<PAGE>
[CONFORMED COPY]
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 30, 1994
(December 29, 1994)
ROCKEFELLER CENTER PROPERTIES, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 1-8971 13-3280472
--------------- ---------------- -------------------
(State or other (Commission File (IRS Employer
jurisdiction) Number) Identification No.)
1270 Avenue of the Americas, New York, N.Y. 10020
-----------------------------------------------------------
(Address of principal executive offices (Zip Code))
Registrant's telephone number, including area code: (212) 698-1440
<PAGE>
2
Item 5. OTHER EVENTS.
Rockefeller Center Properties, Inc. (the "Company") announced
that the transactions contemplated by the Loan Agreement dated as of December
18, 1994 among the Company, the lenders parties thereto and Goldman Sachs
Mortgage Company ("GSMC"), as agent, and the Debenture Purchase Agreement dated
as of December 18, 1994 between the Company and Whitehall Real Estate Limited
Partnership V ("Whitehall") had closed on December 29, 1994 and that, in
connection therewith, the Company had issued to GSMC a Floating Rate Promissory
Note due 2000 in the amount of $150,000,000 and to Whitehall a 14% Debenture due
2007 in the amount of $75,000,000. The Company also announced that it had
applied the net proceeds of these issuances in the amount of approximately
$214.4 million to the retirement of its outstanding commercial paper in the
amount of approximately $193.1 million, to the retirement at a cost of
approximately $10.6 million of interest rate swaps with a net notional principal
of approximately $145 million and to pay approximately $2.1 million of fees and
expenses associated with the Company's study of means to modify or reduce its
interest rate swap positions and address the scheduled expiration of its
commercial paper facility on June 30, 1995, which has now been concluded. The
balance of such net proceeds will be applied by the Company to general corporate
purposes.
The Company also announced that Claude M. Ballard, Jr. had
resigned as Chairman of the Board and as Director of the Company, that Professor
Peter D. Linneman, who is currently a Director of the Company, had been elected
Chairman of the Board to replace Mr. Ballard in that capacity and that Daniel M.
Neidich, a partner of Goldman, Sachs & Co., had been elected to the Board to
fill the vacancy created by the resignation of Mr. Ballard for a term expiring
at the 1996 Annual Meeting of Stockholders of the Company. Mr. Neidich was
elected to the Board pursuant to the letter agreement between the Company and
Goldman, Sachs & Co. and Whitehall filed as Exhibit 4.8 to the Company's Current
Report on Form 8-K dated December 22, 1994.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(C) Exhibits. The following are being filed as exhibits to this
Report:
4.9 Corrected copy (correcting pp. 2,10,35,43) of the
Debenture Purchase Agreement dated as of December 18,
1994 between the Company and Whitehall.
4.10 Conformed copy of the Collateral Trust Agreement dated
as of December 29, 1994 among the Company, Bankers
Trust Company and Gary R. Vaughan, Trustees.
<PAGE>
3
4.11 Conformed copy of the Registration Rights Agreement
dated as of December 29, 1994 among the Company, GSMC
and Whitehall.
4.12 Conformed letter amendment dated as of December 29,
1994 between the Company and Chemical Bank, warrant
agent, amending the Warrant Agreement dated as of
December 18, 1994 between the Company and Chemical
Bank, warrant agent.
4.13 Conformed letter amendment dated as of December 29,
1994 between the Company and Chemical Bank, SAR agent,
amending the SAR Agreement dated as of December 18,
1994 between the Company and Chemical Bank, SAR agent.
10.35 Corrected copy (correcting pp. 6,8,10,34-36,38,44-
46,48) of the Loan Agreement dated as of December 18,
1994 among the Company, the lenders parties thereto and
GSMC, as agent.
99.5 Press release dated December 29, 1994.
<PAGE>
4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed by the undersigned
thereunto duly authorized.
ROCKEFELLER CENTER PROPERTIES, INC.
(Registrant)
By: /s/ Richard M. Scarlata
--------------------------------
Name: Richard M. Scarlata
Title: President and Chief Executive
Officer
Dated: December 30, 1994
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -----------
4.9 Corrected copy (correcting pp. 2,10,35,43) of the
Debenture Purchase Agreement dated as of December
18, 1994 between the Company and Whitehall.
4.10 Conformed copy of the Collateral Trust Agreement
dated as of December 29, 1994 among the Company,
Bankers Trust Company and Gary R. Vaughan, Trustees.
4.11 Conformed copy of the Registration Rights Agreement
dated as of December 29, 1994 among the Company,
GSMC and Whitehall.
4.12 Conformed letter amendment dated as of December 29,
1994 between the Company and Chemical Bank, warrant
agent, amending the Warrant Agreement dated as of
December 18, 1994 between the Company and Chemical
Bank, warrant agent.
4.13 Conformed letter amendment dated as of December 29,
1994 between the Company and Chemical Bank, SAR
agent, amending the SAR Agreement dated as of
December 18, 1994 between the Company and Chemical
Bank, SAR agent.
10.35 Corrected copy (correcting pp. 6,8,10,34-36,38,44-
46,48) of the Loan Agreement dated as of December
18, 1994 among the Company, the lenders parties
thereto and GSMC, as agent.
99.5 Press release dated December 29, 1994.
<PAGE>
EXHIBIT 4.9
[CONFORMED COPY]
DEBENTURE PURCHASE AGREEMENT
between
ROCKEFELLER CENTER PROPERTIES, INC.,
and
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V
dated as of
December 18, 1994
<PAGE>
TABLE OF CONTENTS
<TABLE>
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SECTION 1 DEFINITIONS AND ACCOUNTING TERMS. . . . . . . . . . . . . . . . . . 2
1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . . . . 12
1.03. Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2 THE DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.01. Issuance of Debentures. . . . . . . . . . . . . . . . . . . . . . . 12
(a) Issuance to Whitehall. . . . . . . . . . . . . . . . . . . . . .12
(b) Subsequent Issuances . . . . . . . . . . . . . . . . . . . . . .12
2.02. Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Maturity Date. . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) Principal Payment. . . . . . . . . . . . . . . . . . . . . . . 13
2.03. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.04. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.05. Form of Legend for Securities . . . . . . . . . . . . . . . . . . . 14
2.06. Payments and Computations . . . . . . . . . . . . . . . . . . . . . 14
2.07. Withholding; Payment of Additional Amounts. . . . . . . . . . . . . 15
2.08. Registration, Registration of Transfer
and Exchange, Restriction on Transfer . . . . . . . . . . . . . . . 17
(a) Security Register. . . . . . . . . . . . . . . . . . . . . . . 17
(b) Transfer Restrictions. . . . . . . . . . . . . . . . . . . . . 18
2.09. Mutilated, Destroyed, Lost and Stolen Debentures. . . . . . . . . . 21
2.10. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . 22
2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3 CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . . . 22
3.01. Purchase of the Debentures. . . . . . . . . . . . . . . . . . . . . 22
(a) Executed Loan Documents. . . . . . . . . . . . . . . . . . . . 22
(b) Procedures Regarding Collateral. . . . . . . . . . . . . . . . 22
(c) No Default; Representations and Warranties . . . . . . . . . . 22
(d) Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 23
(e) Corporate Documents. . . . . . . . . . . . . . . . . . . . . . 23
(i) Certificates of Authorization
and Incumbency . . . . . . . . . . . . . . . . . . . . 23
(ii) Certificates of Incorporation
and By-laws. . . . . . . . . . . . . . . . . . . . . . 23
(iii) Certificates of Good Standing
or Existence . . . . . . . . . . . . . . . . . . . . . 23
(f) Related Transactions . . . . . . . . . . . . . . . . . . . . . 23
(g) Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . 23
(h) Other Documents. . . . . . . . . . . . . . . . . . . . . . . . 24
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(i) 1985 Loan Agreement Default. . . . . . . . . . . . . . . . . . 24
(j) Market Conditions. . . . . . . . . . . . . . . . . . . . . . . 24
(k) Consent to Assignment. . . . . . . . . . . . . . . . . . . . . .24
(l) Business Combination . . . . . . . . . . . . . . . . . . . . . .24
3.02. Subsequent Issuances and Delivery of Debentures. . . . . . . . . . . 25
3.03. Obligation of the Company to Close . . . . . . . . . . . . . . . . . .25
SECTION 4 REPRESENTATIONS AND WARRANTIES OF COMPANY . . . . . . . . . . . . . 25
4.01. Existence, Power and Ownership. . . . . . . . . . . . . . . . . . . 25
4.02. Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.03. No Violation or Conflicts . . . . . . . . . . . . . . . . . . . . . 25
4.04. Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.05. Enforceable Obligations . . . . . . . . . . . . . . . . . . . . . . 26
4.06. Financial Condition; Securities and Exchange Commission
Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.07. No Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.08. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.09. Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.10. Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.11. Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . 27
4.12. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.13. Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . 28
4.14. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.15. Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.16. Use of Proceeds; Margin Stock . . . . . . . . . . . . . . . . . . . 28
4.17. Government Regulation . . . . . . . . . . . . . . . . . . . . . . . 29
4.18. Pari Passu Obligations. . . . . . . . . . . . . . . . . . . . . . . 29
