Exhibit 10.4
SUPPLEMENT TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
RECKSON OPERATING PARTNERSHIP, L.P.
ESTABLISHING LTIP UNITS
OF
LIMITED PARTNERSHIP INTEREST
In accordance with Sections 4.2 and 14.1.B (2), (3) and (4) of the
Amended and Restated Agreement of Limited Partnership, dated as of June 2,
1995, as amended on December 6, 1995, April 13, 1998, April 20, 1998, June 30,
1998, May 24, 1999, June 2, 1999, October 13, 2000, and August 7, 2003 (the
"Partnership Agreement"), the Partnership Agreement is hereby supplemented
(the "Supplement") to establish a class of units of limited partnership
interest of Reckson Operating Partnership, L.P. (the "Partnership"), which
shall be designated "LTIP Units," having the rights, powers, privileges and
restrictions, qualifications and limitations as set forth below and which
shall be issued to the parties and in the amounts set forth on Schedule A
hereto. Capitalized terms used and not otherwise defined herein shall have the
meanings set forth in the Partnership Agreement.
WHEREAS, the Partnership desires to provide for equity incentives to
certain employees of the Company who provide services for the benefit of the
Partnership ("Grantees").
WHEREAS, pursuant to Section 4.2 of the Partnership Agreement, the
Partnership is issuing LTIP Units to the Grantees with the rights, powers,
privileges and restrictions, qualifications and limitations as set forth
below.
WHEREAS, pursuant to Section 4.2 and Sections 14.1.B (2), (3) and (4),
the General Partner is amending the Partnership Agreement to facilitate the
issuance of the LTIP Units.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Issuance of LTIP Units
(a) Pursuant to Section 4.2 of the Partnership Agreement, the
Partnership hereby issues 362,500 Partnership Interests (the "LTIP Units") to
the Grantees and in the amounts set forth on Schedule A hereto. The LTIP Units
shall have the rights, powers, privileges, restrictions, qualifications and
limitations (including, but not limited to, limitations on transfer) of
Limited Partners under the Partnership Agreement, as supplemented and amended
by the rights, powers, privileges, restrictions, qualifications and
limitations specified in Exhibit I hereto.
(b) The admission of the Grantees as Additional Limited Partners of
the Partnership shall become effective as of the date of this Supplement,
which shall also be the date upon which the names of the Grantees are recorded
on the books and records of the Partnership, and Exhibit A to the Partnership
Agreement is amended to reflect such admission.
Section 2. Amendments to Partnership Agreement.
Pursuant to Section 14.1.B(3) of the Partnership Agreement, the
General Partner, as general partner of the Partnership and as attorney-in-fact
for its Limited Partners, hereby amends the Partnership Agreement as follows:
(a) Article 1 of the Partnership Agreement is hereby amended by
inserting the following definitions in alphabetical order:
"Economic Capital Account Balance" has the meaning set forth in
Section 6.1.E.
"LTIP Units" means the units of the class of limited partnership
interest initially issued on December 27, 2004, having the rights,
powers, privileges, restrictions, qualifications and limitations
set forth in the Supplement to the Partnership Agreement dated as
of such date.
"Common Unit Economic Balance" has the meaning set forth in Section
6.1.E.
(b) Section 6.1 of the Partnership Agreement is amended by
appending the following new paragraph E:
E. Notwithstanding the provisions of Section 6.1.A above, but
subject to the prior allocation of income and gain under clauses
A(i), (ii) and (iii) above and to the terms of any Partnership Unit
Designation in respect of any class of Partnership Interests
ranking senior to the LTIP Units with respect to return of capital
or any preferential or priority return, any Liquidating Gains shall
first be allocated to the holders of LTIP Units until the Economic
Capital Account Balances of such holders, to the extent
attributable to their ownership of LTIP Units, are equal to (i) the
Common Unit Economic Balance, multiplied by (ii) the number of
their LTIP Units; provided that no such Liquidating Gains will be
allocated with respect to any particular LTIP Unit unless and to
the extent that the Common Unit Economic Balance exceeds the Common
Unit Economic Balance in existence at the time such LTIP Unit was
issued. For this purpose, "Liquidating Capital Gains" means net
capital gains realized in connection with the actual or
hypothetical sale of all or substantially all of the assets of the
Partnership, including but not limited to net capital gain realized
in connection with an adjustment to the Carrying Value of
Partnership assets under Section 704(b) of the Code. The "Economic
Capital Account Balances" of the holders of LTIP Units will be
equal to their Capital Account balances, plus the amount of their
shares of any Partner Minimum Gain or Partnership Minimum Gain, in
either case to the extent attributable to their ownership of LTIP
Units. Similarly, the
2
"Common Unit Economic Balance" shall mean (i) the Capital Account
Balance of the Company, plus the amount of the Company's share of
any Partner Minimum Gain or Partnership Minimum Gain, in either
case to the extent attributable to the Company's ownership of
Common Units and computed on a hypothetical basis after taking into
account all allocations through the date on which any allocation is
made under this Section 6.1.E, divided by (ii) the number of the
Company's Common Units. Any such allocations shall be made among
the LTIP Unitholders in proportion to the amounts required to be
allocated to each under this Section 6.1.E. The parties agree that
the intent of this Section 6.1.E is to make the Capital Account
balance associated with each LTIP Unit economically equivalent to
the Capital Account balance associated with the Company's Common
Units (on a per-Unit basis), but only if the Capital Account
balance associated with the Company's Common Units has increased on
a per-Unit basis since the issuance of the relevant LTIP Unit.
