INTEREST TRANSFER AGREEMENT
This
INTEREST TRANSFER AGREEMENT (as amended, modified and supplemented from time
to
time, the “Agreement”)
dated
as of November 24, 2006 (the “Effective
Time”),
between Highcrest Investors Corp., a Delaware corporation (“Highcrest”),
Meadow Star Partner LLC, a Delaware limited liability company (“MS
Partner,”
and
together with Highcrest, the “Transferors”),
AREP
O&G Holdings LLC, a Delaware limited liability company (“O&G
LLC”)
and
AREH Oil & Gas Corp., a Delaware corporation (“O&G
Corp.”,
and
together with O&G LLC, the “Transferees”).
W I T N E S S E T H
WHEREAS,
Highcrest is the owner of ninety nine percent (99%) of the limited liability
company member interests (the “Majority Interest”)
of
Meadow Star LLC, a Delaware limited liability company (“Meadow
Star”);
WHEREAS,
MS Partner is the owner of one percent (1%) of the limited liability company
member interests (the “Minority Interest”,
and
together with the Majority Interests, the “Interests”)
of
Meadow Star;
WHEREAS,
the parties hereto and American Real Estate Partners L.P., a Delaware master
limited partnership (“AREP”),
the
indirect parent of the Transferees, have determined that the Transfer (as
hereinafter defined) is in the best interest of the parties hereto and will
facilitate AREP’s indirect participation in a potential transaction involving
the acquisition of the equity interests of Reckson Associates Realty Corp.
and
Reckson Operating Partnership, L.P.;
WHEREAS,
Highcrest desires to transfer as of the Effective Time its Interests, as set
forth on Exhibit A hereto, to O&G Corp. and O&G LLC, and each of O&G
Corp. and O&G LLC desire to accept such Interests as of the Effective Time
on the terms and conditions set forth herein (the “Highcrest
Transfer”);
WHEREAS,
MS Partner desires to transfer as of the Effective Time its Interests, as set
forth on Exhibit A hereto, to O&G LLC, and O&G LLC desires to accept
such Interests as of the Effective Time on the terms and conditions set forth
herein (the “MS
Partner Transfer”,
and
together with the Highcrest Transfer, the “Transfer”);
and
WHEREAS,
Meadow Star is a general partner and a limited partner of Rome Acquisition
Limited Partnership, a Delaware limited partnership (“Rome”),
and
is a party to the Agreement of Limited Partnership of Rome Acquisition Limited
Partnership (“Partnership
Agreement”).
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
in
this Agreement, and intending to be legally bound by the terms and conditions
of
this Agreement, the parties hereto hereby agree as follows:
Section
1. Definitions.
1.1. The
following capitalized terms shall have the following meanings:
“Asserted
Liability”
shall
have the meaning set forth in Section 5.3(1).
“Claims
Notice”
shall
have the meaning set forth in Section 5.3(1).
“Indemnifying
Party”
shall
have the meaning set forth in Section 5.3(1).
“Indemnitee”
shall
have the meaning set forth in Section 5.3(1).
“Lien”
means,
with respect to any asset, (i) any mortgage, deed of trust, lien, pledge, claim,
equity interest, participation interest, security interest or other charge
or
encumbrance of any kind in or on such asset and (ii) the interest of a vendor
or
a lessor under any conditional sale agreement, capital lease or title retention
agreement relating to such asset.
“Losses”
shall
have the meaning set forth in Section 5.1.
“Operating
Agreement”
shall
have the meaning set forth in Section 2.1.
1.2. The
headings or subheadings of Sections are inserted for convenience of reference
only and shall not in any way affect the interpretation or construction of
this
Agreement. References herein to any agreement or other instrument shall be
deemed to include references to such agreement or other instrument as varied,
amended, supplemented or replaced from time to time pursuant to the applicable
provisions thereof. Where the context permits, words importing the plural shall
include the singular and vice versa, and references to a person or “Person”
shall be construed as references to an individual, firm, company, corporation
or
unincorporated body of persons.
Section
2. Agreement
to Transfer and Assign; Delivery and Acceptance.
2.1. On
the
terms and subject to the conditions set forth herein, as of the Effective Time,
(i) each Transferor transfers, assigns, sets over and otherwise conveys to
the
applicable Transferee all of the Transferor’s right, title and interest in, to
and under the Interests, as set forth on Exhibit A hereto, whether arising
under
the Operating Agreement of Meadow Star LLC,
as the
same may be amended from time to time
(the
“Operating
Agreement”),
or
otherwise, and agrees to remain liable for any of the obligations and
liabilities in the foregoing incurred, due and payable prior to the Effective
Time and (ii) each Transferee accepts, assumes, takes over and succeeds to
all
of the applicable Transferor’s rights, title and interest in and to the
Interests, as set forth on Exhibit A hereto, and such Transferee covenants
and
agrees to discharge, perform and comply with, and to be bound by, all the terms,
conditions, provisions, obligations, covenants and duties of the applicable
Transferor in connection with the applicable Interests, including, without
limitation, those arising under the Operating Agreement,
from and
after the Effective Time, as if such Transferee were an original party
thereto.