4.19. Ownership of Real Estate. . . . . . . . . . . . . . . . . . . . . . 29
4.20. No Pending Condemnation or Eminent Domain . . . . . . . . . . . . . 30
4.21. Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . . .30
SECTION 5 AFFIRMATIVE COVENANTS OF THE COMPANY. . . . . . . . . . . . . . . . 30
5.01. Information Covenants . . . . . . . . . . . . . . . . . . . . . . . 30
(a) Annual Financial Statements. . . . . . . . . . . . . . . . . . 30
(b) Auditor's Certificate. . . . . . . . . . . . . . . . . . . . . 31
(c) Quarterly Financial Statements . . . . . . . . . . . . . . . . 31
(d) Officer's Certificate. . . . . . . . . . . . . . . . . . . . . 32
(e) Auditor's Reports. . . . . . . . . . . . . . . . . . . . . . . 32
(f) Real Estate and Other Information. . . . . . . . . . . . . . . 32
(g) Other Information. . . . . . . . . . . . . . . . . . . . . . . 32
(h) Notice of Default or Litigation. . . . . . . . . . . . . . . . 32
(i) Changes to Indebtedness. . . . . . . . . . . . . . . . . . . . 33
5.02. Preservation of Existence and Franchises. . . . . . . . . . . . . . 33
5.03. Books, Records and Inspections. . . . . . . . . . . . . . . . . . . 33
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5.04. Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . 33
5.05. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.06. Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . 34
5.07. Plan Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.08. Intercreditor Agreement . . . . . . . . . . . . . . . . . . . . . . 34
5.09. Resale of Debentures. . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6 NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . 36
6.01. Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.02. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.03. Nature of Business. . . . . . . . . . . . . . . . . . . . . . . . . 37
6.04. Consolidation, Merger, Sale or Purchase of Assets . . . . . . . . . 37
6.05. Advances, Investments and Loans . . . . . . . . . . . . . . . . . . 37
6.06. Transactions with Affiliates. . . . . . . . . . . . . . . . . . . . 37
6.07. Operating Lease Obligations . . . . . . . . . . . . . . . . . . . . 38
6.08. Sale and Leaseback. . . . . . . . . . . . . . . . . . . . . . . . . 38
6.09. Governing Documents . . . . . . . . . . . . . . . . . . . . . . . . 38
6.10. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.11. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.12. Modifications to Mortgage . . . . . . . . . . . . . . . . . . . . . 39
6.13. Modification or Payment of Indebtedness . . . . . . . . . . . . . . 39
6.14. Usury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 40
(a) Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(b) Representations. . . . . . . . . . . . . . . . . . . . . . . . 40
(c) Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(d) Other Agreements . . . . . . . . . . . . . . . . . . . . . . . 40
(e) Bankruptcy, etc. . . . . . . . . . . . . . . . . . . . . . . . 41
(f) Defaults under Other Agreements. . . . . . . . . . . . . . . . 41
(g) Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.02 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(i) Acceleration of Debentures . . . . 42
(ii) Enforcement of Rights. . . . . . . . . . . . . . . . . 42
(iii) Waiver of Past Defaults . . . . . . . . . . . . . . . . 42
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SECTION 8 REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.01. Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(a) Voluntary Redemption . . . . . . . . . . . . . . . . . . . . . 43
(b) Mandatory Redemptions. . . . . . . . . . . . . . . . . . . . . 44
(c) Partial Redemption . . . . . . . . . . . . . . . . . . . . . . 44
(d) Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 44
(e) Interest after Redemption Date . . . . . . . . . . . . . . . . 45
SECTION 9 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.02. Benefit of Agreement; Assignments and Participations. . . . . . . . 45
9.03. No Waiver; Remedies Cumulative. . . . . . . . . . . . . . . . . . . 46
9.04. Payment of Expenses; Indemnification. . . . . . . . . . . . . . . . 46
9.05. Amendments, Waivers and Consents. . . . . . . . . . . . . . . . . . 49
9.06. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.07. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.08. Survival of Indemnities . . . . . . . . . . . . . . . . . . . . . . 49
9.09. Governing Law; Submission to Jurisdiction; Venue. . . . . . . . . . 49
9.10. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.11. Entirety. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.12. Survival of Representations and Warranties. . . . . . . . . . . . . 51
SCHEDULES
Schedule 3.01(g) - Fees
Schedule 4.09 - Indebtedness
Schedule 4.10 - Litigation
Schedule 4.11 - Material Agreements
Schedule 5.05 - Insurance
EXHIBITS
EXHIBIT A - Debenture
EXHIBIT B - Officer's Certificate
EXHIBIT C - Form of Assignment of Mortgage
EXHIBIT D - Form of Collateral Trust Agreement
EXHIBIT E - Form of Letter Agreement
EXHIBIT F - Form of Registration Rights Agreements
</TABLE>
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<PAGE>
DEBENTURE PURCHASE AGREEMENT
DEBENTURE PURCHASE AGREEMENT, dated as of December 18, 1994 (this
"Agreement"), between Rockefeller Center Properties, Inc., a Delaware
corporation (the "Company") and Whitehall Street Real Estate Limited Partnership
V, a Delaware limited partnership, ("Whitehall").
RECITALS
WHEREAS, the Company has duly authorized the creation of an issue of
its 14% Debentures Due 2007 (the "Debentures") of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Agreement.
WHEREAS, all things necessary to make the Debentures, when issued
and delivered by the Company hereunder, the valid obligations of the Company,
and to make this Agreement a valid agreement of the Company, in accordance
with their and its respective terms, have been done.
WHEREAS, Whitehall has agreed to purchase Debentures in an aggregate
principal amount of $75,000,000 on the Closing Date (as defined herein) the
terms and conditions hereinafter set forth.
WHEREAS, from time to time and in accordance with the Stock
Appreciation Rights Agreement (the "Stock Appreciation Rights Agreement"), dated
the date hereof, between the Company and Whitehall, as agent (the "SAR Agent")
for the holders from time to time of the stock appreciation rights (the "Stock
Appreciation Rights") issued thereby named therein, the Company shall issue and
deliver additional debentures to the SAR Agent for delivery to the holders of
Stock Appreciation Rights which have requested exchange therefor pursuant to the
terms and conditions of the Stock Appreciation Rights Agreement.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
<PAGE>
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.01. DEFINITIONS. As used herein, the following terms shall
have the meanings specified herein unless the context otherwise requires.
Defined terms herein shall include in the singular number the plural and in the
plural the singular:
"ADDITIONAL AMOUNTS" has the meaning specified in Section 2.07.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all partners,
directors and officers of such Person), controlled by or under direct or
indirect common control with such Person. A Person shall be deemed to control a
corporation or a partnership if such Person possesses, directly or indirectly,
the power (i) to vote 10% or more of the securities having ordinary voting power
for the election of directors of such corporation or to vote 10% or more of the
partnership interests of such partnership or (ii) to direct or cause direction
of the management and policies of such corporation or partnership, whether
through the ownership of voting securities, as managing or general partner, by
contract or otherwise.
"AGENT" has the meaning specified in the Loan Agreement.
"ASSIGNMENT OF MORTGAGE" means the Assignment of Mortgage in the
form of Exhibit C hereto from the Company to the Collateral Agent providing for
an assignment of the Mortgage as security for the Debentures, the Loans and the
Indenture Securities.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, a
legal holiday in New York, New York or a day on which banking institutions in
New York, New York are authorized by law or other governmental action to close;
PROVIDED, however, that so long as the Notes are outstanding, any day that is
not a " Business Day" under the Loan Agreement shall not be a Business Day
hereunder.
"CASH EQUIVALENTS" means (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having
-2-
<PAGE>
maturities of not more than six months from the date of acquisition, (ii) U.S.
dollar denominated time deposits and certificates of deposit of a bank (an
"Approved Bank") that is either (x) any domestic commercial bank of recognized
standing having capital and surplus in excess of $500,000,000 or (y) any bank
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Moody's is at least P-1 or the equivalent thereof, in
each case with maturities of not more than six months from the date of
acquisition, (iii) commercial paper and variable or fixed rate notes issued by
any Approved Bank (or by the parent company thereof) or any variable rate notes
issued or guaranteed by any Approved Bank rated at least A-1 (or the equivalent
thereof) by S&P or at least P-1 (or the equivalent thereof) by Moody's and
maturing within six months of the date of acquisition, (iv) repurchase
agreements with a bank or trust company or recognized securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations issued by
or fully guaranteed by the United States of America in which the Company shall
have a perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at least
100% of the amount of the repurchase obligations, and (v) publicly traded
short-term notes, bonds and other obligations having short-term unsecured debt
ratings of at least A-1 (or the equivalent thereof) by S&P or at least P-1 (or
the equivalent thereof) by Moody's.