(c) Section 8.6A is hereby amended by appending the following
sentence:
Notwithstanding the foregoing, the Redemption Right shall not be
exercisable with respect to any Common Unit issued upon conversion
of an LTIP Unit until on or after the date that is two years after
the date on which the LTIP Unit was issued, provided however, that
the foregoing restriction shall not apply if the Redemption Right
is exercised by a LTIP Unit holder in connection with a transaction
that falls within the definition of a "change-in-control" under the
agreement or agreements to which the LTIP Units were issued to him
or her.
(d) The term "transfer" as used in Article 11 of the Partnership
Agreement shall not include any conversion of LTIP Units into Common Units.
(e) Section 1.D(2) of Exhibit B to the Partnership Agreement is
hereby amended by replacing the text thereof with the following:
(2) Such adjustments shall be made as of the following
times: (a) immediately prior to the acquisition of an
additional interest in the partnership by any new or
existing Partner in exchange for more than a de
minimis Capital Contribution; (b) immediately prior to
the acquisition of a more than de minimis additional
interest in the Partnership by any new or existing
Partner as consideration for the provision of services
to or for the benefit of the Partnership in a partner
capacity or in anticipation of becoming a partner; (c)
immediately prior to the distribution by the
Partnership to a Partner of more than a de minimis
amount of property as consideration for an interest in
the Partnership; and (d) immediately prior to the
liquidation of the Partnership within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g), provided,
however,
3
that adjustments pursuant to clauses (a), (b) and (c)
above shall be made only if the General Partner
determines that such adjustments are necessary or
appropriate to reflect the relative economic interests
of the Partners in the Partnership.
Section 3. Continuation of Partnership Agreement
The Partnership Agreement and this Supplement shall be read
together and shall have the same force and effect as if the provisions of the
Partnership Agreement and this Supplement (including Exhibit I hereto) were
contained in one document. Any provisions of the Partnership Agreement not
amended by this Supplement shall remain in full force and effect as provided
in the Partnership Agreement immediately prior to the date hereof.
4
IN WITNESS WHEREOF, the parties hereto have executed this Supplement to
the Partnership Agreement as of the 27th day of December, 2004.
GENERAL PARTNER:
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
EXISTING LIMITED PARTNERS:
By: Reckson Associates Realty Corp.,
as Attorney-in-Fact for the Limited Partners
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
GRANTEES:
*Individual Counterpart Signature Pages Attached.
5
RECKSON OPERATING PARTNERSHIP, L.P.
Limited Partner Signature Page
The undersigned, desiring to become one of the within named Limited
Partners of Reckson Operating Partnership, L.P. (the "Partnership") hereby
becomes a party to the Amended and Restated Agreement of Limited Partnership,
dated as of June 2, 1995 and amended through the date hereof, of the
Partnership, by and among Reckson Associates Realty Corp. and such Limited
Partners. The undersigned agrees that this signature page may be attached to
any counterpart of said Xxxxxxx and Restated Agreement of Limited Partnership.
Date: -------------------------------------------
Name of Limited Partner (please print)
-------------------------------------------
Signature
-------------------------------------------
Address
6
EXHIBIT I
RECKSON OPERATING PARTNERSHIP, L.P.
