schedule 2 annexed
hereto (collectively, the "Restructuring Documents").
(a) We have also examined and reviewed originals or
counterparts of the following documents and instruments:
(i) [Certificates of Formation] [Certificates of
Incorporation] [Certificate of Limited Partnership] of _____ and _____,
respectively; and
(ii) [Operating Agreements] [By-Laws] of _____ and
_____, respectively (collectively, the "Organizational Documents").
2. The words "our knowledge," or "best of our knowledge," as used in
this opinion letter: (a) signify that, in the course of our representation of
_____ and _____, no facts have come to our attention that would give us actual
knowledge or actual notice that any such opinions or other matters are
inaccurate, and (b) are limited to the actual knowledge of the attorneys within
our firm who have been involved in representing _____ and _____ in connection
with the Restructuring Agreement. Except as otherwise stated in this opinion
letter, we have undertaken no investigation or verification of such matters.
3. In reaching the opinions set forth below, we have assumed, and to
our knowledge, there are no facts inconsistent with the following:
(a) Each of the parties to the Restructuring Documents, other
than _____ and _____, has duly and validly executed and delivered each such
instrument, document, and agreement to be executed in connection with the
Restructuring Documents to which such party is a signatory, and such party's
obligations set forth in the Restructuring Documents are its legal, valid, and
binding obligations, enforceable in accordance with their respective terms.
(b) Each person, other than _____ and ______, executing any of
the Restructuring Documents, whether individually or on behalf of an entity, is
duly authorized to do so.
(c) Each natural person executing any of the Restructuring
Documents is legally competent to do so.
(d) All signatures of parties, other than the signatures of
________________, on the Restructuring Documents are genuine.
(e) All documents submitted to us as originals are authentic,
all documents submitted to us as certified or photostatic copies conform to the
original document, and all public records reviewed are accurate and complete.
(f) All applicable Restructuring Documents will be duly filed,
indexed and recorded among the appropriate official records with all fees,
charges and taxes having been paid.
(g) The parties to the Restructuring Documents and their
successors and assigns shall: (i) act in good faith and in a commercially
reasonable manner in the exercise of any rights or enforcement of any remedies
under the Restructuring Documents; (ii) not engage in any conduct in the
exercise of such rights or enforcement of such remedies that would constitute
other than fair dealing; and (iii) comply with all requirements of applicable
procedural and substantive law in exercising any rights or enforcing any
remedies under the Restructuring Documents.
(h) The exercise of any rights or the enforcement of any
remedies under the Restructuring Documents would not be unconscionable, result
in a breach of the peace, or otherwise be contrary to public policy.
4. In rendering this opinion letter, we have with your approval made
reasonable inquiry of _____ and _____ as to the accuracy and completeness of the
Organizational Documents, the representations set forth in the Restructuring
Documents and certain factual matters, and nothing has come to our attention
that leads us to believe that we are not justified in assuming the accuracy and
completeness of same and in so relying thereon.
5. In addition to the assumptions set forth above, the opinions set
forth herein are also subject to the following qualifications:
(a) We express no opinion with respect to title or the
priority of liens or security interests on any of the real or personal property
which is the subject of the Restructuring Agreement.
(b) The opinions expressed below concern only the effect of
the laws of the State of New York and the United States of America and the
[corporate] [limited partnership] [limited liability] law of the State of
Delaware, each as currently in effect, and we express no opinion as to the laws
of any other jurisdiction. We assume no obligation to supplement this opinion
letter if any applicable laws change after the date of this opinion letter, or
if we become aware of any facts that might change the opinions expressed below
after the date of this opinion letter.
6. Subject to the qualifications set forth in subsequent portions of
this opinion letter, it is our opinion that:
(a) Based upon certificates issued by the Secretary of State
of the State of _______, each of _____ and ______ is a [corporation] [limited
partnership] [limited liability company] duly formed, validly existing and in
good standing under the laws of the State of Delaware, and has all requisite
authority and legal rights to conduct its business as presently conducted and
perform its obligations under the Restructuring Documents.