"CLOSING DATE" has the meaning specified in Section 2.01 of the
Loan Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL AGENT" means the Collateral Agent under the Collateral
Trust Agreement.
"COLLATERAL TRUST AGREEMENT" means the Collateral Trust Agreement
in the form of Exhibit D hereto among the Collateral Agent, the Agent,
Whitehall, the Company and the Trustee, providing for the pledge of the Mortgage
Note and other Collateral as security for the Debentures, the Loans and the
Indenture Securities.
"COMMON STOCK" means common shares, par value $.01, of the
Company.
-3-
<PAGE>
"CONSISTENT BASIS" or "CONSISTENT BASIS" means, with regard to
the application of accounting principles, accounting principles consistent in
all material respects with the accounting principles used and applied in
preparation of the financial statements previously delivered to the Holders and
referred to in Section 4.06.
"DEBENTURES" has the meaning specified in the Recitals.
"DEFAULT" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated thereunder.
"ERISA AFFILIATE" means each person (as defined in Section 3(9) of
ERISA) which together with the Company would be deemed to be a member of the
same "controlled group" within the meaning of Section 414(b), (c), (m) or (o) of
the Code.
"EVENT OF DEFAULT" has the meaning specified in Section 7.01
hereof.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES" means generally accepted accounting principles in the
United States in effect as of the date of this Agreement.
"GUARANTY OBLIGATIONS" means any obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) guaranteeing any Indebtedness, leases, dividends or other
obligations of any other Person in any manner, whether direct or indirect, and
including, without limitation, any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or other obligation or any property constituting
security therefor, (ii) to advance or provide funds or other support for the
payment or purchase of such Indebtedness or obligation or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance agreements,
comfort letters or similar agreements or arrangements), (iii) to lease or
purchase property, securities or services primarily for the purpose of assuring
the owner of such Indebtedness or obligation, or
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(iv) to otherwise assure or hold harmless the owner of such Indebtedness or
obligation against loss in respect thereof.
"HOLDER" or "HOLDERS" means a holder of any Debenture.
"INDEBTEDNESS" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money, (ii) the
deferred purchase price of assets which in accordance with generally accepted
accounting principles would be shown to be a liability (or on the liability side
of a balance sheet) of such Person, (iii) all Guaranty Obligations of such
Person, (iv) the maximum amount of all letters of credit issued or acceptance
facilities established for the account of such Person and, without duplication,
all drafts drawn thereunder (other than letters of credit (x) supporting other
Indebtedness of such Person, or (y) offset by a like amount of cash or
government securities held in escrow to secure such letter of credit and draws
thereunder), (v) all capitalized lease obligations of such Person, (vi) all
indebtedness of another Person secured by any lien on any property of such
Person, whether or not such indebtedness has been assumed, (vii) all obligations
under take-or-pay or similar arrangements or under interest rate swap, currency
swap, or commodities agreements of such Person, (viii) indebtedness created or
arising under any conditional sale or title retention agreement of such Person,
(ix) obligations of such Person with respect to withdrawal liability or
insufficiency in excess of $5,000,000 (calculated on an accumulated benefit
obligation basis) under ERISA or under any qualified plan or related trust and
(x) all other obligations which in accordance with generally accepted accounting
principles would be shown to be a liability (or on the liability side of a
balance sheet) of such Person; PROVIDED, HOWEVER, that Indebtedness shall
not include trade payables and accrued expenses arising or incurred in the
ordinary course of business.
"INDENTURE SECURITIES" means the securities of the Company issued
pursuant to the 1985 Indenture.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement dated
as of the date hereof among the Agent, the Lenders, Whitehall and the Company.
"INTEREST PAYMENT DATE" means each June 2 and December 2 from and
after the date hereof until the Maturity Date and the Maturity Date.
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"LENDERS" means the lender or lenders under the Loan Agreement.
"LETTER AGREEMENT" means the letter agreement in the form of
Exhibit E hereto regarding the assignment by the Company of its title insurance
benefits to the Collateral Agent.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice perfecting a security
interest under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction, or other similar recording or notice statute, and any
lease in the nature thereof).
"LOAN AGREEMENT" means the Loan Agreement, dated as of the date
hereof, among the Company, the Lenders and the agent named therein.
"LOANS" means the monies advanced to the Company by the Lenders
pursuant to the Loan Agreement.
"LOAN DOCUMENTS" means this Agreement, the Loan Agreement, the
Debentures, the Security Documents, the Collateral Trust Agreement, the
Intercreditor Agreement, the Registration Rights Agreement, the Letter
Agreement, the Notes, the Stock Appreciation Rights Agreement, the Stock
Appreciation Rights, the Warrant Agreement and the Warrants.
"MATURITY DATE" shall have the meaning given to such term in
Section 2.02(a) hereof.
"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGE" means, collectively, the Mortgage and Security
Agreement, dated as of September 19, 1985, by RCPA and RCP to the Company, the
Consolidation, Extension, Modification and Spreader Agreement, dated as of
September 19, 1985, among RCPA, RCP and the Company, recorded with and certified
by the City Register of the City of New York, and the Assignment of Rents, dated
as of September 19, 1985, by RCPA and RCP to the Company, recorded with and
certified by the City Register of the City of New York, each as amended from
time to time.
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"MORTGAGE NOTE" means, collectively, the Mortgage Note, dated as
of September 19, 1985, in the amount of $1,255,160,004, in favor of the Company
and the Consolidated Mortgage Note, dated as of September 19, 1985, in the
amount of $44,839,996, each as amended from time to time.
"NET CASH FLOW" means, for the period in question and based on a
cash basis of accounting (as modified to deduct accruals for any taxes and
insurance), (i) gross receipts and/or income related to the Mortgage Note and
Real Estate (including all rents, tax escrows, insurance proceeds, condemnation
proceeds, proceeds of debt financings, and any other receipts or payments
actually received by or on behalf of the Company under or in connection with the
Real Estate or the Mortgage Note except with respect to tax escrows and
condemnation and insurance proceeds legally or contractually required to be paid
over to another Person by the Company whether or not within the period in
question) and receipts from any other source, including the net proceeds of any
sale of equity by the Company, minus (ii) the sum of (x) those actual operating,
renting, administrative, legal and other ordinary expenses incurred by the
Company, (y) interest paid or (without duplication) accrued (on a straight-line
basis) with respect to the Debentures, the Notes, the Indenture Securities and
any other Indebtedness permitted by Section 6.01, and (z) dividends paid or
(without duplication) accrued (on a straight-line basis) to holders of Common
Stock and distributions, if any, paid or (without duplication) accrued (on a
straight-line basis) to holders of the Warrants or the Stock Appreciation Rights
as permitted by Section 6.11; PROVIDED, HOWEVER, (A) for purposes of this
calculation expenses specified in clause (x) shall not include (except for the
accruals described in the first parenthetical of this definition) any non-cash
charges of the Company, including, without limitation, any depreciation or
amortization; (B) amounts accrued in respect of interest, dividends or
distributions as specified in clauses (y) or (z) above may not be used for any
purpose other than such interest payments, dividends or distributions, and, if
not so used, such amounts shall be included in the calculation of Net Cash Flow
hereunder; and (C) for the purposes of Section 2.03(b), Net Cash Flow shall be
computed without giving effect to the deduction provided for in clause (z)
above.
"NEW DEBT" has the meaning specified in Section 5.09.
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"NEW DOCUMENTS" has the meaning specified in Section 5.09.
"NYSE" has the meaning specified in Section 3.01(j).
"1985 INDENTURE" means the Indenture, dated as of September 15,
1985 from the Company to United States Trust Company (as successor to
Manufacturers Hanover Trust Company), as Trustee, as amended by the First
Supplemental Indenture dated as of December 15, 1985, as further amended from
time to time.
"1985 LOAN AGREEMENT" means the Loan Agreement dated as of
September 19, 1985 among the Company, RCPA and RCP, as amended from time to
time.
"NOTES" means, collectively, the floating rate promissory notes of
the Company executed in accordance with the Loan Agreement.
"PERMITTED INVESTMENTS" means cash and Cash Equivalents.