DESIGNATION OF THE RIGHTS, POWERS, PRIVILEGES,
RESTRICTIONS, QUALIFICATIONS AND LIMITATIONS
OF THE LTIP UNITS
The following are the terms of the LTIP Units established pursuant to
this Supplement:
1. Number. The maximum number of authorized LTIP Units shall be 362,500.
2. Vesting.
(a) Vesting, Generally. LTIP Units may, in the sole discretion
of the General Partner, be issued subject to vesting, forfeiture and
additional restrictions on transfer pursuant to the terms of an award vesting
or other similar agreement (a "Vesting Agreement"). The terms of any Vesting
Agreement may be modified by the General Partner from time to time in its sole
discretion, subject to any restrictions on amendment imposed by the relevant
Vesting Agreement or by the terms of any plan pursuant to which the LTIP Units
are issued, if applicable. LTIP Units that have vested under the terms of a
Vesting Agreement are referred to as "Vested LTIP Units"; all other LTIP Units
shall be treated as "Unvested LTIP Units." Subject to the terms of any Vesting
Agreement, a holder of LTIP Units shall be entitled to transfer his or her
LTIP Units to the same extent, and subject to the same restrictions as holders
of Common Units are entitled to transfer their Common Units pursuant to
Article 11 of the Agreement.
(b) Forfeiture or Transfer of Unvested LTIP Units. Unless
otherwise specified in the Vesting Agreement, upon the occurrence of any event
specified in a Vesting Agreement as resulting in either the right of the
Partnership or the Company to repurchase LTIP Units at a specified purchase
price or some other forfeiture of any LTIP Units, then if the Partnership or
the Company exercises such right to repurchase or upon the occurrence of the
circumstances resulting in such forfeiture, then the relevant LTIP Units shall
immediately, and without any further action, be treated as transferred to the
Company, if applicable, or cancelled and no longer outstanding for any
purpose. Unless otherwise specified in the Vesting Agreement, no consideration
or other payment shall be due with respect to any LTIP Units that have been
forfeited, other than any distributions declared with respect to a
Distribution Payment Record Date (as defined below) prior to the effective
date of the forfeiture. In connection with any repurchase or forfeiture of
LTIP Units, the balance of the portion of the Capital Account of the holder
that is attributable to all of his or her LTIP Units shall be reduced by the
amount, if any, by which it exceeds the target balance contemplated by Section
6.1.E of the Partnership Agreement, calculated with respect to the Holder's
remaining LTIP Units, if any.
Exh. I-1
(c) Legend. Any certificate evidencing an LTIP Unit shall bear
an appropriate legend indicating that additional terms, conditions and
restrictions on transfer, including without limitation any Vesting Agreement,
apply to the LTIP Unit.
3. Distributions.
(a) LTIP Distribution Amount. Commencing from the date on which
any LTIP Units are first issued (each, an "LTIP Issue Date"), for any
quarterly period holders of such LTIP Units shall be entitled to receive, if,
when and as authorized by the General Partner out of funds legally available
for the payment of distributions, cash distributions in an amount per unit
equal to the distribution payable on the Common Units for the corresponding
quarterly period (the "LTIP Distribution Amount"). Distributions on the LTIP
Units, if authorized, shall be payable quarterly in arrears on such dates as
may be authorized by the General Partner (any such date, a "Distribution
Payment Date"). In addition, LTIP Units shall be entitled to receive, if, when
and as authorized by the General Partner out of funds or other property
legally available for the payment of distributions, any special, extraordinary
or other distributions payable on the Common Units which may be made from time
to time in an amount per unit equal to the amount of any special,
extraordinary or other distributions payable on the Common Units.
Distributions will be payable to the holder of the LTIP Units with respect to
the LTIP Units held at the close of business on the applicable record date,
which shall be such date designated by the General Partner for the payment of
distributions that is not more than 30 nor less than 10 days prior to such
Distribution Payment Date (each, a "Distribution Payment Record Date"). With
regard to any distribution to the LTIP Units, the Distribution Payment Date
shall be the same date as the date fixed for the payment of distributions to
holders of Common Units and the Distribution Payment Record Date shall be the
same date set for the record date for holders of Common Units. In the event
that distributions to holders of Common Units for any period are paid on other
than a quarterly basis, for example, on a monthly basis, then distributions to
holders of the LTIP Units shall also be paid on that alternate basis.
(b) Prohibited Distributions. No distributions on the LTIP
Units shall be authorized by the General Partner or be paid or set apart for
payment by the Partnership at such time as the terms and provisions of any
agreement of the Partnership, including any agreement relating to its
indebtedness, prohibits such authorization, payment or setting apart for
payment or provides that such authorization, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or if such
authorization or payment shall be restricted or prohibited by law.