(b) The Restructuring Documents to which _____ or ______ is a
party have each been duly authorized and properly executed and delivered by
_____ or _____, as the case may be, and each of such Restructuring Documents is
a valid and binding obligation and agreement of _____ or _____, as the case may
be, enforceable in accordance with its terms.
(c) To our knowledge, the execution and delivery of the
Restructuring Documents will not violate, conflict with, result in the breach of
or constitute a default under the Organizational Documents or, except as set
forth on Schedule 3 annexed hereto, under any contract, agreement, instrument,
judgment, decree, order, statute, rule or regulation to which _____ or _____ is
subject.
(d) To our knowledge, no consent, approval or authorization of
_____ or _____, any other person or entity, or registration, filing or
declaration with or consent by any federal, state or municipal governmental
authority or other regulatory agency is required for the legal and valid
execution, delivery and performance by _____ or _____ of the Restructuring
Documents.
7. The opinions expressed in paragraph 6 above are subject to (i) the
effect of the exercise of judicial discretion in accordance with general
principles of equity; and (ii) bankruptcy, insolvency, reorganization,
moratorium and other laws applicable to creditor's rights or the collection of
debtor's obligations generally. In addition, certain remedies, waivers, and
other provisions of the Restructuring Documents may not be enforceable, but,
subject to the qualifications set forth in the foregoing sentence, such
unenforceability will not render the Restructuring Documents invalid or
substantially interfere with the realization of the principal benefits provided
thereby.
The opinions set forth herein are limited to the matters set forth in
this opinion letter. No other opinions should be inferred beyond the matters
expressly stated.
This opinion letter may not be used, circulated, quoted or otherwise
referred to for any purpose other than by you in connection with the
Restructuring Documents except as stated herein without our express permission.
Except as otherwise agreed to by the undersigned in writing, the opinions
expressed herein are solely for the benefit of you and your successors and
assigns.
Very truly yours,
SCHEDULE 1
----------
Parties to Restructuring Agreement
UBS WARBURG REAL ESTATE SECURITIES INC.
STRATUM REALTY PARTNERS, L.P.
RECKSON STRATEGIC VENTURE PARTNERS, LLC
RSVP HOLDINGS LLC
RECKSON ASSET PARTNERS LLC
SCHEDULE 2
----------
Restructuring Documents
SCHEDULE 3
----------
Conflict Documents
EXHIBIT E-2
FORM OF OPINION OF COUNSEL FOR UBS
April 29, 2003
Reckson Strategic Venture Partners, LLC
RSVP Holdings LLC
Reckson Asset Partners LLC
c/o Xxxxxxx Xxxxxxxxx
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Re: RSVP Restructuring
------------------
Gentlemen:
We have acted as counsel to UBS Warburg Real Estate Securities Inc.
(the "Corporation") in connection with the negotiation, preparation, execution,
and delivery of a certain Restructuring Agreement between you, Stratum Realty
Fund, L.P., and the Corporation dated the date hereof (the "Restructuring
Agreement"), and the related agreements, documents and instruments, which are
set forth on Exhibit A hereto (collectively with the Restructuring Agreement,
the "Restructuring Documents"). Capitalized terms not otherwise defined herein,
shall have the meanings set forth in the Restructuring Agreement. This opinion
is delivered to you at the request of the Corporation pursuant to Section
4(a)(vii) of the Restructuring Agreement.
In rendering this opinion, we have examined and relied upon, among
other things, originals or certified, conformed or photostatic copies of the
following:
(a) The executed Restructuring Documents;
(b) A Certificate of Good Standing for the Corporation from
the Secretary of State of the State of Delaware dated April 22, 2003 (the "Good
Standing Certificate"); and
(c) The Officers' Certificate of the Corporation, including
the attachments thereto.
