25% MEMBERSHIP INTERESTS PURCHASE
AGREEMENT
THIS MEMBERSHIP INTERESTS PURCHASE AGREEMENT ("
Agreement "), made as of January 5, 2007, by and
between 1350 MEZZANINE LLC, a Delaware limited liability company,
having an office at 625 Reckson Plaza, Uniondale, New York 11556 ("
Seller ") and SL Green Operating Partnership, L.P., a
Delaware limited partnership, having an office c/o SL Green Realty
Corp., 420 Lexington Avenue, New York, New York 10170 ("
Purchaser ") and SL Green Realty Corp., a Maryland
corporation, having an office at 420 Lexington Avenue, New York,
New York 10170 (“ Parent ”).
WHEREAS, Seller is the owner, of 100% of the
limited liability company membership interests in 1350 LLC, a
Delaware limited liability company (the " Company ")
which is the owner of that certain property known as 1350 Avenue of
the Americas, New York, New York (the “
Property ”);
WHEREAS, Seller and the Company are
subsidiaries owned more than 95% by Reckson Associates Realty Corp.
(“ Reckson ”) and Purchaser is a
subsidiary owned more than 95% by Parent;
WHEREAS, Reckson and Parent are parties to that
certain Agreement and Plan of Merger dated as of August 3, 2006, by
and among Parent, Wyoming Acquisition Corp., Wyoming Acquisition GP
LLC, Wyoming Acquisition Partnership LP, Reckson and Reckson
Operating Partnership, L.P. (the “ Merger
Agreement ”);
WHEREAS, Parent has requested that, prior to
the closing of the transactions contemplated pursuant to the Merger
Agreement, Seller sell, assign and convey to subsidiaries of Parent
100% of the limited liability company membership interests in the
Company; and
WHEREAS, Purchaser desires to purchase and
accept 25% of the limited liability company membership interests in
the Company (the “ Membership Interests
”) from Seller and Seller desires to sell, assign and convey
the Membership Interests to Purchaser on the terms and conditions
hereinafter set forth in this Agreement; and
WHEREAS, Seller has agreed to sell 75% of the
limited liability company membership interests in the Company (the
“ Other Membership Interests ”) pursuant
to that certain 75% Membership Interest Purchase Agreement dated as
of the date hereof between Seller, Purchaser and Parent (the
“ Other Purchase Agreement ”);
NOW, THEREFORE, for Ten Dollars
($10.00) and other good and valuable consideration, the receipt and
sufficiency of which being hereby acknowledged by Seller, Parent
and Purchaser, Seller, Parent and Purchaser hereby agree as
follows:
1.
Purchase and Sale of Membership Interests . On the terms and
conditions hereinafter set forth, Seller hereby agrees to sell,
assign and convey unto Purchaser and Purchaser hereby agrees to
purchase and accept from Seller, all of Seller’s right, title
and interest in and to the Membership Interests.
2.
AS-IS . Except as otherwise expressly set forth in this
Agreement, the sale, assignment and conveyance of the Membership
Interests is and shall be without recourse to, or representation or
warranty of any kind or nature whatsoever by, Seller, whether
express or implied, by operation of law, or otherwise. Purchaser
has made or been given the opportunity to make such examinations,
reviews and investigations as Purchaser deems necessary or
appropriate in making its decision to enter into this Agreement and
to purchase Seller’s right, title and interest in and to the
Membership Interests. No representation is made as to the nature of
the Company’s title to the Property.
3.
Purchase Price . The purchase price for the Membership
Interests shall be ONE HUNDRED MILLION AND 00/100 DOLLARS
($100,000,000.00) (the " Purchase Price "). On the
Closing Date (as hereinafter defined), Purchaser shall pay to
Seller the Purchase Price as follows:
(a) by execution and delivery at closing to
Seller of a note issued by the Purchaser in the amount of SIX
MILLION FORTY FIVE THOUSAND FIVE HUNDRED TWENTY SEVEN AND 54/100
DOLLARS ($6,045,527.54) (“ Purchase Money Note
”), in the form attached hereto as Exhibit A
and made a part hereof.
(b) the balance of the
Purchase Price shall be paid in cash by certified check drawn on a
bank which is a member of the New York Clearinghouse Association or
wire transfer in immediately available federal funds.
4.
Closing Date . The date of closing of the transaction
described herein (the “ Closing ”) shall
be January 5, 2007 (the " Closing Date ").
5.
Apportionments . There shall be no apportionments upon
Closing.
6.
Seller’s Deliveries on Closing Date . On the
Closing Date, Seller shall deliver or cause to be delivered to
Purchaser the following:
(a) an Assignment and Assumption of Membership
Interests in the form attached hereto as Exhibit B ,
duly executed by Seller and acknowledged, pursuant to which Seller
shall transfer to Purchaser all of Seller’s right, title and
interest in and to the Membership Interests and Purchaser shall
assume all of the obligations of Seller with respect to the
Membership Interests (the " Membership Interest
Assignment ");
(b) a certification of non-foreign status
(within the meaning of Treasury Regulation Section 1.1445-2(b)(2))
of Reckson Operating Partnership L.P.; and
(c) such other documents and
instruments reasonably required by Purchaser to effect the transfer
of the Membership Interests pursuant to this Agreement.
7.