(c) Noncumulative Distributions. Distributions on the LTIP
Units will be noncumulative. If the General Partner does not authorize a
distribution on the LTIP Units payable on any Distribution Payment Date while
any LTIP Unit is outstanding, then the holder of the LTIP Units will have no
right to receive a distribution for that Distribution Payment Date, and the
Partnership will have no obligation to pay a distribution for that
Distribution Payment Date with respect to the LTIP Units.
Exh. I-2
(d) Parity with Common Units. No distributions, whether in
cash, securities or property, will be authorized or paid or set apart for
payment to holders of Common Units for any period unless for each LTIP Unit
outstanding, a distribution equal to the LTIP Distribution Amount with respect
to such period has been or contemporaneously is authorized and paid or
authorized and a sum sufficient for the payment thereof is set apart for such
payment to the holders of the LTIP Units for the then current distribution
period.
(e) Definition of Set Apart for Payment. As used in this
Section 3, "set apart for payment" shall be deemed to include, without any
further action, the following: the recording by the Partnership in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to an authorization of a distribution by the General Partner, the
allocation of funds to be so paid on any series or class of units of the
Partnership.
4. Adjustments.
The Partnership shall maintain at all times a one-to-one correspondence
between LTIP Units and Common Units for conversion, distribution and other
purposes, including without limitation complying with the following
procedures. If an Adjustment Event (as defined below) occurs, then the General
Partner shall make a corresponding adjustment to the LTIP Units to maintain a
one-for-one conversion and economic equivalence ratio between Common Units and
LTIP Units. The following shall be "Adjustment Events": (A) the Partnership
makes a distribution on all outstanding Common Units in Partnership Units, (B)
the Partnership subdivides the outstanding Common Units into a greater number
of units or combines the outstanding Common Units into a smaller number of
units, or (C) the Partnership issues any Partnership Units in exchange for its
outstanding Common Units by way of a reclassification or recapitalization of
its Common Units. If more than one Adjustment Event occurs, the adjustment to
the LTIP Units need be made only once using a single formula that takes into
account each and every Adjustment Event as if all Adjustment Events occurred
simultaneously. For the avoidance of doubt, the following shall not be
Adjustment Events: (x) the issuance of Partnership Units in a financing,
reorganization, acquisition or other similar business transaction, (y) the
issuance of Partnership Units pursuant to any employee benefit or compensation
plan or distribution reinvestment plan, or (z) the issuance of any Partnership
Units to the Company in respect of a capital contribution to the Partnership
of proceeds from the sale of securities by the Company. If the Partnership
takes an action affecting the Common Units other than actions specifically
described above as "Adjustment Events" and in the opinion of the General
Partner such action would require an adjustment to the LTIP Units to maintain
the one-to-one correspondence described above, the General Partner shall have
the right to make such adjustment to the LTIP Units, to the extent permitted
by law and by the terms of any plan pursuant to which the LTIP Units have been
issued, in such manner and at such time as the General Partner, in its sole
discretion, may determine to be appropriate under the circumstances. If an
adjustment is made to the LTIP Units as herein provided the Partnership shall
promptly file in the books and records of the Partnership an officer's
certificate setting forth such adjustment and a brief statement of
Exh. I-3
the facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment absent manifest error. Promptly
after filing of such certificate, the Partnership shall mail a notice to each
holder of LTIP Units setting forth the adjustment to his or her LTIP Units and
the effective date of such adjustment.
5. Ranking.
The LTIP Units shall rank on parity with the Common Units in all
respects.
6. No Liquidation Preference.
The LTIP Units shall have no liquidation preference.
7. Right to Convert LTIP Units into Common Units.
The following provisions of this Section 7, the "OPU Conversion Right,"
shall apply from and after the date that the Board of Directors of the Company
elects, by formal resolution, to cause the OPU Conversion Right to apply.
Until such time, the following provisions of this Section 7 shall not apply,
and holders of LTIP Units shall instead have the redemption right contemplated
by Section 9.
(a) Conversion Right. A holder of LTIP Units shall have the
right (the "Conversion Right"), at his or her option, at any time to convert
all or a portion of his or her Vested LTIP Units into Common Units; provided,
however, that a holder may not exercise the Conversion Right for fewer than
one thousand (1,000) Vested LTIP Units or, if such holder holds fewer than one
thousand Vested LTIP Units, all of the holder's Vested LTIP Units. Holders of
LTIP Units shall not have the right to convert Unvested LTIP Units into Common
Units until they become Vested LTIP Units; provided, however, that when a
holder of LTIP Units is notified of the expected occurrence of an event that
will cause his or her Unvested LTIP Units to become Vested LTIP Units, such
Person may give the Partnership a Conversion Notice conditioned upon and
effective as of the time of vesting, and such Conversion Notice, unless
subsequently revoked by the holder of the Units, shall be accepted by the
Partnership subject to such condition. The General Partner shall have the
right at any time to cause a conversion of Vested LTIP Units into Common
Units. In all cases, the conversion of any LTIP Units into Common Units shall
be subject to the conditions and procedures set forth in this Section 7.