As to questions of fact material to our opinions, we have relied upon
the representations and warranties contained in the Restructuring Documents and
the Officers Certificate. We have assumed without further investigation or
inquiry the truth and accuracy of the factual matters contained therein. Any
qualifications herein "to our knowledge," "known to us," or words of similar
import shall be deemed to mean the actual knowledge of the attorneys in this
firm representing or providing legal services to the Corporation in connection
with the transaction contemplated by the Restructuring Documents, but no
independent inquiry or investigation of our files or the files of our client has
been made.
We have also examined the originals, or copies certified or otherwise
identified to our satisfaction, of such organizational documents, records,
agreements and other instruments of the Corporation and/or certificates or
comparable documents of public officials and of officers and directors of the
Corporation as we have deemed relevant and necessary as a basis for the opinions
expressed below.
In our examination, we have also assumed the following:
(i) The authenticity of all documents submitted to us
as originals (other than the Restructuring Documents);
(ii) Each natural person executing any of the
Restructuring Documents is legally competent to do so;
(iii) The genuineness of all signatures (including
the signatures of the Corporation);
(iv) The conformity to the originals of all documents
submitted to us as copies;
(v) That there have been no subsequent modifications
or amendments to the Restructuring Documents or to any documents executed in
connection therewith after their execution and delivery by all parties named
therein;
(vi) All applicable Restructuring Documents will be
duly filed, indexed, and recorded among the appropriate official records with
all fees, charges and taxes having been paid;
(vii) The parties to the Restructuring Documents and
their successors and assigns shall: (i) act in good faith and in a commercially
reasonable manner in the exercise of any rights or enforcement of any remedies
under the Restructuring Documents; (ii) not engage in any conduct in the
exercise of such rights or enforcement of such remedies that would constitute
other than fair dealing; and (iii) comply with all requirements of applicable
procedural and substantive law in exercising any rights or enforcing any
remedies under the Restructuring Documents; and
(viii) The exercise of any rights or the enforcement
of any remedies under the Restructuring Documents would not be unconscionable,
result in a breach of the peace, or otherwise be contrary to public policy.
Based on the foregoing, and subject to the limitations set forth
herein, we are of the opinion that:
1. Based solely on the Good Standing Certificate, the Corporation is
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has all requisite authority and legal rights to conduct
its business as presently conducted and to perform the Corporation's obligations
under the Restructuring Documents.
2. The Restructuring Documents to which the Corporation is a party have
each been duly authorized and properly executed and delivered by the
Corporation, and each of such Restructuring Documents is a valid and binding
obligation and agreement of the Corporation, enforceable in accordance with its
terms.
3. To our knowledge, the execution and delivery of the Restructuring
Documents, will not violate, conflict with, result in the breach of or
constitute a default under the organizational documents of the Corporation or,
under any contract, agreement, instrument, judgment, decree, order, statute,
rule or regulation to which the Corporation is subject.
4. To our knowledge, no consent, approval or authorization of the
Corporation, any other person or entity, or registration, filing or declaration
with or consent by any federal, state or municipal governmental authority or
other regulatory agency is required for the legal and valid execution, delivery
and performance by the Corporation of the Restructuring Documents.
The opinions expressed in this letter are contingent upon our receipt
of evidence of (i) the satisfaction of each and every closing condition set
forth in the Restructuring Agreement, and (ii) the release of each of the
closing documents delivered to Xxxxxxx Xxxxxxxxx LLP, as Escrow Agent, under the
Restructuring Agreement, and are subject to and based upon those qualifications,
assumptions and statements hereinbefore and hereinafter set forth:
(a) We have assumed the due authorization, execution and
delivery by each of the parties to the Restructuring Documents (other than the
Corporation) of the Restructuring Documents to which they are a party and that
they have the power, authority and legal right under applicable laws and
regulations to enter into, execute, deliver and perform their obligations
thereunder, and that such Restructuring Documents constitute their legal, valid
and binding obligations enforceable against them in accordance with their terms;
(b) The rights and remedies set forth in the Restructuring
Documents may be limited by bankruptcy, reorganization, conservatorship,
liquidation, insolvency, moratorium, fraudulent conveyance or transfer, and
other laws of general application and equitable principles relating to or
affecting the enforcement of creditors' rights generally. In addition, certain
remedies, waivers, and other provisions of the Restructuring Documents may not
be enforceable, but, subject to the qualifications set forth in the foregoing
sentence, such unenforceability will not render the Restructuring Documents
invalid or substantially interfere with the realization of the principal
benefits provided thereby.