"PERMITTED LIENS" means (i) Liens created by the Collateral Trust
Agreement, Security Documents and the Letter Agreement or otherwise created by,
under or in connection with this Agreement or the other Loan Documents in favor
of the Collateral Agent; (ii) Liens for taxes not yet due or Liens for taxes
being contested in good faith by appropriate proceedings for which adequate
reserves have been established (and as to which the property subject to such
Lien is not yet subject to foreclosure, sale or loss on account thereof); (iii)
Liens in respect of property imposed by law arising in the ordinary course of
business such as materialmen's, mechanics', warehousemen's and other like Liens;
provided that such Liens secure only amounts not yet due and payable or amounts
being contested in good faith by appropriate proceedings for which adequate
reserves have been established (and as to which the property subject to such
lien is not yet subject to foreclosure, sale or loss on account thereof); (iv)
pledges or deposits made to secure payment under worker's compensation
insurance, unemployment insurance, pensions, social security programs, public
liability laws or similar legislation; (v) Liens arising from good faith
deposits in connection with or to secure performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, contracts, performance and
return-of-money bonds and other similar obligations incurred
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in the ordinary course of business (other than obligations in respect of the
payment of borrowed money); (vi) easements, rights-of-way, restrictions
(including zoning restrictions), defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, interfering with
the ordinary course of business of the Company; (vii) leases or subleases
granted to others, whether existing now or hereafter entered into, in the
ordinary course of business, not in any material respect interfering with the
ordinary course of business or operations of the Company; and (viii) any
attachment or judgment lien, unless the judgment it secures shall not, within 30
days after the entry thereof, have been discharged or execution thereof stayed
pending appeal, or shall not have been discharged within 30 days after the
expiration of any such stay.
"PERSON" means any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise (whether or not
incorporated), or any government or political subdivision or any agency,
department or instrumentality thereof.
"PLAN" means any multiemployer or tax-qualified single-employer
plan as defined in Section 4001 of ERISA.
"PLAN ASSETS" means such term within the meaning and as defined in
the Department of Labor Regulation 29 CFR Section 2510.3-101, as amended, and
the advisory opinions or other administrative interpretations thereunder.
"PURCHASE OPTION" means the Purchase Option, dated as of September
19, 1985, among RCPA, RCP and the Company.
"RCP" means Rockefeller Center Properties, a New York general
partnership.
"RCPA" means RCP Associates, a New York limited partnership.
"REAL ESTATE" means the real property identified in Exhibit A to
the Mortgage and Security Agreement, dated as of September 19, 1985, by RCPA and
RCP to the Company, but excluding any Development Rights (as defined therein)
available to the land identified in Exhibit A and Exhibit C thereto and the area
identified in Exhibit B thereto.
"REDEMPTION DATE" has the meaning given to such term in Section
8.01(a).
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"REDEMPTION PRICE" mean the product of the principal amount of
Debentures held by a Person and the applicable percentage (calculated as a
fraction) specified in Section 8.01(a)(ii).
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement in the form of Exhibit F hereto among the Company, the Agent and
Whitehall.
"REGULAR RECORD DATE" has the meaning given to such term in
Section 2.06.
"REGULATION G, T, U OR X" means, respectively, Regulation G, T, U
and X of the Board of Governors of the Federal Reserve System as from time to
time in effect and any successor to all or a portion thereof.
"REIT" has the meaning specified in Section 4.01(b).
"REQUIRED HOLDERS" means Holders holding more than 50% of the
aggregate outstanding principal amount of the Debentures.
"REQUIRED SARS AND HOLDERS" means Holders and holders of Stock
Appreciation Rights holding collectively more than 50% of the sum of (i) the
outstanding principal amount of the Debentures, and (ii) the principal amount of
Debentures for which Stock Appreciation Rights on the day of determination would
then be exchangeable.
"SAR AGENT" has the meaning given to such term in the Recitals.
"S&P" means Standard & Poor's Corporation.
"SECURITY DOCUMENTS" means the Assignment of Mortgage and the
letters of credit delivered in accordance with the Collateral Trust Agreement.
"SECURITY REGISTER" has the meaning given to such term in Section
2.08(a).
"STOCK APPRECIATION RIGHTS" has the meaning given to such term in
the Recitals.
"STOCK APPRECIATION RIGHTS AGREEMENT" has the meaning given to
such term in the Recitals.
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"SUBSEQUENT HOLDER" means, with respect to each issuance of
Debentures pursuant to Section 2.01(b), each Person who after issuance and
delivery of such Debentures is a Holder.
"SUBSEQUENT ISSUE DATE" shall mean the date of each issuance of
Debentures pursuant to Section 2.01(b).
"SUBSIDIARY" of any Person means, with respect to such Person, (i)
any corporation more than 25% of whose stock of any class or classes having by
the terms thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries, and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries has more than 25% equity interest at any time.
"TRUSTEE" means United States Trust Company, as Trustee, under the
1985 Indenture, or any successor trustee thereto.
"UNITED STATES" means the United States of America, the District
of Columbia, Puerto Rico, the United States Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
"UNITED STATES ALIEN" means any person not subject to United
States federal income tax on a net income basis federal income tax purposes, is
a foreign corporation, a nonresident alien individual, a nonresident alien
fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States federal income tax purposes, a
foreign corporation, a nonresident alien individual or a nonresident alien
fiduciary of a foreign estate or trust.
"WARRANT AGENT" means the Warrant Agent under the Warrant
Agreement.
"WARRANT AGREEMENT" means the Warrant Agreement dated the date
hereof between the Company and the Warrant Agent.
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"WARRANTS" means the warrants for the purchase of shares of the
Common Stock issued pursuant to the Warrant Agreement.
"WHITEHALL" has the meaning specified in the first paragraph of
this Agreement.
1.02. COMPUTATION OF TIME PERIODS. For purposes of computation
of periods of time hereunder, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding."
1.03. ACCOUNTING TERMS. Accounting terms used but not otherwise
defined herein shall have the meanings provided, and be construed in accordance
with, generally accepted accounting principles.
SECTION 2
THE DEBENTURES
2.01. ISSUANCE OF DEBENTURES. The Company agrees to issue and
sell, from time to time, the Debentures pursuant to the terms of this Agreement.
The Debentures shall be executed on behalf of the Company by its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Debentures may be manual or facsimile.
Debentures bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debentures or did not
hold such offices at the date of such Debentures.
(a) ISSUANCE TO WHITEHALL. On the Closing Date, subject to the
terms and conditions set forth herein (including, but not limited to, the
conditions specified in Section 3.01 of this Agreement), the Company agrees to
issue, sell and deliver to Whitehall and Whitehall agrees to purchase and pay
for Debentures in the aggregate principal amount of $75,000,000.
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(b) SUBSEQUENT ISSUANCES. Upon the date of notification from
the SAR Agent that a holder of Stock Appreciation Rights has elected to exchange
Stock Appreciation Rights for Debentures, the Company agrees it will (i) as soon
as practicable, and in any event within 5 days of notice from the SAR Agent,
satisfy the condition precedent to issuance contained in Section 3.02, and (ii)
issue and deliver Debentures, dated as of the date of surrender of the
certificate or certificates evidencing such Stock Appreciation Rights in
accordance with Section 4.4 of the Stock Appreciation Rights Agreement (the
"Surrender Date"), in the aggregate principal amount to which such holder or
holders of Stock Appreciation Rights shall be entitled to the SAR Agent for
delivery to the exchanging holder of Stock Appreciation Rights; PROVIDED, that
the obligations of the Company under this Section 2.01(b) shall be subject to
the terms and conditions of the Stock Appreciation Rights Agreement. Any holder
of Stock Appreciation Rights surrendering certificates in accordance with the
previous sentence shall be deemed to be the Owner of all Debentures received in
exchange for such certificates as of and from the Surrender Date, and shall have
all the rights associated with such Debentures as of and from the Surrender
Date.
2.02. MATURITY.
(a) MATURITY DATE. The Debentures shall mature on December 31,
2007 (the "Maturity Date").
(b) PRINCIPAL PAYMENT. The Company agrees to pay the outstanding
principal amount of the Debentures, together with all accrued but unpaid
interest thereon and all other amounts owing from the Company to the Holders, on
the Maturity Date.
2.03. INTEREST.
(a) The Debentures shall bear interest at the rate of 14% per annum
from the date of issuance of each Debenture or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, payable semi-annually on June 2 and December 2, commencing June 2, 1995,
until the principal thereof is paid. Notwithstanding the foregoing, upon the
occurrence and during the continuance of an Event of Default, the Debentures
shall bear interest, payable on demand, at a rate of 18% per annum. Except as
otherwise provided herein,
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accrued interest shall be payable in arrears on each Interest Payment Date.
(b) To the extent that Net Cash Flow shall be insufficient to pay
interest as provided above on any Interest Payment Date, the Company shall not
be obligated to pay interest on such date and such interest shall accrue and
shall compound semi-annually at the rate provided herein.
2.04. DENOMINATIONS. The Debentures shall be issuable only in
registered form without coupons and only in denominations of U.S. $1,000 and any
integral multiple thereof, substantially in the form of Exhibit A attached
hereto.