(b) Number of Units Convertible. A holder of Vested LTIP Units
may convert such Units into an equal number of fully paid and non-assessable
Common Units, giving effect to all adjustments (if any) made pursuant to
Section 4. Notwithstanding the foregoing, in no event may a holder of Vested
LTIP Units convert a number of Vested LTIP Units that exceeds (x) the Economic
Capital Account Balance of such holder, to the extent attributable to its
ownership of LTIP Units, divided by (y) the Common Unit Economic Balance, in
each case as determined as of the effective date of conversion (the "Capital
Account Limitation").
Exh. I-4
(c) Notice. In order to exercise his or her Conversion Right, a
holder of LTIP Units shall deliver a notice (a "Conversion Notice") in the
form attached as Exhibit A to this Supplement (with a copy to the General
Partner) not less than 10 nor more than 60 days prior to a date (the
"Conversion Date") specified in such Conversion Notice; provided, however,
that if the General Partner has not given to the LTIP Unitholders notice of a
proposed or upcoming Transaction (as defined below) at least thirty (30) days
prior to the effective date of such Transaction, then holders of LTIP Unit
shall have the right to deliver a Conversion Notice until the earlier of (x)
the tenth (10th) day after such notice from the General Partner of a
Transaction or (y) the third business day immediately preceding the effective
date of such Transaction. A Conversion Notice shall be provided in the manner
provided in Section 15.1 of the Partnership Agreement. Each Holder of LTIP
Units covenants and agrees with the Partnership that all Vested LTIP Units to
be converted pursuant to this Section 7 shall be free and clear of all liens.
Notwithstanding anything herein to the contrary, a Holder of LTIP Units may
deliver a Redemption Notice pursuant to Section 8.6 of the Partnership
Agreement relating to those Common Units that will be issued to such holder
upon conversion of such LTIP Units into Common Units in advance of the
Conversion Date; provided, however, that the redemption of such Common Units
by the Partnership shall in no event take place until the Conversion Date. For
clarity, it is noted that the objective of this paragraph is to put a holder
of LTIP Units in a position where, if he or she so wishes, the Common Units
into which his or her Vested LTIP Units will be converted can be redeemed by
the Partnership simultaneously with such conversion, with the further
consequence that, if the Company elects to assume the Partnership's redemption
obligation with respect to such Common Units under Section 8.6 of the
Partnership Agreement by delivering to such holder REIT Shares rather than
cash, then such holder can have such REIT Xxxxxx issued to him or her
simultaneously with the conversion of his or her Vested LTIP Units into Common
Units. The General Partner shall cooperate with a holder of LTIP Units to
coordinate the timing of the different events described in the foregoing
sentence.
(d) Forced Conversion. The Partnership, at any time at the
election of the General Partner, may cause any number of Vested LTIP Units
held by a holder of LTIP Units to be converted (a "Forced Conversion") into an
equal number of Common Units, giving effect to all adjustments (if any) made
pursuant to Section 4; provided, that the Partnership may not cause Forced
Conversion of any LTIP Units that would not at the time be eligible for
conversion at the option of such LTIP Unitholder pursuant to paragraph (b)
above. In order to exercise its right of Forced Conversion, the Partnership
shall deliver a notice (a "Forced Conversion Notice") in the form attached as
Exhibit B to this Supplement to the applicable Holder not less than 10 nor
more than 60 days prior to the Conversion Date specified in such Forced
Conversion Notice. A Forced Conversion Notice shall be provided in the manner
provided in Section 15.1 of the Partnership Agreement.
(e) Conversion Procedures. A conversion of Vested LTIP Units
for which the Holder has given a Conversion Notice or the Partnership has
given a Forced Conversion Notice shall occur automatically after the close of
business on the applicable Conversion Date without any action on the part of
such holder of LTIP Units, as of which
Exh. I-5
time such holder of LTIP Units shall be credited on the books and records of
the Partnership with the issuance as of the opening of business on the next
day of the number of Common Units issuable upon such conversion. After the
conversion of LTIP Units as aforesaid, the Partnership shall deliver to such
holder of LTIP Units, upon his or her written request, a certificate of the
General Partner certifying the number of Common Units and remaining LTIP
Units, if any, held by such Person immediately after such conversion.
