Exhibit 10.1
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
”).
W
I T N
E S S E T H
:
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
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(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
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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,
4
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 with
respect to this Agreement, in order to constitute effective notice
to the other party, shall be in writing and shall be deemed to have
been given when (a) personally delivered with signed delivery
receipt obtained, (b) when transmitted by facsimile machine,
if followed by the giving of, pursuant to one of the other means
set forth in this Section 13 before the end of the first business
day thereafter, printed confirmation of successful transmission to
the appropriate facsimile number of the addressee listed below as
obtained by the sender from the sender’s facsimile machine or
(c) upon receipt, when sent by prepaid reputable overnight
courier, in all cases addressed to the party to be notified at its
address first above set forth or to such other address as such
party shall have spe