2.2. Notwithstanding
Section 2.1 of this Agreement or any other provisions of this Agreement, to
the
extent the Transferees choose, in their absolute discretion, not to cause Meadow
Star to comply with its obligation to contribute its Initial Capital
Contribution (as defined in the Partnership Agreement) as set forth in Section
3.1 of the Partnership Agreement, the Transferors shall remain liable for
complying with such obligation set forth in Section 3.1 of the Partnership
Agreement.
2.3. Pursuant
to Section 7 of the Operating Agreement, upon the occurrence of the Transfer
hereunder, the Transferees shall each become a member of Meadow Star and shall
have all of the rights and powers and shall be subject to all of the duties
and
obligations of a member thereunder.
Section
3. Representations;
Warranties and Covenants.
3.1. Each
Transferor represents and warrants to the applicable Transferee
that:
(1) Organization;
Powers.
Such
Transferor (i) is duly organized, validly existing and in good standing under
the laws of the State of Delaware, (ii) has all requisite power to own its
property and assets and to carry on its business as now conducted and as
proposed to be conducted, (iii) is qualified to do business in every
jurisdiction where such qualification is required, except where the failure
to
so qualify would not have a material adverse effect on the performance by such
Transferor of its obligations under this Agreement, and (iv) has the power
and
authority to execute, deliver and perform its obligations under this
Agreement.
(2) Authorization;
Conflicts.
The
execution, delivery and performance by such Transferor of this Agreement and
the
performance of the transactions contemplated hereby and thereby (i) have been
duly authorized by all requisite action and (ii) will not (A) violate (1) any
provision of law, statute, rule or regulation the effect of which would be
to
cause or be reasonably expected to have a material adverse effect on the ability
of such Transferor to perform any of its obligations under this Agreement,
(2)
any order of any governmental authority having proper jurisdiction over such
Transferor, (3) any provision of the organizational documents of such
Transferor, or (4) any provision of any indenture, loan agreement or other
material agreement to which such Transferor is a party or by which it or any
of
its property is or may be bound, (B) be in conflict with, result in a breach
of
or constitute (alone or with notice or lapse of time or both) a default under
any such indenture, loan agreement or other material agreement or (C) result
in
the creation or imposition of any Lien upon or with respect to the
Interests.
(3) Enforceability.
This
Agreement has been duly authorized, executed and delivered by such Transferor
and constitutes the legal, valid and binding obligations of such Transferor
enforceable against such Transferor in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
(4) Title
and Ownership.
Such
Transferor is the sole legal and beneficial owner of its respective Interests
and has full power and lawful authority to transfer, convey and assign to the
applicable Transferee all of such Transferor’s right, title and interest in and
to its respective Interests in the manner contemplated hereby. The provisions
of
this Agreement are effective to convey to, and vest in, the applicable
Transferee ownership of the applicable Interests, and such Transferee shall
be
entitled to exercise all rights of a member under such Interests. After giving
effect to the consummation of the transactions contemplated hereby, neither
such
Transferor nor any person claiming under or through such Transferor has any
valid claim to or interest in such Interests.
(5) Liens.
The
Interests are free from all Liens. Upon execution of this Agreement, legal
title
to the Interests and all rights and benefits under the applicable Interests
shall pass to the applicable Transferee as of the Effective Time.
(6) Consents
and Approvals.
No
consent, approval or authorization from, or filing or declaration with, any
Person or any Governmental Authority is required to be made by such Transferor
to give the applicable Transferee a perfected ownership interest in the
applicable Interests or for the consummation of the transactions contemplated
hereby.
3.2. Each
Transferee represents and warrants to the applicable Transferor
that:
(1) Organization;
Powers.
Such
Transferee (i) is duly formed, validly existing and in good standing under
the
laws of the State of Delaware, (ii) has all requisite power and authority to
own
its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (iii) is qualified to do business in every
jurisdiction where such qualification is required, except where the failure
to
so qualify would not have a material adverse effect on the performance by such
Transferee of its obligations under this Agreement, and (iv) has the power
and
authority to execute, deliver and perform its obligations under this
Agreement.
(2) Authorization.