(f) Treatment of Capital Account. For purposes of making future
allocations under Section 6.1.E of the Agreement and applying the Capital
Account Limitation, the portion of the Economic Capital Account balance of the
applicable holder of LTIP Units that is treated as attributable to his or her
LTIP Units shall be reduced, as of the date of conversion, by the product of
the number of LTIP Units converted and the Common Unit Economic Balance.
(g) Mandatory Conversion in Connection with a Transaction. If
the Partnership or the General Partner shall be a party to any transaction
(including without limitation a merger, consolidation, unit exchange, self
tender offer for all or substantially all Common Units or other business
combination or reorganization, or sale of all or substantially all of the
Partnership's assets, but excluding any transaction which constitutes an
Adjustment Event), in each case as a result of which Common Units shall be
exchanged for or converted into the right, or the holders of such Units shall
otherwise be entitled, to receive cash, securities or other property or any
combination thereof (each of the foregoing being referred to herein as a
"Transaction"), then the General Partner shall, immediately prior to the
Transaction, exercise its right to cause a Forced Conversion with respect to
the maximum number of LTIP Units then eligible for conversion, taking into
account any allocations that occur in connection with the Transaction or that
would occur in connection with the Transaction if the assets of the
Partnership were sold at the Transaction price or, if applicable, at a value
determined by the General Partner in good faith using the value attributed to
the Partnership Units in the context of the Transaction (in which case the
Conversion Date shall be the effective date of the Transaction).
In anticipation of such Forced Conversion and the consummation of the
Transaction, the Partnership shall use commercially reasonable efforts to
cause each holder of LTIP Units to be afforded the right to receive in
connection with such Transaction in consideration for the Common Units into
which his or her LTIP Units will be converted the same kind and amount of
cash, securities and other property (or any combination thereof) receivable
upon the consummation of such Transaction by a holder of the same number of
Common Units, assuming such holder of Common Units is not a Person with which
the Partnership consolidated or into which the Partnership merged or which
merged into the Partnership or to which such sale or transfer was made, as the
case may be (a "Constituent Person"), or an affiliate of a Constituent Person.
In the event that holders of Common Units have the opportunity to elect the
form or type of consideration to be received upon consummation of the
Transaction, prior to such Transaction the General Partner shall give prompt
written notice to each holder of LTIP Units of such
Exh. I-6
election, and shall use commercially reasonable efforts to afford such holders
the right to elect, by written notice to the General Partner, the form or type
of consideration to be received upon conversion of each LTIP Unit held by such
holder into Common Units in connection with such Transaction. If a holder of
LTIP Units fails to make such an election, such Xxxxxx (and any of its
transferees) shall receive upon conversion of each LTIP Unit held him or her
(or by any of his or her transferees) the same kind and amount of
consideration that a holder of a Common Unit would receive if such Common Unit
Holder failed to make such an election.
Subject to the rights of the Partnership and the General Partner under
any Vesting Agreement and the terms of any plan under which LTIP Units are
issued, the Partnership shall use commercially reasonable effort to cause the
terms of any Transaction to be consistent with the provisions of this Section
7 and to enter into an agreement with the successor or purchasing entity, as
the case may be, for the benefit of any holders of LTIP Units whose LTIP Units
will not be converted into Common Units in connection with the Transaction
that will (i) contain provisions enabling the holders of LTIP Units that
remain outstanding after such Transaction to convert their LTIP Units into
securities as comparable as reasonably possible under the circumstances to the
Common Units and (ii) preserve as far as reasonably possible under the
circumstances the distribution, special allocation, conversion, and other
rights set forth in the Partnership Agreement for the benefit of the holders
of LTIP Units.
8. Redemption at the Option of the Partnership.
LTIP Units will not be redeemable at the option of the Partnership;
provided, however, that the foregoing shall not prohibit the Partnership from
repurchasing LTIP Units from the holder thereof if and to the extent such
holder agrees to sell such Units.