2.05. FORM OF LEGEND FOR SECURITIES.
Unless otherwise permitted by Section 2.08, every Debenture issued
and delivered hereunder shall bear a legend in substantially the following form:
THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS. SUCH SHARES MAY BE OFFERED, SOLD OR TRANSFERRED ONLY IN
COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT AND OF ANY APPLICABLE STATE
SECURITIES LAWS AND SUBJECT TO THE PROVISIONS OF THE DEBENTURE PURCHASE
AGREEMENT, DATED AS OF DECEMBER 18, 1994, BETWEEN ROCKEFELLER CENTER PROPERTIES,
INC. AND WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V. A COPY OF SUCH
DEBENTURE PURCHASE AGREEMENT IS AVAILABLE AT THE OFFICES OF THE COMPANY.
2.06. PAYMENTS AND COMPUTATIONS. All payments of principal or
interest hereunder shall be paid to the persons in whose names such Debentures
are registered on the Security Register at the close of business on the date
fifteen days prior to the related Interest Payment Date (the "Regular Record
Date"). Principal on any Debenture shall be payable against surrender therefor
and payments of interest on Debentures shall be made, in accordance with this
Agreement and subject to applicable laws and regulations, by check mailed on or
before the due date for such payment to the person entitled thereto at such
person's address appearing on the Security Register (or, in the case of a Holder
holding not less than $5,000,000 aggregate principal amount of Debentures, by
wire transfer to such account as such Holder shall designate by written
instructions received by the Company no less than 15 days prior to any
applicable
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Interest Payment Date, which wire instruction shall continue in effect until
such time as the Holder otherwise notifies the Company or such Holder no longer
is the registered owner of such Debenture or Debentures). Subject to the
definition of Interest Period, whenever any payment hereunder shall be stated to
be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (subject to accrual of interest and
fees for the period of such extension). All computations of interest and fees
shall be made on the basis of actual number of days elapsed over a year of 360
days. Interest on each Debenture shall accrue from and include the Closing Date
or Subsequent Issuance Date, as the case may be, but exclude the date of
payment. All payments received from the Company hereunder shall be applied in
the following order: FIRST, to the payment of any costs and expenses and other
amounts due pursuant to Section 9.04; SECOND, to the payment of any amount due
under this Agreement other than any amount referred to in this sentence;
THIRD, to the ratable payment of interest due on the Debentures; and FOURTH,
to the ratable payment of principal and premium, if any, due on the Debentures.
2.07. WITHHOLDING; PAYMENT OF ADDITIONAL AMOUNTS.
(a) The Company will pay to the Holder of any Debenture who is a
United States Alien such additional amounts ("ADDITIONAL AMOUNTS") as may be
necessary in order that every net payment of the principal of and interest on
such Debenture, after deduction or withholding for or on account of any present
or future tax, assessment or governmental charge imposed upon or as a result of
such payment by the United States or any political subdivision or taxing
authority thereof or therein, will not be less than the amount provided for in
such Debenture to be then due and payable; PROVIDED, HOWEVER, that the
foregoing obligation to pay Additional Amounts will not apply to any one or more
of the following:
(1) any tax, assessment or other governmental charge which would
not have been so imposed but for (i) the existence of any present or
former connection between such Holder (or between a fiduciary, settlor,
beneficiary or member of such Holder, if such Holder is an estate, a trust
or a partnership) and the United States, including, without limitation,
such Holder (or such fiduciary, settlor, beneficiary or member) being or
having been a citizen or resident or treated as a resident thereof, or
being or having been engaged in
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trade or business or present therein, or having or having had a permanent
establishment therein, or (ii) such Holder's present or former status as a
passive foreign investment company, a personal holding company, a foreign
personal holding company, or a controlled foreign corporation for United
States tax purposes or a corporation which accumulates earnings to avoid
United States federal income tax;
(2) any tax, assessment or other governmental charge imposed on
interest received by reason of such Holder's past or present status as the
actual or constructive owner (taking into account attribution rules of
Ownership under Section 871(h)(3) of the Code) of 10% or more of the
capital or profits interest in the Company;
(3) any tax, assessment or other governmental charge which would
not have been imposed but for the failure to comply with any
certification, identification or other reporting requirements concerning
the nationality, residence, identity or connection with the United States
of the Holder or beneficial owner of such Debenture if compliance is
required by statute or by regulation of the United States Treasury
Department as a precondition to exemption from such tax, assessment or
other governmental charge;
(4) any estate, inheritance, gift, sales transfer, personal
property or any similar tax, assessment or other governmental charge;
(5) any tax, assessment or other governmental charge which is
payable otherwise than by deduction or withholding from payments of
principal of or interest on such Debenture; or
(6) any tax, assessment or other governmental charge which would
not have been so imposed but for the presentation by the Holder of such
Debenture for payment on a date more than 15 days after the date on which
such payment became due and payable or the date on which payment thereof
is duly provided for, whichever occurs later;
nor will Additional Amounts be paid with respect to any payment of principal of
or interest on any such Debenture to any United States Alien who is a fiduciary
or partnership or
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other than the sole beneficial owner of any such payment to the extent that a
beneficiary or settlor with respect to such fiduciary, a member of such a
partnership or the beneficial owner would not have been entitled to the
Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the Holder of such Debenture.
(b) All references in this Agreement to principal and interest in
respect of Debentures shall, unless the context otherwise requires, be deemed to
mean and include all Additional Amounts, if any, payable in respect thereof as
set forth in this Agreement.
2.08. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE,
RESTRICTION ON TRANSFER.
(a) SECURITY REGISTER. The Company shall maintain a register
(the "Security Register") for the registration or transfer of the Debentures.
The name and address of the Holder of each Debenture, records of any transfers
of the Debentures and the name and address of any transferee of a Debenture
shall be entered in the Security Register and the Company shall, promptly upon
receipt thereof, update the Security Register to reflect all information
received from a Holder. There shall be no more than one Holder for each
Debenture, including all beneficial interests therein.
Upon surrender for registration of transfer of any Debenture at the
office or agency of the Company, the Company shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Debentures, of
any authorized denominations and like aggregate principal amount.
At the option of the Holder, Debentures may be exchanged for other
Debentures, of any authorized denominations and of like aggregate principal
amount, upon surrender of the Debentures to be exchanged at such office or
agency. Whenever any Debentures are so surrendered for exchange, the Company
shall execute and deliver the Debentures which the Holder making the exchange is
entitled to receive.
All Debentures issued upon any registration of transfer of exchange
of Debentures shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Agreement, as the Debentures
surrendered upon such registration of transfer or exchange.
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Every Debenture presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Debentures, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Debentures, other than
exchanges pursuant to Article 8 not involving any transfer.
If the Debentures are to be redeemed in part, the Company shall not
be required (A) to issue, register the transfer of or exchange any Debenture
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of any such Debentures selected for
redemption under Section 8.01 and ending at the close of business on the day of
such mailing, or (B) to register the transfer of or exchange any Debenture so
selected for redemption in whole or in part, except the unredeemed portion of
any Debenture being redeemed in part.
(b) TRANSFER RESTRICTIONS. No Debenture may be sold, transferred
or otherwise disposed of (any such sale, transfer or other disposition is herein
referred to as a "sale"), except in compliance with this Section 2.08(b).
(i) A Holder may sell Debentures to a transferee that is an
"accredited investor" or a "qualified institutional buyer", as such terms
are defined in Regulation D and Rule 144A under the Securities Act,
respectively, provided that each of the following conditions is satisfied:
(x) such Holder or transferee represents that it is acquiring
the Debenture or Debentures for its own account and that it is not
acquiring such Debenture or Debentures with a view to, or for offer
or sale in connection with, any distribution thereof (within the
meaning of the Securities Act) that would be in violation of the
securities laws of the United States or any state thereof, but
subject, nevertheless, to the disposition of its property being at
all times within its control; and
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(y) such transferee agrees to be bound by the provisions of
this Section 2.08(b) with respect to any sale of the Debentures.
(ii) A Holder may sell its Debentures to a transferee in accordance
with Regulation S under the Securities Act; PROVIDED, that each of the
following conditions is satisfied:
(x) if such Holder would be deemed to be the Company, a
distributor or any of their respective affiliates or any person
acting on behalf of any of the foregoing for purposes of Regulation
S under the Securities Act:
(1) the Company is a "reporting issuer" as such term is
defined in Rule 902(l) under the Securities Act;
(2) any distributor (as defined in Rule 902(c) under
the Securities Act) involved in a sale of Debentures has
agreed in writing that all offers and sales of Debentures
shall be made only in accordance with the provisions of Rule
903 or Rule 904 under the Securities Act;
(3) all offering materials and documents (other than
press releases) used in connection with offers and sales of
the Debentures shall conform to the requirements of Rule
902(h)(2) under the Securities Act; and
(4) each distributor (as defined in (2) above) selling
Debentures to a distributor, dealer (as defined in Section
2(12) of the Securities Act), or a person receiving a selling
concession, fee or other remuneration in respect of the
Debentures sold sends a confirmation or other notice to the
purchaser stating that the purchaser is subject to the same
restrictions on offers and sales that apply to a distributor
prescribed by Regulation S under the Securities Act.
