EXHIBIT 10.15
RECKSON ASSOCIATES REALTY CORP.
AND
METROPOLITAN PARTNERS LLC
November 20, 2002
Xx. Xxxxxx X. "Xxx" Xxxxxxxx III
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: Employment Agreement
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Dear Xxx:
We are pleased to amend and restate your January 18, 1999
Employment Agreement, as supplemented by the agreement dated September 7, 2000
(collectively, the "Prior Agreement"), and continue your position as a Senior
Vice President of Reckson Associates Realty Corp. (the "Company") and as a
Managing Director of Metropolitan Partners LLC ("Metropolitan"). It is
understood that your Managing Director position will be the senior executive
position of Metropolitan or, if there is an acquisition, merger or other similar
significant transaction, the co-senior executive position of Metropolitan for a
transition period of not more than two years (and after such two year transition
period, such position be the senior executive position of Metropolitan).
The terms of your employment are as follows:
EFFECTIVE DATE. You will begin working full-time at the
Company and at Metropolitan pursuant to the terms and conditions of this
agreement (this "Agreement") on January 1, 2003 (the "Effective Date").
TERM. The terms of your employment described in this letter
will be effective on the Effective Date and applicable until December 31, 2006
and this Agreement shall supersede the Prior Agreement except as expressly set
forth to the contrary herein. The parties may renew or extend the term of this
Agreement upon the mutual written consent of the parties hereto. The initial
term of this Agreement, as it may be so extended, is referred to herein as the
"Employment Period".
DUTIES, RESPONSIBILITIES AND REPORTING RELATIONSHIPS. During
the Employment Period, you will report to the Chief Executive Officer (or
co-Chief Executive Officers) and the President (or co-Presidents) of the
Company. You will have such duties and responsibilities as are customary for an
executive in your position (including, but not limited to, annually approving
the business plan for Metropolitan in Manhattan, New York), and you will devote
substantially
all of your business time and efforts (other than absences due to illness or
vacation) to the performance of such duties.
PLACE OF PERFORMANCE. The principal place of performance of
your duties will be the Company's executive offices in Manhattan, New York. You
will be available at the Company's Melville, New York offices from time to time
as reasonably requested by the Company.
BASE SALARY. Your base salary will be $400,000 per year ("Base
Salary"). This salary will be payable in accordance with the Company's regular
payroll practices and will be reviewed annually for increase, but not decrease.
If your Base Salary is increased at any time during the Employment Period, such
increased amount shall constitute your Base Salary for all purposes of this
Agreement.
BONUS. You will be eligible to receive an annual cash bonus (a
"Cash Bonus") in an amount determined by the Company's Compensation Committee
based on the fiscal performance and prospects of the Company and your personal
performance for such year. Notwithstanding the forgoing, your Cash Bonus for any
specified year will not be less than $350,000, unless each individual holding an
office of executive vice president of the Company, Chief Financial Officer of
the Company or an office senior to any such position (each, an "Executive
Officer" and, collectively, the "Executive Officers") receives an annual
compensation bonus during such year that is less than 87.5% of such Executive
Officer's annual base salary for such year (a "Low Bonus Condition"). If there
is a Low Bonus Condition during any specified year, you will receive a Cash
Bonus in an amount equal to (A) the greatest percentage of the annual
compensation bonus awarded to any Executive Officer (determined as the aggregate
amount of the annual compensation bonus paid to an Executive Officer for such
specified year, divided by the aggregate base salary of such Executive Officer
for such specified year), (B) multiplied by your Base Salary for such specified
year. For the purpose of determining the amount of an annual compensation bonus
paid to any Executive Officer during any specified year, the fair market value,
determined in good faith by the Compensation Committee, of any consideration
paid or delivered to such Executive Officer specifically in lieu of any cash
bonus shall be included in the amount of such Executive Officer's annual
compensation bonus. The term "annual compensation bonus" shall not include any
one-time bonuses, special payments, payments for restrictive covenants or any
other cash award for a specific purpose that is not compensation for the
Executive Officer's performance during such year- for example, signing bonuses,
severance bonuses, payments or recurring payments in consideration for a
covenant to not compete or payments relating to loans or any forgiveness of
loans.
LONG-TERM INCENTIVE COMPENSATION. You will be eligible to
participate in the Long-Term Incentive Compensation Plan ("LTIP") that has been
approved by the Company's Board of Directors; a general description of your Core
Awards ("Core Awards") and Targeted Awards ("Special Awards") under the LTIP is
attached hereto as Exhibit I.