(c) We express no opinion and assume no responsibility with
respect to any financial statements or financial condition of the Corporation or
any financial or statistical data referred to in any of the Restructuring
Documents or supplied in connection therewith or contained in any other material
furnished by the Corporation.
(d) We specifically disclaim any opinion regarding, and this
opinion does not cover or imply compliance or non-compliance by the Borrower
with, or opine as to the effect of federal, state or local antitrust,
securities, or tax laws, regulations or ordinances.
(e) We do not opine as to the status of title or priority of
liens or security interests on any property, real or personal, of the
Corporation which is the subject of the Restructuring Agreement or, as to the
relative rights, interests and priorities of the various parties who have or may
claim any interests in any such property.
(f) We express no opinion as to any representations,
warranties or facts contained in any of the Restructuring Documents, having
assumed a completeness in accuracy thereof in all respects.
The foregoing opinions are limited to matters involving the Federal
laws of the United States and the laws of the State New Jersey, and the
corporate laws of the State of Delaware each as currently in effect. To the
extent that the laws of another state may apply, we have assumed that the laws
of such states are the same as the laws of the State of New Jersey in all
relevant respects. We do not express any opinion as to the laws of any other
jurisdiction.
This opinion is solely for the benefit of the addressees hereof. This
opinion is provided as a legal opinion only, and not as a guarantee or warranty
of the transactions contemplated by the Restructuring Documents. We disclaim any
obligation to update or supplement this opinion to reflect any facts or
circumstances which may hereinafter come to our attention and this opinion does
not extend to or cover any changes in any laws or court decisions which may
hereafter occur. We do not render any opinion with respect to any matters other
than those expressly set forth above.
Very truly yours,
EXHIBIT "A"
Restructuring Agreement
Assignment and Assumption of Membership Interest (Reckson Strategic Venture
Partners, LLC)
Limited Release of Claims (in favor of the Company Parties)
Limited Release of Claims (in favor of Xxxx Xxxxxx)
Escrow Agreement
EXHIBIT F
ESCROW AGREEMENT
Escrow Agreement dated April 29, 2003 ("Agreement") among Reckson
Strategic Venture Partners, LLC, a Delaware limited liability company (the
"Company"), RSVP Holdings LLC, a Delaware limited liability company
("Holdings"), Reckson Asset Partners LLC, a Delaware limited liability company
("RAP"), UBS Warburg Real Estate Securities Inc., a Delaware corporation
("UBS"), Stratum Realty Fund, L.P., a Delaware limited partnership ("Stratum"
and together with UBS, the "Class A Sellers"), and Xxxxxxx, Xxxxxxxxx LLP, a New
York limited liability partnership, as escrow agent (the "Escrow Agent").
1. Each of the Company, Holdings, RAP and the Class A Sellers hereby
appoint the Escrow Agent to serve as escrowee hereunder to facilitate the
closing of the transactions contemplated by the Restructuring Agreement of even
date herewith (the "Restructuring Agreement") among such parties (other than the
Escrow Agent). The Escrow Agent hereby accepts such appointment. Each
capitalized term not otherwise defined herein shall have the meaning assigned to
it in the Restructuring Agreement.
2. On the date hereof, the Class A Sellers have deposited with the
Escrow Agent two (2) sets of original documents described on Schedule A annexed
hereto (the "Class A Sellers' Documents") executed on behalf of one or both of
the Class A Sellers, as applicable.