The
execution, delivery and performance by such Transferee of this Agreement and
the
performance of the transactions contemplated hereby and thereby (i) have been
duly authorized by all requisite action and (ii) will not (A) violate (1) any
provision of law, statute, rule or regulation the effect of which would be
to
cause or be reasonably expected to have a material adverse effect on the ability
of such Transferee to perform any of its obligations under this Agreement,
(2)
any order of any governmental authority having proper jurisdiction over such
Transferee, (3) any provision of the organizational documents of such
Transferee, or (4) any provision of any indenture, loan agreement or other
material agreement to which such Transferee is a party or by which it or any
of
its property is or may be bound, or (B) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default
under
any such indenture, loan agreement or other material agreement.
(3) Enforceability.
This
Agreement has been duly authorized, executed and delivered by such Transferee
and constitutes the legal, valid and binding obligations of such Transferee
enforceable against such Transferee in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors, rights generally and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
(4) Consents
and Approvals.
No
consent, approval or authorization from, or filing or declaration with, any
Person or any Governmental Authority is required to be made by the applicable
Transferor to give such Transferee a perfected ownership interest in the
applicable Interests or for the consummation of the transactions contemplated
hereby.
3.3. All
representations, warranties, covenants and agreements of the parties contained
herein shall survive the execution and delivery of this Agreement and the
closing hereunder.
Section
4. Further
Assurances.
4.1. Each
Transferor agrees that at any time and from time to time at Transferees’
expense, each Transferor shall promptly and duly execute, deliver, file,
register and record any and all such further instruments and documents and
take
such further actions as required by law or as either Transferee may reasonably
request in writing in order (i) to protect the title and ownership of such
Transferee to its respective Interests and (ii) to permit such Transferee to
obtain the full benefits of this Agreement and the rights and powers herein
granted.
Section
5. Indemnification;
Limitation on Liability.
5.1. Obligation
of the Transferors To Indemnify.
The
Transferors agree to indemnify, defend and hold harmless the Transferees (and
their respective directors, officers, employees, affiliates, successors and
assigns) from and against all losses, liabilities, damages, deficiencies,
demands, claims, actions, judgments or causes of action, assessments, costs
or
expenses (including, without limitation, interest, penalties and reasonable
attorneys’ fees and disbursements) (“Losses”)
based
upon, arising out of, or otherwise in respect of (i) any inaccuracy in or any
breach of any representation, warranty, covenant or agreement of such Transferor
contained in this Agreement, and (ii) the ownership of the Interests prior
to
the Effective Date. After the Effective Date, the Transferees’ sole remedy for
any breach of any representation or warranty of the Transferors expressly set
forth in this Agreement shall be for indemnification pursuant to this Section
5.
5.2. Obligation
of the Transferees To Indemnify.
The
Transferees agree to indemnify, defend and hold harmless the Transferors (and
their respective directors, officers, employees, affiliates, successors and
assigns) from and against all Losses based upon, arising out of, or otherwise
in
respect of any inaccuracy in or any breach of (i) any representation, warranty,
covenant or agreement of the Transferees contained in this Agreement and (ii)
the ownership of the Interests on and after the Effective Date. After the
Effective Date, the Transferors’ sole remedy for any breach of any
representation or warranty of the Transferees expressly set forth in this
Agreement shall be for indemnification pursuant to this Section 5.
5.3. Notice
and Opportunity To Defend.
(1) Notice
of Asserted Liability.
Promptly after receipt by any party hereto (the “Indemnitee”)
of
notice of any demand, claim or circumstances, which, with a lapse of time,
would
or might give rise to a claim or the commencement (or threatened commencement)
of any action, proceeding or investigation (the “Asserted
Liability”)
that
may result in a Loss, the Indemnitee shall give notice thereof (the
“Claims
Notice”)
to any
other party obligated to provide indemnification pursuant to Section 5.1 or
5.2
(“Indemnifying
Party”).
The
Claims Notice shall describe the Asserted Liability in reasonable detail and
shall indicate the amount (estimated if necessary and to the extent feasible)
of
the Loss that has been or may be suffered by the Indemnitee.
(2) Opportunity
To Defend.
The
Indemnifying Party may elect to compromise or defend, at its own expense and
by
its own counsel, any Asserted Liability. If the Indemnifying Party elects to
compromise or defend such Asserted Liability, it shall, within 30 days (or
sooner, if the nature of the Asserted Liability so requires), notify the
Indemnitee of its intent to do so, and the Indemnitee shall cooperate, at the
expense of the Indemnifying Party, in the compromise of, or defense against,
such Asserted Liability. If the Indemnifying Party elects not to compromise
or
defend the Asserted Liability, fails to notify the Indemnitee of its election
as
herein provided or contests its obligation to pay an indemnity under this
Agreement, the Indemnitee may pay, compromise or defend such Asserted Liability.
Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnitee
may settle or compromise any claim over the objection of the other; provided,
however,
that
consent to settlement or compromise shall not be unreasonably withheld. In
any
event, the Indemnitee and the Indemnifying Party may participate, at their
own
expense, in the defense of any such Asserted Liability. If the Indemnifying
Party chooses to defend any claim, the Indemnitee shall make available to the
Indemnifying Party any books, records or other documents within its control
that
are necessary or appropriate for such defense.