(y) if such exercise and/or sale by a Holder is not governed
by (x) above:
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(1) the offer of Debentures is not made to a person in
the United States;
(2) either:
(A) at the time the buy order is originated, the transferee
is outside the United States or the Holder and any person acting on
its behalf reasonably believes that the transferee is outside the
United States, or
(B) the transaction is executed in, on or through the
facilities of a designated offshore securities market and neither
the Holder nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States;
(3) no directed selling efforts are made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S under the Securities Act, as applicable; and
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
(iii) In the event of a proposed exercise or sale that does not
qualify under either Section 2.08(b)(i) or 2.08(b)(ii) above, a Holder may
sell its Debentures only if:
(x) such Holder gives written notice to the Company of its intention
to exercise or effect such sale, which notice (1) shall describe the
manner and circumstances of the proposed transaction in reasonable detail
and (2) shall designate the counsel for such Holder, which counsel shall
be reasonably satisfactory to the Company;
(y) counsel for the Holder shall render an opinion, to the effect
that such proposed sale may be effected without registration under the
Securities Act or under applicable Blue Sky laws; and
(2) such Holder or transferee complies with Sections 2.08(b)(i)(x)
and 2.08(b)(i)(y).
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(iv) Following any acquisition of the Equity Interest (as defined
in the 1985 Loan Agreement), a Holder may not sell Debentures to a
transferee if the consideration for such sale constitutes Plan Assets,
unless prior to such sale the Holder consults with the Company and, after
such consultation, determines in good faith that the sale will not
constitute a "prohibited transaction" within the meaning of Section 406 of
ERISA or Section 4975 of the Code.
2.09. MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES.
If any mutilated Debenture is surrendered to the Company, the
Company shall executed and deliver in exchange therefor a new Debentures of the
same principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company (i) evidence to its
satisfaction of the destruction, loss or theft of any Debenture and (ii) such
security or indemnity as may be required by then to save each of it and any
agent harmless, then, in the absence of notice that such Debenture has been
acquired by a bona fide purchaser, the Company shall execute and deliver, in
lieu of any such destroyed, lost or stolen Debenture, a new Debenture of a like
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith.
Every new Debenture issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debenture shall constituted an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Agreement equally and proportionately with
any and all other Debentures duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debentures.
2.10. PERSONS DEEMED OWNERS. Prior to due presentment of a
Debenture for registration of transfer, the Company and any agent of the Company
may treat the Person in whose name such Debenture is registered as the owner of
such Debenture for the purpose of receiving payment of principal of and interest
on such Debenture and for all other purposes whatsoever, whether or not such
Debenture be overdue and neither the Company nor any agent of the Company shall
be affected by notice to the contrary.
2.11. CANCELLATION. All Debentures surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Company, be delivered to the Company and shall be promptly
cancelled by it. The Company shall cancel any Debentures previously issued and
delivered hereunder which the Company may have reacquired.
SECTION 3
CONDITIONS PRECEDENT
3.01. PURCHASE OF THE DEBENTURES. The obligation of Whitehall to
purchase Debentures pursuant to Section 2.01(a) is subject to satisfaction (or
waiver by Whitehall, PROVIDED, that Whitehall shall not waive the condition
set forth in Section 3.01(k) without the consent of the Company which consent
shall not be unreasonably withheld by the Company) on or prior to the Closing
Date of the following conditions (in form and substance acceptable to Whitehall
at or prior to the Closing Date) and the Company agrees to use its best efforts
to the extent possible to satisfy such conditions as promptly as practicable
after the date hereof:
(a) EXECUTED LOAN DOCUMENTS. The other Loan Documents shall have
been duly executed and delivered by the parties thereto and Whitehall shall have
received executed copies of this Agreement and such other Loan Documents, and
the Loans shall have been made pursuant to the Loan Agreement.
(b) PROCEDURES REGARDING COLLATERAL. Completion to the
satisfaction of Whitehall of all steps necessary to create in favor of the
Collateral Agent a valid, binding and
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perfected first priority pledge of the Mortgage Note and Assignment of the
Mortgage (including recordation of the Assignment of Mortgage and all other
collateral provided for in the Collateral Trust Agreement).
(c) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. Receipt by
Whitehall of a certificate signed by the President of the Company to the effect
that at the Closing Date (i) there shall exist no Default or Event of Default,
and (ii) all representations and warranties contained herein and in the other
Loan Documents then in effect shall be true and correct in all material
respects.
(d) OPINION OF COUNSEL. Receipt by Whitehall of a legal opinion,
or opinions, in form and substance reasonably satisfactory to Whitehall and
dated as of the Closing Date, from legal counsel to the Company as to the legal
matters referred to in Section 4.
(e) CORPORATE DOCUMENTS. Receipt by Whitehall of all documents
reasonably requested by the Whitehall relating to the existence of the Company,
the validity of the Loan Documents and other matters relating thereto, in form
and substance satisfactory to Whitehall, including, but not limited to:
(i) CERTIFICATES OF AUTHORIZATION AND INCUMBENCY. Certificate
of the Secretary of the Company, dated as of the Closing Date, as to
resolutions approving and adopting the Loan Documents and authorizing the
execution and delivery thereof and as to the authority of the persons
executing such documents.
(ii) CERTIFICATES OF INCORPORATION AND BY-LAWS. Copies of the
Certificate of Incorporation and By-laws of the Company, together with all
amendments thereto certified as of the Closing Date.
(iii) CERTIFICATES OF GOOD STANDING OR EXISTENCE. Certificates
of good standing or existence for the Company issued as of a recent date
by its state of organization and each other state where the Company, by
the nature of its business, is required to qualify or register.
(f) RELATED TRANSACTIONS. Closing of the transactions relating
to the issuance of the Notes, the
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Stock Appreciation Rights and the Warrants and review and approval by the Agent
of the documents relating thereto.
(g) FEES AND EXPENSES. Payment to Whitehall and Goldman, Sachs &
Co. of the fees as set forth on Schedule 3.01(g) and reimbursement to Whitehall
of all expenses incurred in connection herewith shall be made on the Closing
Date. Such fee and expenses shall be paid out of the proceeds of the purchase
price of the Debentures.
(h) OTHER DOCUMENTS. Receipt by Whitehall of such other
certificates and documents as it may reasonably request.
(i) 1985 LOAN AGREEMENT DEFAULT. No Event of Default under the
1985 Loan Agreement, no event of the nature described in Section 5.01(a) of the
Mortgage which with the giving of notice or lapse of time or both would
constitute such an Event of Default, and no event of the nature described in
Sections 5.01(f) and (g) of the New Mortgage (as defined in the 1985 Loan
Agreement) or Sections 5.01(e) and (f) of the Consolidated Mortgage (as defined
in the 1985 Loan Agreement) shall have occurred and be continuing.
(j) MARKET CONDITIONS. There shall be no (i) suspension or
material limitation in trading in securities generally on the New York Stock
Exchange (the "NYSE"); (ii) suspension or material limitation in trading in the
Company's securities on the NYSE; (iii) general moratorium on commercial banking
activities in New York declared by either Federal or New York State authorities;
or (iv) since November 21, 1994, outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause (iv)
in the judgment of the Agent makes it impracticable or inadvisable to proceed
with the transactions contemplated hereunder on the terms and in the manner
contemplated herein.
(k) CONSENT TO ASSIGNMENT. The Company shall have obtained the
unconditional consent of RCP and RCPA to the assignment to the Collateral Agent
of the Mortgage and the Mortgage Note and such consent shall be in full force
and effect.
(l) BUSINESS COMBINATION. Except with respect to the issuance of
the Warrants and the Stock Appreciation Rights, the Company shall not have
entered into any
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arrangement or agreement in respect of a "business combination" as defined in
the Certificate of Incorporation of the Company (but disregarding any reference
to an "Acquiring Person" in such definition).
3.02. SUBSEQUENT ISSUANCES AND DELIVERY OF DEBENTURES. In
connection with each Subsequent Issue, the Company shall deliver to each
Subsequent Holder a conformed copy of this Agreement.