3. From and after the date of this Agreement, the Company shall deposit
all Capital Event Proceeds into the account (the "Escrow Account") of the Escrow
Agent specified on Schedule B annexed hereto. On each occasion, if any, that
Capital Event Proceeds are deposited into the Escrow Account, the Escrow Agent
shall, within one (1) Business Day following the date of such deposit, initiate
a Federal wire transfer of the amount of such deposit to the accounts
(collectively, the "Class A Sellers Account") of the Class A Sellers specified
on Schedule C annexed hereto; provided, however, that with respect to any
Undistributed NIRs, the Escrow Agent shall wire such Undistributed NIRs in
accordance with such written instructions as are provided by the Class A Sellers
to the Escrow Agent.
4. No earlier than five (5) Business Days prior to the Closing Date,
the Company shall deposit (the "Company Deposit") into the Escrow Account the
following amounts:
(i) the balance (the "Purchase Price Balance") of the Purchase
Price, which balance shall be equal to the Purchase Price after crediting the
amount of (A) the transfers and payments described in Paragraph 3 of the
Restructuring Agreement and (B) Capital Event Proceeds, if any, received by the
Company from and after the date of this Agreement that have been paid to the
Class A Sellers in accordance with Section 3 of this Agreement;
(ii) the amount (the "Undistributed NIRs"), if any, by which
the undistributed Net Investment Revenues on the date of the Company Deposit
exceeds $500,000 and
(iii) additional cash in the amount of $250,000 (the "NIRs
Deposit").
Concurrently with the Company Deposit, the Company, Holdings and RAP
shall deliver to the Escrow Agent two (2) sets of original documents described
on Schedule D annexed hereto (the "Company Documents") executed on behalf of the
Company, Holdings and/or RAP, as applicable.
With respect to all releases received by the Escrow Agent whether as
part of the Class A Sellers' Documents or the Company Documents that relate to
releasing claims for the period April 30, 2003 through the Closing Date, if at
least one (1) Business Day prior to the Closing Date, the Escrow Agent receives
any substitute Schedule A to a release from the Class A Sellers, as regards the
Class A Sellers' Documents, or the Company, as regards the Company Documents,
then the Escrow Agent shall delete the then existing Schedule A to such release
in its possession and attach the substituted Schedule A provided to the Escrow
Agent prior to releasing such documents from escrow.
If the Company Deposit and Company Documents are received by the Escrow
Agent at least one (1) Business Day prior to the Closing Date, then, on the
Closing Date, the Escrow Agent shall (i) initiate a Federal wire transfer to the
Class A Sellers Account of the Purchase Price Balance and the amount received
for the Undistributed NIRs; (ii) deliver the Class A Sellers' Documents to
Xxxxxxx, Xxxxxxxxx LLP on behalf of the Company, Holdings and RAP and (iii)
deliver the Company Documents to which (A) UBS is a party to Xxxx Xxxxx, Esq. of
the law firm Cole, Schotz, Meisel, Xxxxxx & Xxxxxxx, P.A. and (B) Stratum is a
party to Xxxxxx Xxxxx, Esq. of the law firm of Cadwalader Xxxxxxxxxx & Xxxx LLP,
whereupon the Closing for all purposes of this Agreement and the Restructuring
Agreement shall be deemed to have occurred, but any dispute, if any, with
respect to Undistributed NIRs shall remain unaffected by such Closing.
If the Company Deposit and Company Documents are not received by the
Escrow Agent by at least one (1) Business Day prior to the Outside Closing Date,
then the Escrow Agent shall, within two (2) Business Days following the Outside
Closing Date, destroy the Class A Sellers' Documents.
5. The Class A Sellers shall have a period of thirty (30) calendar days
following their receipt of the wire transfer of the Undistributed NIRs to notify
the Escrow Agent in writing (the "Class A Sellers' Notice") as to whether the
Class A Sellers agree with the amount received for the Undistributed NIRs and,
if not, the amount the Class A Sellers demand on account of the Undistributed
NIRs.
(a) If the Escrow Agent either (i) does not timely receive the
Class A Sellers' Notice or (ii) if timely received, the Class A Sellers' Notice
does not dispute the amount received for the Undistributed NIRs and specify what
amount the Class A Sellers demand on account of the Undistributed NIRs, then, in
either case, the Escrow Agent shall, within two (2) Business Days after the
earlier of the Escrow Agent's receipt of the Class A Sellers' Notice or the last
day on which the Class A Sellers' Notice could have been timely received,
initiate a Federal wire transfer of an amount equal to the NIRs Deposit to the
account (the "Company Account") of the Company specified on Schedule E annexed
hereto.