9. Redemption at Xxxxxx's Election.
The following provisions of this Section 9 shall apply until the
date that the OPU Conversion Right becomes effective as contemplated by
Section 7 above. From and after such date, the following provisions shall not
apply, and holders of LTIP Units shall instead have the OPU Conversion Right
contemplated by Section 7:
(a) Redemption Right. On or after the date that is the later of
(i) two (2) years after the LTIP Issuance Date of any Vested LTIP Unit and
(ii) six (6) months after the date on which such Vested LTIP Unit became a
Vested LTIP Unit, other than in connection with a change-in-control
transaction, the holder of any such Vested LTIP Unit shall have the right (the
"Redemption Right") to require the Partnership to redeem on a Specified
Redemption Date all or a portion of the LTIP Units held by such Limited
Partner at a redemption price per LTIP Unit equal to and in the form of the
Cash Amount to be paid by the Partnership. The Redemption Right shall be
exercised pursuant to a Notice of Redemption delivered to the Partnership in
the form attached as Exhibit C hereto (with a copy to the Company) by the
Limited Partner who is exercising the redemption right (the "Redeeming
Partner"). A Limited Partner may not exercise the Redemption Right for less
than one thousand (1,000) Vested LTIP Units at any one time
Exh. I-7
or, if such Limited Partner holds less than one thousand (1,000) Vested LTIP
Units, all of the Vested LTIP Units held by such Partner. The Redeeming
Partner shall have no right, with respect to any Partnership Units so
redeemed, to receive any distributions paid on or after the Specified
Redemption Date. The Assignee of any Limited Partner may exercise the rights
of such Limited Partner pursuant to this Section 9, and such Limited Partner
shall be deemed to have assigned such rights to such Assignee and shall be
bound by the exercise of such rights by such Assignee. In connection with any
exercise of such rights by an Assignee on behalf of a Limited Partner, the
Cash Amount shall be paid by the Partnership directly to such Assignee and not
to such Limited Partner. Any LTIP Units redeemed by the Partnership pursuant
to this Section 9 shall be cancelled upon such redemption.
For purposes of clarification, it is understood that the Cash Amount at
the date of this Supplement is based upon a Conversion Factor of 1.0 and that
such Conversion Factor may be adjusted from time to time as provided in the
Partnership Agreement.
(b) Number of Units Redeemable. Notwithstanding the foregoing
provisions of paragraph (a), in no event may a holder of Vested LTIP Units
redeem a number of Vested LTIP Units that exceeds (x) the Economic Capital
Account Balance of such holder to the extent attributable to its ownership of
LTIP Units, divided by (y) the Common Unit Economic Balance, in each case as
determined as of the effective date of the redemption.
(c) Treatment of Capital Account. For purposes of making future
allocations under Section 6.1.E of the Agreement and applying the Capital
Account Limitation, the portion of the Economic Capital Account balance of the
applicable holder of LTIP Units that is treated as attributable to his or her
LTIP Units shall be reduced, as of the date of conversion, by the product of
the number of LTIP Units converted and the Common Unit Economic Balance.
10. Voting Rights.
(a) Voting with Common Units. Holders of LTIP Units shall have
the right to vote on all matters submitted to a vote of the holders of Common
Units; holders of LTIP Units and Common Units shall vote together as a single
class, together with any other class or series of units of limited partnership
interest in the Partnership upon which like voting rights have been conferred.
In any matter in which the LTIP Units are entitled to vote, including an
action by written consent, each LTIP Unit shall be entitled to one vote.
(b) Special Approval Rights. In addition to, and not in
limitation of, the provisions of Section 10(a) above (and notwithstanding
anything appearing to be contrary in the Partnership Agreement), the Company
and/or the Partnership shall not, without the affirmative consent of the
holders of sixty-six and two-thirds percent (66 2/3%) of the then outstanding
LTIP Units, given in person or by proxy, either in writing or at a meeting,
take any action that would materially and adversely alter, change, modify or
amend the rights, powers or privileges of the LTIP Units; but subject in any
event to the following provisions: (i) no consent of the holders of LTIP Units
will be required if and to the extent that any such alteration, change,
modification or amendment would similarly alter, change, modify
Exh. I-8
or amend the rights, powers or privileges of the Common Units; (ii) with
respect to the occurrence of any merger, consolidation or other business
combination or reorganization, so long as the LTIP Units remain outstanding
with the terms thereof materially unchanged or, if the Partnership is not the
surviving entity in such transaction, are exchanged for a security of the
surviving entity with terms that are materially the same with respect to
rights to allocations, distributions, redemption, conversion and voting as the
LTIP Units and without any income, gain or loss expected to be recognized by
the holder upon the exchange for federal income tax purposes (and with the
terms of the Common Units or such other securities into which the LTIP Units
(or the substitute security therefor) are convertible materially the same with
respect to rights to allocations, distributions, redemption, conversion and
voting), the occurrence of any such event shall not be deemed to materially
and adversely alter, change, modify or amend the rights, powers or privileges
of the LTIP Units; (iii) any creation or issuance of any Common Units or of
any class of series of common or preferred units of the Partnership (whether
ranking junior to, on a parity with or senior to the LTIP Units with respect
to payment of distributions, redemption rights and the distribution of assets
upon liquidation, dissolution or winding up), which either (x) does not
require the consent of the holders of Common Units or (y) does require such
consent and is authorized by a vote of the holders of Common Units; and LTIP
Units voting together as a single class, together with any other class or
series of units of limited partnership interest in the Partnership upon which
like voting rights have been conferred, shall not be deemed to materially and
adversely alter, change, modify or amend the rights, powers or privileges of
the LTIP Units; and (iv) any waiver by the Partnership of restrictions or
limitations applicable to any outstanding LTIP Units with respect to any
holder or holders thereof shall not be deemed to materially and adversely
alter, change, modify or amend the rights, powers or privileges of the LTIP
Units with respect to other holders. The foregoing voting provisions will not
apply if, as of or prior to the time when the action with respect to which
such vote would otherwise be required will be taken or be effective, all
outstanding LTIP Units shall have been converted and/or redeemed, or provision
is made for such redemption and/or conversion to occur as of or prior to such
time.