EMPLOYEE BENEFIT PLANS. You will be eligible to participate in
the Company's tax-qualified retirement plans and group health, life insurance
and disability plans, subject to the
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terms of such plans. You also will be eligible to participate in all employee
benefit plans generally made available to similarly situated senior executives.
VACATION DAYS. You will be entitled to 15 paid vacation days
and five personal days per year, earned pro rata during each year. Such vacation
and/or personal days may be taken in accordance with the Company's regular
practices for similarly situated senior executives.
AUTOMOBILE ALLOWANCE. You will be entitled reimbursement of
automobile related expenses commensurate with the kind and amount of such
reimbursements to other Managing Directors, which in no event shall be less than
$824 per month.
SICK DAYS. You will be entitled to paid sick days in
accordance with the Company's regular practices for similarly situated senior
executives.
REIMBURSEMENT OF BUSINESS EXPENSES. You will be entitled to
incur reasonable business expenses in carrying out your duties and
responsibilities under this Agreement, and the Company or Metropolitan (as
applicable) will reimburse you for such expenses, subject to, and in accordance
with, the terms and conditions of the Company's policy regarding such
reimbursements as in effect from time to time.
OFFICE SPACE, SERVICES AND FACILITIES. You will be provided
with such office space, services and facilities as are customarily provided by
the Company and Metropolitan to similarly situated senior executives.
CERTAIN TERMS OF THE PRIOR AGREEMENT. The Company will
continue to forgive the amount of your Tax Loans and Company Loans (each, as
defined by and provided under the Prior Agreement) in accordance with the terms
and conditions of the Prior Agreement, provided that any loans to be forgiven on
or prior to March 1, 2003 shall be forgiven on the Effective Date, any Tax Loan
to be made by the Company to you as a result of the forgiveness of a Company
Loan on the Effective Date shall be made on or promptly after the Effective Date
and you shall receive the stock of the Company to be released to you on such
scheduled date of loan forgiveness on the Effective Date. The Company will
continue to provide you with Tax Loans with respect to forgiveness of your
Company Loans (including any such loans forgiven on the Effective Date) in
accordance with the terms of the Prior Agreement.
TAX LOAN FORGIVENESS. All Tax Loans outstanding on the
expiration of this Agreement shall be forgiven by the Company on January 1,
2007. Notwithstanding any provision of this Agreement to the contrary, the
forgiveness of any Tax Loan contemplated by this Agreement shall not forgive any
interest on such loan that was not paid by you as and when due.
TERMINATION OF EMPLOYMENT.
- FOR CAUSE OR WITHOUT GOOD REASON. If the Company or
Metropolitan terminates your employment for Cause (as defined below) or you
terminate your employment without Good Reason (as defined below), then, except
as otherwise provided by applicable law or the terms of applicable benefit
plans, you will not receive any compensation or benefits from
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the Company or Metropolitan (other than any accrued but unpaid Base Salary and
any awarded but unpaid Cash Bonus) after the date of such termination. In
addition, if the Company or Metropolitan terminates your employment for Cause,
then (i) any Company Options (as defined by and awarded to you under the Prior
Agreement and the Company's 1998 Stock Option Plan) that have not yet been
exercised and any unvested Core Awards and unvested Special Awards will
immediately be cancelled and forfeited, and (ii) any Tax Loans will immediately
be due and payable. If you resign for any reason other than (A) your bonus for
fiscal year 2002 is less than 100% of your base salary for such year and your
resignation is tendered prior to Xxxxx 00, 0000, (X) Good Reason, (C) a Post
Acquisition Reason, or (D) an Unacceptable Bonus Payment, you agree that prior
to terminating your employment, you will deliver to the Company notice (the
"Resignation Notice") at least 90 days prior to the proposed effective date of
such resignation. The Company shall have the right to terminate you on any date
after such notice is delivered. Any such termination by the Company will not be
deemed to be a termination of your employment by the Company without Cause (and
the date of such termination shall be the date of your termination without Good
Reason). Within 10 days after delivery of the Resignation Notice, the Company
will notify you of the period it desires to continue your employment (which
shall not expire later than the expiration of such 90 day period). Your
employment shall be continued for such period unless the Company accelerates
your termination date due to your performance being disruptive to the operations
of the Company. The Restrictive Period (as defined below) shall be reduced by
the number of days that you are still employed with the Company after delivery
of the Resignation Notice.