-2-
(b) If the Escrow Agent shall timely receive the Class A
Sellers' Notice, then the Escrow Agent shall, within two (2) Business Days
following its receipt of the Class A Sellers' Notice, deliver a copy of such
notice to the Company, Holdings and RAP, and the Escrow Agent, subject to
Sections 5(b)(i) and 5(b)(ii) of this Agreement, shall continue to hold in the
Escrow Account that portion (the "Disputed NIRs Amount") of the NIRs Deposit
equal to the lesser of (y) $250,000 or (z) the amount of Undistributed NIRs
claimed by the Class A Sellers, but not yet received from the Escrow Agent. If
the Disputed NIRs Amount is less than the NIRs Deposit, then the Escrow Agent
shall, within three (3) Business Days following its receipt of the Class A
Sellers' Notice, initiate a Federal wire transfer to the Company Account of that
portion of the NIRs Deposit not needed to fund the Disputed NIRs Amount.
(i) If the Escrow Agent shall timely receive the
Class A Sellers' Notice, then each of the Company and the Class A Sellers shall
have the right to initiate legal proceedings to seek to recover the Disputed
NIRs Amount within ninety (90) days following the Closing Date. If such legal
proceedings are timely initiated, the Escrow Agent shall continue to hold the
Disputed NIRs Amount in the Escrow Account until the Escrow Agent has received
(i) a final, non-appealable order of a court of competent jurisdiction located
in the County of New York directing delivery of the Disputed NIRs Amount or (ii)
written disposition instructions executed jointly by the Company and the Class A
Sellers. All interest earned on the Disputed NIRs Amount shall be paid to the
recipient of such amount as determined in accordance with this Section 5(b)(i)
of this Agreement.
(ii) If legal proceedings are not timely initiated
pursuant to Section 5(b)(i) of this Agreement within ninety (90) days following
the Closing Date, then the Escrow Agent shall on the first (1st) Business Day
following the expiration of such ninety (90)-day-period, initiate a Federal wire
transfer of an amount equal to the Disputed NIRs Amount to the Company Account.
6. Except as may be otherwise provided for in Section 5(b)(i) of this
Agreement, all interest, if any, earned on amounts deposited by the Company in
the Escrow Account shall be for the account of the Company.
7. The duties and responsibilities of the Escrow Agent hereunder shall
be determined solely by the express provisions of this Agreement, and no other
or further duties or responsibilities shall be implied. The Escrow Agent shall
not have any liability under, nor duty to inquire into the terms and provisions
of any agreement or instructions, other than as outlined in this Agreement.
8. The Escrow Agent may act upon any judgment, certification, demand,
notice, instrument or other writing believed by it, in good faith, to be genuine
and purporting to be signed on behalf of the party for whom it is signed without
being required to determine the authenticity or correctness of any fact stated
therein or the propriety or validity of the signature or service thereof. The
Escrow Agent may assume that any person purporting to give any notice or receipt
or advice or to make any statement or execute any document in connection with
the provisions hereof has been duly authorized to do so. Notwithstanding any
provision to the contrary, notice to the Escrow Agent shall not be effective
unless actually received by the Escrow Agent.
-3-
9. In the event of any disagreement between any of the parties to this
Agreement, or between any of them and any other person, resulting in adverse
claims or demands being made in connection with the Class A Sellers' Documents,
Company Documents and/or Restructuring Agreement, or in the event that the
Escrow Agent in good faith is in doubt as to what action it should take
hereunder, the Escrow Agent may, at its option, continue to hold the Class A
Sellers' Documents and Company Documents and refuse to comply with any claims or
demands on it until (i) the Escrow Agent shall have received a final,
non-appealable order of a court of competent jurisdiction located in the County
of New York directing delivery of the Class A Sellers' Documents and Company
Documents or (ii) all differences shall have been adjusted and all doubt
resolved by written agreement executed by the parties to such disagreement.