3.03. OBLIGATION OF THE COMPANY TO CLOSE. The obligation of the
Company to close the purchase of the 14% Debentures contemplated hereby is
subject to Goldman Sachs Mortgage Company not being in default of its obligation
to close the purchase of the Notes.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company hereby represents and warrants that on the date hereof
and on the Closing Date (before and after giving effect to the making of the
Loans):
4.01. EXISTENCE, POWER AND OWNERSHIP.
(a) It is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and is in good standing as
a foreign corporation in each other jurisdiction where ownership of its
properties or the conduct of its business requires it to be so, and it has all
power and authority under such laws and its certificate of incorporation and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
(b) It is subject to taxation as a real estate investment trust (a
"REIT") under Subchapter M of the Code and has satisfied all requirements to
continue to qualify as a REIT. It is not aware of any fact or circumstance that
could reasonably be expected to prevent it from continuing to so qualify in the
future.
4.02. AUTHORIZATION. It has the corporate power and authority to
enter into this Agreement and the other Loan Documents and to perform its
obligations under and consummate the transactions contemplated by such Loan
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Documents and has by proper action duly authorized the execution and delivery of
the Loan Documents.
4.03. NO VIOLATION OR CONFLICTS. Neither the execution and
delivery of the Loan Documents, nor the consummation of the transactions
contemplated therein, nor performance of and compliance with the terms and
provisions thereof will (i) violate or conflict with any provision of its
certificate of Incorporation or By-laws, (ii) violate any law, regulation
(including without limitation Regulation G, T, U or X), order, writ, judgment,
injunction, decree or permit applicable to it, (iii) violate or materially
conflict with any contractual provisions of, or cause an event of default under,
any indenture, loan agreement, mortgage, deed of trust, contract or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, or (iv) result in or require the creation of any lien,
security interest or other charge or encumbrance (other than those contemplated
in or in connection with the Loan Documents) upon or with respect to its
properties.
4.04. CONSENTS. No consent, approval, authorization or order of,
or filing, registration or qualification with, any court or governmental
authority or other Person is required in connection with the execution, delivery
or performance of this Agreement or any of the other Loan Documents, except for
the consent of RCP and RCPA to the assignment to the Collateral Agent of the
Mortgage and the Mortgage Note and except for any Hart-Scott-Rodino Act filings
in connection with the exercise of the Warrants.
4.05. ENFORCEABLE OBLIGATIONS. This Agreement and the other Loan
Documents have been duly executed and delivered by the Company and constitute
legal, valid and binding obligations of the Company, enforceable in accordance
with their respective terms.
4.06. FINANCIAL CONDITION; SECURITIES AND EXCHANGE COMMISSION
FILINGS. (a) Since January 1, 1992, the Company has made all required filings
with the Securities and Exchange Commission, and such filings are complete and
correct in all material respects and do not contain any untrue statement of a
material fact or omit any material fact required to be stated therein necessary
to make the statements therein not misleading. The financial statements of the
Company contained in such filings are true and correct and fairly present the
financial condition and results of operations of the Company as of their dates
and
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for the respective periods covered thereby; such financial statements were
prepared in accordance with generally accepted accounting principles applied on
a consistent basis (except as noted therein); and since the date of such
financial statements, except as disclosed in such filings with the Securities
and Exchange Commission made on or prior to the date hereof, there have occurred
no changes or circumstances which have had or are likely to have a material
adverse effect on the Company and the financial statements referenced above.
(b) The Company has delivered to the Agent true and correct copies
of correspondence between the Company and the Securities and Exchange Commission
relating to the Company's filing on Form 10-K for the year ended December 31,
1993.
4.07. NO DEFAULT. No Default or Event of Default presently
exists.
4.08. LIENS. Except for Permitted Liens, it has good and
marketable title to all of its properties and assets free and clear of all
Liens.
4.09. INDEBTEDNESS. It has no Indebtedness (including, without
limitation, any Guaranty Obligations) except for the Notes, the Debentures and
the other Indebtedness specified on Schedule 4.09 hereto.
4.10. LITIGATION. Except as specified in Schedule 4.10 hereto,
there are no actions, suits or legal, equitable, arbitration or administrative
proceedings (including those relating to environmental matters), pending or, to
the knowledge of the Company threatened, against the Company which, if adversely
determined, would have a material adverse effect on the financial condition of
the Company. The Company is not aware of any fact or condition in respect of
the Real Estate that could reasonably be expected to result in any such action,
suit, or proceeding or in the incurrence of any material liability in respect of
environmental matters.
4.11. MATERIAL AGREEMENTS. Except as specified in Schedule 4.11
hereto or except with respect to agreements filed as exhibits to its filings
with the Securities and Exchange Commission prior to the date hereof, it is not
a party to any material contract, lease, loan agreement, indenture, mortgage,
security agreement or other material agreement or obligation other than (i) the
Loan Documents,
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(ii) the documents evidencing the Indebtedness described in Section 4.09, and
(iii) the Mortgage, Mortgage Note, 1985 Loan Agreements and any agreement or
obligation relating to the mortgage loan evidenced by the foregoing. Except as
specified in Schedule 4.11 hereto or except as disclosed in its filings with the
Securities and Exchange Commission prior to the date hereof, it is not engaged
in any negotiations with, and has no plans or intention to enter into any other
agreements, or modifications of agreements, with RCP or RCPA.
4.12. TAXES. It has filed, or caused to be filed, all material
reports and returns with respect to taxes (federal, state, local and foreign)
required to be filed and such reports and returns were true, complete and
accurate in all material respects and it has paid all amounts of taxes shown
thereon to be due (including interest and penalties) and has paid all other
material taxes, fees, assessments and other governmental charges (including
documentary stamp taxes and intangible taxes) owing (or necessary to preserve
any Liens in favor of the Collateral Agent), by it, except for such taxes (i)
which are not yet delinquent or (ii) as are being contested in good faith and by
proper proceedings, and against which adequate reserves are being maintained in
accordance with generally accepted accounting principles, but only so long as
there is no material liability or any risk of material loss, sale or forfeiture
of any collateral pledged to the Collateral Agent. It is not aware of any
proposed material tax assessments against it. No extension of time for
assessment or payment by the Company of any federal, state or local tax is in
effect. All mortgage recording taxes in respect of the Mortgage have been paid.
4.13. COMPLIANCE WITH LAW. It is in compliance with all laws,
rules, regulations, orders and decrees applicable to it or to its properties.
4.14. ERISA. Except for the Retirement Income Plan for Salaried
Employees of Rockefeller Group, Inc., as amended and supplemented in the
ordinary course of business from time to time (the "RGI Plan"), neither it nor
its ERISA Affiliates have established, maintained or been obligated to
contribute to any Plan at any time during the five calendar years preceding the
Closing Date.
4.15. SUBSIDIARIES. It has no Subsidiaries other than Deucalion
Capital Corporation, a Delaware corporation.
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4.16. USE OF PROCEEDS; MARGIN STOCK. It will use the proceeds of
the Sale of Debentures hereunder on the Closing Date solely to retire its
outstanding commercial paper, to pay fees and expenses in connection with this
Agreement and to satisfy the interest rate swap agreements specified in
paragraph B. of Schedule 4.09; PROVIDED, that, if any such commercial paper
may not be prepaid on the Closing Date, the Company will place sufficient funds
for prepayment in full thereof in escrow with the applicable paying agent. None
of such proceeds will be used for the purpose of purchasing or carrying any
"margin stock" as defined in Regulation G, T, U, or X or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry "margin stock" or for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of Regulation G, T, U, or X.
As of the Closing Date the Company does not own any "margin stock".
4.17. GOVERNMENT REGULATION. It is not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, or
the Interstate Commerce Act, each as amended. In addition, it is not (i) an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, and is not controlled by such a
company, or (ii) a "holding company," or a "Subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "Subsidiary" or a
"holding company," within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
4.18. PARI PASSU OBLIGATIONS. The obligations of the Company
hereunder and under the Debentures and under the Loan Agreement and the Notes
rank and will at all times rank PARI PASSU with all other obligations of the
Company in respect of its unsubordinated indebtedness for borrowed money, and
there is no indebtedness for borrowed money of the Company senior to the
Debentures or the Notes.
4.19. OWNERSHIP OF REAL ESTATE. The Company has good and
marketable title to the Mortgage Note, the Mortgage, the letters of credit (as
specified on Schedule II to the Collateral Trust Agreement (the "Letters of
Credit")) and the Title Insurance, free and clear of all liens, except (i) the
liens to be granted pursuant to the Loan Documents and (ii) the restrictions on
transfer contained in the 1985 Loan Agreement, the Letters of Credit and the
Title Insurance. The Company has not granted to any other person any rights,
recorded or unrecorded, in the Mortgage or the
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Mortgage Note. To the best of the Company's knowledge, no person, other than
the Company, has any right or option, recorded or unrecorded, to acquire the
Real Estate or any portion thereof or interest therein. The Mortgage remains a
valid lien on all the Real Estate and on the Lessor's interest in all Leases (as
defined in the Mortgage), with a priority in all material respects no less than
its priority as of September 19, 1985 except as such priority may be affected by
the subordination referred to in clause (ii) of Recital G to the amendment and
restatement of the Mortgage dated as of December 1, 1988, the outstanding
aggregate principal amount of the Mortgage Note is $1,300,000,000, and no
default exists thereunder.