Exh. I-9
Schedule A
----------
Name and Address Number of LTIP Units
---------------- --------------------
Xxxxx X. Xxxxxxx 104,167
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxxx 104,167
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Xxxxx X. Xxxxxxx 104,167
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Xxxx Xxxxxxx 33,333
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxxxx 16,666
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Sch. A
Exhibit A
Notice of Election by Partner to Convert
LTIP Units into Common Units
The undersigned holder of LTIP Units hereby irrevocably elects to
convert the number of Vested LTIP Units in Reckson Operating Partnership (the
"Partnership") set forth below into Common Units in accordance with the terms
of the Amended and Restated Agreement of Limited Partnership of the
Partnership, as amended. The undersigned hereby represents, warrants, and
certifies that the undersigned: (a) has title to such LTIP Units, free and
clear of the rights or interests of any other person or entity other than the
Partnership; (b) has the full right, power, and authority to cause the
conversion of such LTIP Units as provided herein; and (c) has obtained the
consent or approval of all persons or entities, if any, having the right to
consent or approve such conversion.
Name of Holder:
----------------------------------------------------------------
(Please Print: Exact Name as Registered with Partnership)
Number of LTIP Units to be Converted:
---------------------
Date of this Notice:
-------------------------------------
--------------------------------------------------------------------
(Signature of Holder: Sign Exact Name as Registered with Partnership)
--------------------------------------------------------------------
(Street Address)
--------------------------------------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
--------------------------------------------
Exh. A
Exhibit B
Notice of Election by Partnership to Force Conversion
of LTIP Units into Common Units
Reckson Operating Partnership (the "Partnership") hereby irrevocably
elects to cause the number of LTIP Units held by the holder of LTIP Units set
forth below to be converted into Common Units in accordance with the terms of
the Amended and Restated Agreement of Limited Partnership of the Partnership.
Name of Holder:
--------------------------------------------------------------
(Please Print: Exact Name as Registered with Partnership)
Number of LTIP Units to be Converted:
---------------------
Date of this Notice:
-------------------------------------
Exh. B
Exhibit C
Notice of Redemption
The undersigned Limited Partner hereby irrevocably requests Reckson
Operating Partnership, L.P., a Delaware limited partnership (the
"Partnership'") to redeem ________ Vested Units in the Partnership in
accordance with the terms of the Amended and Restated Agreement of Limited
Partnership of the Partnership and the Redemption Right referred to in the
Supplement thereto dated as of December 27, 2004; and the undersigned Limited
Partnership irrevocably (i) surrenders such Partnership Units and all right,
title and interest therein; and (ii) directs that the Cash Amount deliverable
upon exercise of the Redemption Right be delivered to the address specified
below. The undersigned hereby represents, warrants and certifies that the
undersigned: (a) has marketable and unencumbered title to such Vested LTIP
Units, free and clear of the rights or interests of any other person or entity
; (b) has the full right, power and authority to request such redemption and
surrender such Partnership Units as provided herein; and (c) has obtained the
consent or approval of all persons or entities, if any, having the right to
consent or approve such redemption and surrender of Units. The undersigned
Limited Partner further agrees that, in the event that any state or local
property tax is payable as a result of the transfer of its Partnership Units
to the Partnership, the undersigned Limited Partner shall assume and pay such
transfer tax.
Dated:
------------------------
Name of Limited Partner:
------------------------------------------
Please Print
------------------------------------------
(Signature of Limited Partner)
------------------------------------------
(Street Address)
------------------------------------------
(City, State, Zip Code)
Signature Guaranteed by:
------------------------------------------
Exh. C