10. The Escrow Agent (and any successor to the Escrow Agent) may at any
time resign as such by delivering the escrowed subject matter of this Agreement
to any successor to the Escrow Agent reasonably acceptable to the Class A
Sellers and the Company, Holdings and RAP, designated by the Escrow Agent in
writing, or the Clerk of the United States District Court for the Southern
District of New York or the Supreme Court of the State of New York, County of
New York whereupon the Escrow Agent shall be discharged of and from any and all
further obligations arising in connection with this Agreement.
11. The Escrow Agent shall not be liable for any action taken or
omitted by it in good faith unless a court of competent jurisdiction determines
that the Escrow Agent's willful misconduct was the primary cause of any loss to
the parties hereto. In the administration of the escrow hereunder, the Escrow
Agent may act directly or through agents or attorneys and may, in its sole
discretion, consult with such counsel, accountants and other skilled persons
selected and retained by it. The Escrow Agent shall not be liable for any acts,
suffered or omitted in good faith by it in accordance with the advice or opinion
of any such counsel, accountants or other skilled persons.
12. The Class A Sellers, on the one hand, and the Company, Holdings and
RAP, on the other, jointly and severally, shall indemnify, defend and save
harmless the Escrow Agent from all loss, liability or expense (including the
fees and expenses of outside counsel) arising out of or in connection with (i)
its execution and performance of this Agreement, except to the extent that such
loss, liability or expense is due to the gross negligence or willful misconduct
of the Escrow Agent or (ii) its following any instructions or other directions
from the Class A Sellers and/or the Company, Holdings and RAP, except to the
extent that following any such instruction or direction is expressly forbidden
by the terms hereof. Anything in this Agreement to the contrary notwithstanding,
in no event shall the Escrow Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Escrow Agent has been advised of the likelihood of
such loss or damage and regardless of the form of action.
13. The provisions of this Agreement may be waived, altered, amended or
supplemented in whole or in part, only by a writing signed by all of the parties
hereto.
14. Neither this Agreement nor any right or interest hereunder may be
assigned in whole or in part by any party without the prior consent of the other
parties.
-4-
15. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
16. The Escrow Agent shall not incur any liability for following the
instructions herein contained or expressly provided for, or written instructions
given by the parties hereto.
17. Each of the Class A Sellers hereby acknowledges, confirms and
agrees that Xxxxxxx, Xxxxxxxxx LLP may act as the Escrow Agent hereunder
notwithstanding that Xxxxxxx, Xxxxxxxxx LLP represents the Company, Holdings and
RAP in the transactions contemplated by the Restructuring Agreement. Each of the
Class A Sellers hereby covenants that the Escrow Agent may at all times
represent the Company, Holdings and RAP, even if a dispute or controversy arises
with respect to this Agreement or the Restructuring Agreement, or any other
matter whether or not related to this Agreement or the Restructuring Agreement,
and each party hereby waives any claim of conflict of interest it may now have,
or in the future obtain, against the Escrow Agent.
18. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without regard to its
principles of conflicts of laws. All actions and proceedings arising out of, or
relating to, this Agreement shall be heard and determined in any state or
federal court sitting in New York, New York. Each party hereto irrevocably
waives any objection on the grounds of venue, forum non-conveniens or any
similar grounds and irrevocably consents to service of process by mail or in any
other manner permitted by applicable law and consents to the jurisdiction of
said courts.
19. The address of the Escrow Agent for the purpose of notices and
other communications under this Agreement is as follows: Xxxxxxx, Xxxxxxxxx LLP,
0 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Etna, Esq. and
Xxxxxxx X. Xxxxxxxx, Esq. The address of the other parties to this Agreement
shall be as set forth in Section 9(c) of the Restructuring Agreement. All
notices and other communications hereunder shall be given and deemed received in
the manner provided for in Section 9(c) of the Restructuring Agreement.