- FOR DEATH OR DISABILITY. If the Company or Metropolitan
terminates your employment for Disability (as defined below) or your employment
terminates by reason of your death, then, as of the date of such termination,
(i) you will receive a lump sum payment equal to one month's base salary, plus a
pro rata bonus for the year of termination, less any applicable withholding,
(ii) any remaining Company Options will vest and be exercisable in accordance
with the terms of the Company's 1998 Stock Option Plan, (iii) any existing Tax
Loans will immediately be forgiven, but no new Tax Loan will be made based on
such forgiveness, (iv) any unvested Core Awards and unvested Special Awards will
immediately be cancelled and forfeited, and (v) except as otherwise provided by
applicable law or the terms of applicable benefit plans, you will not receive
any other compensation or benefits from the Company or Metropolitan (other than
any accrued but unpaid Base Salary and any awarded but unpaid Cash Bonus) after
the date of such termination.
- WITHOUT CAUSE OR FOR GOOD REASON. If you terminate your
employment for Good Reason or the Company or Metropolitan terminates your
employment for any reason other than Cause or Disability, then, as of the date
of such termination, (i) you will receive a cash lump sum payment equal to the
Cash Payment Amount (as defined below), less any applicable withholding, (ii)
any remaining Company Options will immediately become vested and exercisable and
remain exercisable until the first anniversary of such termination, (iii) any
Tax Loans will immediately be forgiven, (iv) any unvested Core Awards and any
unvested Special Awards will immediately be cancelled and forfeited, (v) your
coverage under the Company's group health, life insurance and disability plans
will continue (subject to your continued timely payment of any regular employee
contributions) until the earlier of (A) the first anniversary of such
termination or (B) the date on which you become eligible for substantially
similar replacement coverage from a subsequent employer, (vi) you will receive a
gross-up payment for
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(A) any excise taxes imposed on you under Sections 280G and 4999 of the Internal
Revenue Code relating to any of the payments and benefits provided under this
sentence and (B) any income taxes and additional excise taxes on such gross-up
payment, with the amount of such gross-up payment to be determined by a
nationally recognized accountant mutually acceptable to the parties and paid for
by the Company, and (vii) except as otherwise provided by applicable law or the
terms of applicable benefit plans, you will not receive any other compensation
or benefits from the Company or Metropolitan (other than any accrued but unpaid
Base Salary and any awarded but unpaid Cash Bonus) after the date of such
termination. For the purposes of this Agreement, the term "Cash Payment Amount"
shall mean $2,500,000 if your termination without Cause or resignation for Good
Reason is on or prior to December 31, 2003 or $2,000,000 if such termination or
resignation is after such date.
- AFTER CHANGE OF CONTROL. If after a Change of Control you
offer and are willing to continue in your employment solely for the same cash
compensation (Base Salary and Cash Bonus) set forth herein for at least one year
after the closing of the event of such Change of Control, then the following
will apply:
(i) if the Company (or its successor) elects to continue your
employment for such cash compensation, then, in addition to the
payments of your Base Salary and Cash Bonus in accordance with this
Agreement and any other compensation that you and the Company (or its
successor) may mutually agree, unless within one year after a Change of
Control you resign for any reason or the Company (or its successor)
terminates your employment for any reason (A) you will receive at the
end of such one year period a cash lump sum payment equal to $2
million, plus any accrued and unpaid Base Salary plus any awarded but
unpaid Cash Bonus, less any applicable withholding; and (B) any Tax
Loans outstanding at the end of such year shall be forgiven at the end
of such year; and (C) any remaining Company Options will vest and be
exercisable in accordance with the terms of the Company's 1998 Stock
Option Plan.
(ii) notwithstanding clause (i), if the Company (or its
successor) elects to continue your employment for such cash
compensation and terminates your employment within such year without
Cause or during such year you resign for a Post Acquisition Reason,
then (A) you will receive on or promptly after the date of such
termination or resignation (but not later than thirty days) a cash lump
sum payment equal to $2 million, plus any accrued and unpaid Base
Salary plus any awarded but unpaid Cash Bonus, less any applicable
withholding; and (B) any Tax Loans outstanding as of the date of such
termination or resignation shall be forgiven on such date; and (C) any
remaining Company Options will vest and be exercisable in accordance
with the terms of the Company's 1998 Stock Option Plan.
(iii) if the Company (or its successor) elects to not continue
your employment, then (A) promptly after such Change of Control (but
not later than thirty days) you will receive a cash lump sum payment
equal to $2 million, plus any accrued and unpaid Base Salary plus any
awarded but unpaid Cash Bonus, less any applicable withholding; and (B)
any Tax Loans outstanding as of the date of such Change of Control
shall be forgiven as of date of your separation with the Company; and
(C) any remaining Company
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Options will vest and be exercisable in accordance with the terms of
the Company's 1998 Stock Option Plan.