Section
6. Notices.
Any
notice or communication under this Agreement shall be sufficiently given if
in
writing and mailed by first-class mail, postage prepaid, or delivered in person
or by telex, telecopier or overnight air courier guaranteeing next day delivery,
addressed as follows:
If
to
Highcrest or MS Partners:
Icahn
Associates Corp.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Legal Department
Telecopy
No.: (000) 000-0000
If
to
O&G Corp. or O&G LLC:
c/o
American Real Estate Holdings Limited Partnership
White
Plains Plaza
000
Xxxxxxxx Xxxxxx - Xxxxx 0000
Xxxxx
Xxxxxx, XX 00000
Attention:
President
Telecopy
No.: (000) 000-0000
Either
of
the above parties by notice to the other party may designate additional or
different addresses for subsequent notices or communications. All notices and
communications shall be deemed to have been duly given: at the time of delivery
by hand, if personally delivered; five business days after being deposited
in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopier; and the next business day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next
day
delivery. If a notice or communication is given in the manner provided above
within the time prescribed, it is duly given, whether or not such party receives
it.
Section
7. Amendment.
Neither
this Agreement nor any of the terms hereof may be terminated, amended,
supplemented, waived or modified, except by an instrument in writing signed
by
the Transferees and the Transferors.
Section
8. Successors
and Assigns.
All
covenants and agreements in this Agreement made by or on behalf of the parties
hereto shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not.
Section
9. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and such counterparts together shall
constitute but one Agreement.
Section
10. GOVERNING
LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) IN
ACCORDANCE WITH SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW, THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES)
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
(b) ANY
LEGAL
SUIT, ACTION OR PROCEEDING AGAINST THE TRANSFEREE OR THE TRANSFEROR ARISING
OUT
OF OR RELATING TO THIS AGREEMENT, OR ANY TRANSACTION CONTEMPLATED HEREBY, MAY
BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXX XX
XXX
XXXX AND THE TRANSFEREES AND THE TRANSFERORS EACH HEREBY WAIVE ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND, SOLELY FOR THE PURPOSES OF ENFORCING THIS AGREEMENT,
THE TRANSFEREE AND THE TRANSFEROR EACH HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH
OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, AS AGAINST THE OTHER PARTIES
HERETO, ANY RIGHTS IT MAY HAVE TO A JURY TRIAL IN RESPECT OF ANY CIVIL ACTION
OR
PROCEEDING (WHETHER ARISING IN CONTRACT OR TORT OR OTHERWISE), INCLUDING ANY
COUNTERCLAIM, ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY OTHER OPERATIVE
DOCUMENT, INCLUDING IN RESPECT OF THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT
HEREOF OR THEREOF.
Section
11. Severability.
Any
provision of this Agreement that may be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof so long as the economic or legal substance for the
transactions contemplated thereby is not affected in any manner adverse to
any
party. Any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
[remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have entered into this Agreement as of
the
date first above written.
TRANSFERORS:
HIGHCREST
INVESTORS CORP.
By:
/s/ Xxxxx Cozza_____________________________
Name: Xxxxx
Xxxxx
Title: Vice
President
MEADOW
STAR PARTNER LLC
By:
/s/ Xxxxx Cozza_____________________________
Name: Xxxxx
Xxxxx
Title:
Treasurer
TRANSFEREES:
AREP
O&G
HOLDINGS LLC
By:
AREP
Oil & Gas Holdings LLC, its sole member
By:
American Real Estate Holdings Limited Partnership, its sole member
By:
American Property Investors, Inc., its general partner
By:
/s/ Hillel Moerman_____________________________
Name: Xxxxxx
Xxxxxxx
Title: Chief
Financial Officer; Treasurer
AREH
OIL
&
GAS CORP.
By:
/s/ Hillel Moerman_____________________________
Name:
Xxxxxx
Xxxxxxx
Title:
Chief
Financial Officer; Treasurer
[Interest
Transfer Agreement, effective as of November 24, 2006, between Highcrest
Investors Corp. and Meadow Star Partner LLC (as transferors) and AREP O&G
Holdings LLC and AREH Oil & Gas Corp. (as transferees) Re: Meadow Star
LLC]
EXHIBIT
A
Transfers
By Highcrest Investors Corp.
|
Transferee
|
Percentage
of Interests
|
|
AREH
Oil & Gas Corp.
|
95
%
|
|
AREP
O&G Holdings LLC
|
4
%
|
Transfers
By Meadow Star Partner LLC
|
Transferee
|
Percentage
of Interests
|
|
AREP
O&G Holdings LLC
|
1
%
|