-5-
IN WITNESS WHEREOF, the parties hereto have caused the execution and
delivery of this Agreement on the date first above written.
UBS WARBURG REAL ESTATE
SECURITIES INC.
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
[SIGNATURE PAGE TO ESCROW AGREEMENT]
-6-
STRATUM REALTY FUND, L.P.
By: Stratum Realty Company, L.P.,
its general partner
By: Stratum Principals, Inc.
its general partner
By:
-----------------------
Name:
Title:
RECKSON STRATEGIC
VENTURE PARTNERS, LLC
By: RSVP Holdings LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
-------------------
Name:
Title:
RSVP HOLDINGS LLC
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
-----------------------
Name:
Title:
[SIGNATURE PAGE TO ESCROW AGREEMENT]
-7-
RECKSON ASSET PARTNERS LLC
By: Reckson Strategic Venture Partners, LLC,
its managing member
By: RSVP Holdings LLC,
its managing member
By: RSI Fund Management LLC,
its managing member
By: FrontLine Capital Group,
its managing member
By:
-----------------------
Name:
Title
XXXXXXX, XXXXXXXXX LLP, as Escrow Agent
By:
---------------------------------------
Name:
Title:
[SIGNATURE PAGE TO ESCROW AGREEMENT]
-8-
SCHEDULE A
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Class A Sellers' Documents
Assignment and Assumption of Membership Interest in the Company executed by UBS
Assignment and Assumption of Membership Interest in the Company executed by
Stratum
Executed Release in the Form of Exhibit C-1(A) to the Restructuring Agreement
Executed Release in the Form of Exhibit C-1(B) to the Restructuring Agreement
Executed Release in the Form of Exhibit C-2(A) to the Restructuring Agreement
Executed Release in the Form of Exhibit C-2(B) to the Restructuring Agreement
Opinions of Counsel for the Class A Sellers
Resolutions of Class A Sellers required by clause (viii) of Paragraph 4(a) of
the Restructuring Agreement
Documents of Class A Sellers required by clause (ix) of Paragraph 4(a) of the
Restructuring Agreement
SCHEDULE B
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BANK: FLEET BANK
000 Xxxxx Xxxxxx, Xxxxxx Xxxxx Division
Xxx Xxxx, Xxx Xxxx 00000
ABA#: 021 200 339 ACCT#: 2553 00 9244
ACCT NAME: Xxxxxxx, Xxxxxxxxx LLP Attorney Trust Account
SCHEDULE C
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24.52842% to:
Stratum Realty Fund, LP
Citibank, N.A.
0000 Xxxxxxxx, Xxx Xxxx, XX 00000
ABA 021 0000 89
Account # 178 00 936
75.47158% to:
UBS AG
STAMFORD, CT
ABA# 000-000-000
ACCT: UBS WARBURG REAL ESTATE SECURITIES INC.
ACCT# 101WA256616-000
ATTN: PINDA ENG (000) 000-0000
SCHEDULE D
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Company Documents
Assignment and Assumption of Membership Interest in the Company executed the
assignee thereto (with UBS as other signatory thereto)
Assignment and Assumption of Membership Interest in the Company executed by the
assignee thereto (with Stratum as other signatory thereto)
Executed Release in the Form of Exhibit D-1(A) to the Restructuring Agreement
Executed Release in the Form of Exhibit D-1(B) to the Restructuring Agreement
Executed Release in the Form of Exhibit D-2(A) to the Restructuring Agreement
Executed Release in the Form of Exhibit D-2(B) to the Restructuring Agreement
Opinion of Counsel for the Company, Holdings and RAP
Resolutions of the Company, Holdings and RAP required by clause (viii) of
Paragraph 4(a) of the Restructuring Agreement
Documents of the Company, Holdings and RAP required by clause (ix) of Paragraph
4(a) of the Restructuring Agreement
SCHEDULE E
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Reckson Strategic Venture Partners, LLC
Operating Account # 304 224251
JPMorgan Chase
ABA # 000000000
EXHIBIT G
DISTRIBUTION LETTER