After a Change of Control you will not receive any additional
vesting under the LTIP and all unvested Core Awards and unvested
Special Awards will be cancelled and forfeited as of the date of such
Change of Control.
Your receipt of any compensation and benefits upon the
termination of your employment hereunder (or the termination of the one year
period after a Change of Control, if applicable) is expressly conditioned upon
your timely execution of and agreement to be bound by a waiver and general
release any and all claims (other than claims for the compensation and benefits
payable under the four preceding paragraphs and other than any claims that do
arise from your employment hereunder, for example, any personal injury or
workers' compensation claims, to the extent that such claims are made known by
you to the Company in writing prior to your termination) arising out of or
relating to your employment and termination of employment. Such waiver and
release must be made in a form reasonably satisfactory to the Company and
Metropolitan, and shall run to the Company, Metropolitan, each of their
affiliates, and all of their respective officers, directors, employees, agents,
successors and assigns.
CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETITION. During
the period of your employment and thereafter, you will not disclose any
confidential information or trade secrets of the Company, Metropolitan and their
respective affiliates (the "Company Group") without the prior written consent of
the Company. In addition, upon or as soon as possible following, the termination
of your employment, you will return any and all property and embodiments of
information of the Company Group in your possession or subject to your control.
During the Restrictive Period (as defined below), you will
not, without the prior written consent of the Board of Directors of the Company
and of Metropolitan, directly or indirectly (A) engage, participate or assist,
as an owner, partner, employee, consultant, director, officer, trustee or agent,
in any business that engages or attempts to engage in, directly or indirectly,
the acquisition, development, construction, operation, management or leasing of
any industrial or office real estate property anywhere in New York, New Jersey
or Connecticut, provided that the foregoing shall not prohibit your ownership of
less than 5% of any class of publicly traded securities issued by any such
business, or (B) intentionally interfere with, disrupt or attempt to disrupt the
relationship, contractual or otherwise, between any of the Company Group and any
customer, tenant, supplier, contractor, lender, employee or governmental agency
or authority. For the purposes of this Agreement the term "Restrictive Period"
shall mean the period of your employment and an additional six (6) months if (i)
the Company or Metropolitan terminates your employment for Cause; (ii) you
resign for any reason other than (A) your bonus for fiscal year 2002 is less
than 100% of your base salary for such year and your resignation is tendered
prior to Xxxxx 00, 0000, (X) Good Reason, (C) a Post Acquisition Reason, or (D)
an Unacceptable Bonus Payment.
During the period of your employment and for a period of one
year thereafter, you will not, without the prior written consent of the Board of
Directors of the Company and of Metropolitan, directly or indirectly solicit,
hire or retain any employee or consultant of any of the
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Company Group or persuade or entice any such employee or consultant to terminate
or lessen the extent of his, her or its relationship with any of the Company
Group.
ATTORNEYS' FEES TO NEGOTIATE AND ENFORCE. As soon as
practicable after the Effective Date, the Company will pay or reimburse the
attorneys' fees and costs not in excess of $7,500 incurred by you in connection
with the negotiation and preparation of this letter. In addition, if you prevail
in any action, suit or other dispute regarding the enforcement of the terms of
this letter, the Company will promptly pay or reimburse all reasonable
attorneys' fees and costs incurred by you in connection with such action, suit
or dispute.
REPRESENTATIONS AND ADJUSTMENT OF EQUITY-BASED COMPENSATION.
The Company and Metropolitan each represents and warrants that it is fully
authorized and empowered to enter into this Agreement and that the performance
of its obligations under this Agreement will not violate any agreement between
it and any other person, firm or organization.
You represent and warrant that no agreement exists between you
and any other person, firm or organization that would be violated by the
performance of you obligations under this Agreement.