Seller’s Representations . Seller hereby represents
and warrants to and covenants with Purchaser that:
(a) Seller has all requisite power
and authority to execute, deliver and perform this Agreement. This
Agreement has been duly authorized and delivered by Seller and
constitutes the legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
creditors' rights generally and to general principles of equity
(regardless of whether such enforcement is considered in a
proceeding in equity or at law). The execution and delivery and
performance by Seller of its obligations hereunder and all related
documents required hereby will not conflict with or result in a
breach of the provision of any applicable law or regulation, or
breach of any of the terms, conditions or provisions of any
material agreement or instrument to which Seller is now a party, or
constitute a default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule, regulation,
order, judgment or decree to which Seller or the property of Seller
is subject, which conflict, breach, default, acceleration or
violation would have a material adverse effect on the ability of
either of Seller to perform its respective obligations under this
Agreement.
(b) The Company is a limited
liability company duly organized, validly existing under the laws
of the State of Delaware and Seller owns, 100% of the limited
liability company membership interests in the Company.
(c) Seller has not previously filed a
voluntary petition in bankruptcy, been adjudicated a bankrupt or
insolvent or filed a petition or action seeking any reorganization,
arrangement, recapitalization, readjustment, liquidation,
dissolution or similar relief under any federal bankruptcy act or
any other law, sought or acquiesced in the appointment of any
trustee, receiver or liquidator of all or any substantial part of
his or her properties or any portion thereof, or made an assignment
for the benefit of creditors or admitted in writing his or her
inability to pay his or her debts generally as the same become
due.
(d) The Membership Interests are
not registered under any securities law.
8.
Purchaser's Representations .
Purchaser hereby represents and warrants to and
covenants with Seller that Purchaser is a limited partnership
formed, validly existing and in good standing under the laws of the
State of Delaware and has the company power and authority to
execute, deliver and perform this Agreement. Purchaser has duly
authorized the execution, delivery and performance of this
Agreement and all related documents required hereby. This Agreement
constitutes the legal, valid and binding obligation of Purchaser,
enforceable against it in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other
similar
laws affecting creditors' rights generally and to general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). The execution and
delivery and performance by Purchaser of its obligations hereunder
and all related documents required hereby will not conflict with or
result in a breach of the provision of any applicable law or
regulation, or breach of any of the terms, conditions or provisions
of Purchaser's certificate of formation or partnership agreement or
any material agreement or instrument to which Purchaser is now a
party, or constitute a default or result in an acceleration under
any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which Purchaser or its
property is subject, which conflict, breach, default, acceleration
or violation would have a material adverse effect on the ability of
Purchaser to perform its obligations under this
Agreement.
9.
Survival . All the provisions of this Agreement, other than
the representations and warranties of Seller and Purchaser set
forth in Sections 7 and 8 of this Agreement, shall survive the
Closing.
10.
Conditions Precedent .
(a) The obligation of Purchaser to
acquire the Membership Interests is subject to the fulfillment or
waiver at or prior to the Closing of the following
conditions:
(i) The representations and
warranties of Seller set forth in Section 7 shall be true and
current in all material respects as of the Closing Date.
(ii) Seller shall have delivered the items described in
Section 6.
(b) The obligation of Seller to
sell, convey and assign the Membership Interests is subject to the
fulfillment or waiver at or prior to the Closing of the following
conditions:
(i) The representations and
warranties of Purchaser set forth in Section 8 shall be true and
correct in all material respects as of the Closing Date.
(ii) Purchaser shall have delivered
counterparts of the Membership Interest Assignment and Company
Agreement Amendment, duly executed by Purchaser and
acknowledged.
(iii) Purchaser shall have paid the Purchase Price pursuant
to Section 3.
11.
Brokerage . Seller and Purchaser each represent and warrant
to the other that it has not dealt with any broker, consultant,
finder or like agent who might be entitled to a commission or
compensation on account of introducing the parties hereto, the
negotiation or execution of this Agreement or the Closing. Seller
agrees to indemnify and hold Purchaser, its respective successors
and assigns, harmless from and against all claims, losses,
liabilities and expenses (including, without limitation, reasonable
attorneys fees and disbursements) which may be asserted against,
imposed upon or incurred by Purchaser by reason of any claim made
by any broker, consultant, finder or like agent for commissions or
other compensation for bringing about this transaction or claiming
to have introduced the Membership Interests to Purchaser. Purchaser
agrees to indemnify and hold Seller, their respective successors
and assigns, harmless from and against all claims,
losses,
liabilities, (including, without limitation, reasonable attorneys
fees and disbursements) which may be asserted against, imposed upon
or incurred by Seller by reason of any claim made by any broker,
consultant, finder or like against for commissions or other
compensation for bringing about this transaction or claiming to
have introduced the Membership Interests to Purchaser. The
provisions of this Section 11 shall survive the Closing or other
termination of this Agreement.
12.
Closings Costs; Fees and Disbursements of Counsel, etc .
Purchaser shall be responsible for and shall pay (a) all
documentary stamp taxes, transfer taxes or surtaxes, if any,
imposed upon or payable in connection with the transfer of
Seller’s right, title and interest in and to the Membership
Interests contemplated hereby and has paid or caused to be paid (or
will pay or cause to be paid) all such taxes in connection with
such transfer of the Membership Interests to Purchaser (and any
such taxes imposed upon or payable in connection with
Seller’s exercise of the Call Option pursuant to Section 32
hereof (as defined therein), and (b) all fees and disbursements of
Seller’s counsel, accountants and other advisors in
connection with the negotiation and preparation of this Agreement
and the Closing. The provisions of this Section 12 shall survive
the Closing or other termination of this Agreement.
13.
Notices . All notices, demands, requests, consents,
approvals or other communications (for the purposes of this Article
collectively referred to as " Notices ") required or
permitted to be given hereunder or which are given