DEFINITIONS. For purposes of this Agreement:
a. "Cause" means a finding by two-thirds of the Board of
Directors of the Company that you (i) engaged in willful and knowing
misconduct that was economically harmful to the Company or
Metropolitan, (ii) willfully failed to perform any lawfully assigned
duties (other than as a result of Disability) and did not correct such
failure within 10 days of notice from the Company or Metropolitan, as
applicable, (iii) have been convicted of any felony or other illegal
act that was economically harmful to the Company or Metropolitan, (iv)
willfully committed any material violation of any material policy of
the Company or Metropolitan that was economically harmful to the
Company or Metropolitan, or (v) willfully or knowingly made a false or
materially misleading representation in the preceding paragraph of this
Agreement or willfully or knowingly failed to give any notice required
thereunder, provided, however, that a finding of Cause will not become
effective unless and until such Board of Directors gives you reasonable
written notice that it is considering making such finding and a
reasonable opportunity to be heard by the full Board of Directors.
b. A "Change in Control" will be deemed to have occurred with
respect to Metropolitan on any date after the Effective Date on which
neither the Company nor any of its subsidiaries or affiliates is the
controlling general partner, managing member or equivalent thereof of
Metropolitan. A "Change in Control" will be deemed to have occurred
with respect to the Company after the Effective Date if:
(i) any Person, together with all "affiliates" and
"associates" (as such terms are defined in Rule 12b-2
under the Securities Exchange Act of 1934 (the "Exchange
Act")) of such Person, shall become the "beneficial
owner" (as such term is defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of
the Company representing 50% or more of
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either (A) the combined voting power of the Company's
then outstanding securities having the right to vote in
an election of the Company's Board of Directors ("Voting
Securities") or (B) the then outstanding shares of all
classes of stock of the Company (in either such case
other than as a result of the acquisition of securities
directly from the Company), unless within one month
after the closing of such transaction (A) the Incumbent
Directors (as defined below) of the Company immediately
prior to such transaction or any of them represent a
majority of the directors (or individuals with similar
capacity) of the Company or such Person or (B) the
Executive Officers of the Company immediately prior to
such transaction or any of them continue to hold a
majority of the offices of the Company or such Person
which are similar to the Executive Officer positions of
the Company and such Executive Officers continue in such
capacity in accordance with a binding employment
agreement with an initial stated term of not less than
two years; or
(ii) individuals who, as of the Effective Date, constitute
the Company's Board of Directors (the "Incumbent
Directors") cease for any reason, including, without
limitation, as a result of a tender offer, proxy
contest, merger or similar transaction, to constitute at
least a majority of the Company's Board of Directors (or
board or similar governing body of any successor of the
Company), provided that any person becoming a director
of the Company (or such successor) subsequent to the
Effective Date whose election or nomination for election
was approved by a vote of at least a majority of the
Incumbent Directors shall, for purposes of this
Agreement, be considered an Incumbent Director; or
(iii) the closing of
(1) any consolidation or merger of the Company where the
stockholders of the Company, immediately prior to the
consolidation or merger, would not, immediately after
the consolidation or merger, beneficially own (as such
term is defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, shares representing in the
aggregate at least 50% of the voting shares of the
corporation issuing cash or securities in the
consolidation or merger (or of its ultimate parent
corporation, if any) unless within one month after the
closing of such consolidation or merger (A) the
Incumbent Directors of the Company immediately prior to
such consolidation or merger or any of them represent a
majority of the directors (or individuals with similar
capacity) of such corporation issuing cash or securities
in such consolidation or merger, or (B) the Executive
Officers of the Company immediately prior to
consolidation or merger or any of them continue to hold
a majority of the offices of such corporation issuing
cash or securities in such consolidation or merger which
are similar to the Executive Officer positions of the
Company and such Executive Officers continue in such
capacity in accordance with a binding employment
agreement with an initial stated term of not less than
two years;
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(2) any sale, lease, exchange or other transfer (in one
transaction or a series of transactions contemplated or
arranged by any party as a single plan) of all or
substantially all of the assets of the Company; or
(3) any plan or proposal for the liquidation or
dissolution of the Company.
Notwithstanding the foregoing, a Change in Control shall not
be deemed to have occurred for purposes of the foregoing clause (A)
solely as the result of an acquisition of securities by the Company
which, by reducing the number of shares of stock or other Voting
Securities outstanding, increases (x) the proportionate number of
shares of stock of the Company beneficially owned by any Person to 50%
or more of the shares of stock then outstanding or (y) the
proportionate voting power represented by the Voting Securities
beneficially owned by any Person to 50% or more of the combined voting
power of all then outstanding Voting Securities; provided, however,
that if any Person referred to in clause (x) or (y) of this sentence
shall thereafter become the beneficial owner of any additional stock of
the Company or other Voting Securities (other than pursuant to a share
split, stock dividend, or similar transaction), then a Change in
Control may be deemed to have occurred for purposes of the foregoing
clause (A).
c. "Disability" means a disability as determined under the
Company's long-term disability plan or program in effect at the time
the disability first occurs, or if no such plan or program exists at
the time of disability, then a "disability" as defined under Section
22(e)(3) of the Internal Revenue Code.
d. "Good Reason" means that, without your prior consent, one
of the following events or conditions has occurred and has not been
corrected to your reasonable satisfaction within 10 days of written
notice by you to the Company and Metropolitan (i) the principal place
of performance of your duties hereunder is relocated outside of
Manhattan, New York, (ii) your duties and responsibilities hereunder
are materially reduced, (iii) you are not paid any amount, or provided
any material benefit, when due hereunder, (iv) the Company or
Metropolitan materially breaches any of the terms of this Agreement, or
(v) the Company or Metropolitan, as applicable, fails to cause any
successor to, or assignee or transferee of, all or substantially all of
its assets to assume its liabilities, obligations and duties hereunder.
e. "Post Acquisition Reason" means that, without your prior
consent and after a Change of Control, (i) the principal place of
performance of your duties hereunder is relocated more than 20 miles
outside of Manhattan, New York, (ii) your duties and responsibilities
hereunder are materially reduced other than to the extent reasonable to
facilitate a transition, (iii) your title is modified to a title that
is not equivalent or senior to a "senior vice president" title in a
corporation (or comparable title for any other entity), (iv) you are
not paid any amount, or provided any material benefit, when due
hereunder, or (v) the Company or Metropolitan materially breaches any
of the terms of this Agreement applicable after a Change of Control,
and, in each case, such event or condition is not corrected to your
reasonable satisfaction within 10 days of written notice by you to the
Company and Metropolitan. Notwithstanding the foregoing, Post
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Acquisition Reason shall not be deemed to exist merely by reason of you
not retaining the title Managing Director of Metropolitan or any
successor.
f. "Unacceptable Bonus Payment" means that, without your prior
consent, your Cash Bonus during any year is less than $350,000 and you
resign your position within one year after notice of such bonus amount.
NOTICES. Any notice required or permitted hereunder shall be
in writing and shall be deemed sufficient when given by hand, by nationally
recognized overnight courier or by express, registered or certified mail,
postage prepaid, return receipt requested, and addressed to (i) the Company or
Metropolitan at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, attention: Xxxxx
Xxxxxxx, Esq., General Counsel; or (ii) you at the address indicated above with
a copy to Xxxxx Xxxx, Esq., Levy & Xxxxxxxxxx, LLP, 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or, in either case, to such other address as may
be provided by notice.
AMENDMENT OR WAIVER. No provision in this Agreement may be
amended unless such amendment is agreed to in writing and signed by each of the
parties. No waiver by any party of any breach by another party of any condition
or provision contained in this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar condition or provision at
the same or any prior or subsequent time. Any waiver must be in writing and
signed by each of the parties.
SEVERABILITY. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, in whole or in part, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
EXCLUSIVE JURISDICTION. 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 the County of New York of the State of New
York. Each of the undersigned, by execution and delivery of this Agreement, (i)
expressly and irrevocably consent and submit to the personal jurisdiction of any
of such courts in any such action or proceeding; (ii) consent to the service of
any complaint, summons, notice or other process relating to any such action or
proceeding by delivery thereof to such party by hand or by certified mail,
delivered or addressed as provided for the delivery of notices pursuant to this
Agreement; and (iii) waive any claim or defense in any such action or proceeding
based on any alleged lack of personal jurisdiction, improper venue or forum non
conveniens or any similar basis.
MISCELLANEOUS. This Agreement (i) constitutes the entire
agreement between the parties concerning the subject matter hereof and
supersedes any and all prior agreements or understandings, (ii) may be executed
in two or more counterparts, (iii) may not be assigned by you without the prior
written consent of the Company and Metropolitan, and (iv) may be assigned by the
Company or Metropolitan to, and shall be binding upon and inure to the benefit
of, any assignee of or successor to, the business of the Company or
Metropolitan, as applicable. Headings herein are for convenience of reference
only and shall not define, limit or interpret the contents hereof.
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We look forward to working with you. Please acknowledge your
understanding of and agreement with the terms of this letter by signing a copy
of the letter and returning it to the undersigned as soon as possible.
Reckson Associates Realty Corp. Metropolitan Partners LLC
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Name: Name:
Title: Title:
Acknowledged and Agreed this
20 day of November 2002:
/s/ Xxxxxx X. Xxxxxxxx III
-----------------------------
Xxxxxx X. Xxxxxxxx III
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