4.20. NO PENDING CONDEMNATION OR EMINENT DOMAIN. The Company has
no knowledge of any pending or threatened condemnation or eminent domain
proceedings which would affect the Real Estate.
4.21. CAPITALIZATION. As of the date hereof, the Company's
authorized capital stock consists of 150,000,000 shares of Common Stock and
38,260,704 shares of Common Stock were issued and outstanding, no shares of
Common Stock were held in treasury, and there were no outstanding employee stock
options. The Common Stock constitutes all of the issued and outstanding capital
stock of the Company. There are no other classes of capital stock of the
Company authorized or outstanding. The outstanding Common Stock is duly
authorized, validly issued, fully paid and non-assessable. Except for the
transactions contemplated by the Loan Documents and except in respect of the
Indenture Securities, there are no preemptive or other outstanding rights,
options, warrants, conversion rights or agreements or commitments of any
character relating to the Company's authorized and issued, unissued or treasury
shares of capital stock, and the Company has not issued any debt securities,
other securities, rights or obligations that are currently outstanding and are
convertible into or exchangeable for, or giving any Person a right to subscribe
for or acquire, capital stock of the Company.
SECTION 5
AFFIRMATIVE COVENANTS OF THE COMPANY
The Company hereby covenants and agrees that so long as this
Agreement is in effect and until the Debentures, together with interest, fees
and other obligations hereunder, have been paid in full:
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5.01. INFORMATION COVENANTS. The Company will furnish, or cause
to be furnished, to each Holder:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within 90 days after the close of each fiscal year of the Company, a
balance sheet of the Company as at the end of such fiscal year together with
related statements of income and retained earnings and of cash flows for such
fiscal year, all in reasonable detail and examined by independent certified
public accountants of recognized national standing whose opinion shall be to the
effect that such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis (except
for changes with which such accountants concur) and shall not be qualified as to
the scope of the audit, all of the foregoing to be in reasonable detail and in
form and substance satisfactory to the Holder.
(b) AUDITOR'S CERTIFICATE. At the time of delivery of the
financial statements provided for in Section 5.01(a) hereof, a certificate from
the accountants examining such financial statements, that, to the best of their
knowledge, no Event of Default exists, or, if any Event of Default does exist,
providing a reasonably detailed summary of all relevant information known to
such accountants.
(c) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in
any event within 45 days after the end of each fiscal quarter of each fiscal
year of the Company, (i) except for the fourth fiscal quarter of each fiscal
year, a balance sheet of the Company as at the end of such quarterly period
together with related statements of income and retained earnings for such
quarterly period and for the portion of the fiscal year ending with such period,
all in reasonable detail and in form and substance satisfactory to Required
Holders, and accompanied by a certificate of the President of the Company as
being true and correct and as having been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, subject to changes
resulting from audit and normal year-end audit adjustments, (ii) a report
showing the calculation of Net Cash Flow for such fiscal quarter and (iii)
estimates made in good faith by the Company of the items specified in (ii) above
relating to the next fiscal quarter. For so long as the Company is required to
file reports pursuant to the Securities Exchange Act of 1934, the Company may
satisfy its obligations under Section 5.01(a) and 5.01(c)(i) hereof by delivery
to Whitehall, within the time periods specified in
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such Sections, of copies of its reports on Form 10-K and Form 10-Q,
respectively, with the Securities and Exchange Commission.
(d) OFFICER'S CERTIFICATE. At the time of delivery the financial
statements provided for in Section 5.01(c) hereof, a certificate of the
President of the Company substantially in the form of Exhibit B to the effect
that no Default or Event of Default exists, or, if any Default or Event of
Default does exist, specifying the nature and extent thereof and what action the
Company proposes to take with respect thereto.
(e) AUDITOR'S REPORTS. Promptly upon receipt thereof, a copy of
any other report or management letter submitted by independent accountants to
the Company in connection with any annual, interim or special audit of the books
of Company.
(f) REAL ESTATE AND OTHER INFORMATION. Promptly upon receipt
thereof, copies of all financial information, reports and other documents
received by the Company pursuant to the 1985 Loan Agreement and the Mortgage,
including without limitation, all documents delivered to Company pursuant to
Sections 6.05 and 6.08 of the 1985 Loan Agreement and Sections 704 and 1010 of
the Mortgage.
(g) OTHER INFORMATION. With reasonable promptness upon request,
such other information regarding the business, properties or financial condition
of the Company as any Holder may reasonably request, including without
limitation copies or summaries of, as the case may be, all non-routine
correspondence to or from and summaries of contacts and conversations with RCP,
RCPA or any of their affiliates, subject to compliance with any applicable
confidentiality restrictions agreed to in good faith.
(h) NOTICE OF DEFAULT OR LITIGATION. Upon the Company obtaining
knowledge thereof, it will give written notice to each Holder promptly, but in
any event within five Business Days, of the occurrence of any of the following
with respect to the Company: (i) the occurrence of an event or condition
consisting of a Default, specifying the nature and existence thereof and what
action the Company proposes to take with respect thereto, (ii) the pendency or
commencement of any litigation, arbitral or governmental proceeding against the
Company in which damages are sought or environmental remediation demanded which
exceeds $1,000,000 in any instance or $5,000,000 in the aggregate or
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which might otherwise materially adversely affect the business, properties,
assets, condition (financial or otherwise) or prospects of the Company, (iii)
any levy of an attachment, execution or other process against its assets in
excess of $1,000,000, (iv) the occurrence of an event or condition which shall
constitute a default or event of default under any other agreement for borrowed
money in excess of $1,000,000, (v) any development in its business or affairs
which has resulted in, or which the Company reasonably believes may result in, a
material adverse effect on the business, properties, assets, condition
(financial or otherwise) or prospects of the Company, (vi) the institution of
any proceedings against, or the receipt of notice of potential liability or
responsibility for any violation, or alleged violation of, any federal, state or
local law, rule or regulation, the violation of which could give rise to a
material liability, or have a material adverse effect on, the business, assets,
properties condition (financial or otherwise) or prospects of the Company, or
(vii) the occurrence of an event or condition which may render the Company
unable to qualify as a REIT under the Code.
(i) CHANGES TO INDEBTEDNESS. Within 30 days prior thereto,
notice of any proposed extension, renewal, refinancing or modification of
Indebtedness made pursuant to Section 6.01(iv) or Section 6.14.
5.02. PRESERVATION OF EXISTENCE AND FRANCHISES. The Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights, franchises and authority and will at all times
take all reasonable steps necessary to qualify to be taxed as a REIT as long as
a REIT is accorded substantially the same treatment under the United States
income tax laws from time to time in effect as under Sections 856-860 of the
Code, in effect at the date of this Agreement, as originally executed.
5.03. BOOKS, RECORDS AND INSPECTIONS. The Company will keep
complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of generally accepted accounting
principles applied on a consistent basis (including the establishment and
maintenance of appropriate reserves). The Company will permit, on reasonable
notice, any Holder to visit and inspect its books of account and records and any
of its properties or assets and to discuss the affairs, finances and accounts of
the Company with, and be advised as
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to the same by, its officers, directors and independent accountants.
5.04. COMPLIANCE WITH LAW. The Company will comply in all
material respects with all applicable laws, rules, regulations and orders of,
and all applicable restrictions imposed by, all applicable governmental bodies,
foreign or domestic, or authorities and agencies thereof (including
quasi-governmental authorities and agencies), in respect of the conduct of its
business and the ownership of its property.
5.05. INSURANCE. Except as specified in Schedule 5.05, the
Company will at all times maintain in full force and effect insurance (including
worker's compensation insurance, liability insurance, casualty insurance and
business interruption insurance) in such amounts, covering such risks and
liabilities and with such deductibles or self-insurance retentions as are in
accordance with normal industry practice.
5.06. MAINTENANCE OF PROPERTY. The Company will maintain and
preserve its properties and assets in good repair, working order and condition,
normal wear and tear excepted, and will make, or cause to be made, in such
properties and assets from time to time all repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto as may be needed or
proper, to the extent and in the manner customary for companies in similar
businesses.
5.07. PLAN ASSETS. The Company will use its best efforts to not
take any action that would cause it to be deemed to hold Plan Assets at any
time.
5.08. INTERCREDITOR AGREEMENT. The Company will comply with the
terms of the Intercreditor Agreement in respect of payments to be made in
respect of the Debentures and the Notes notwithstanding that such terms may
alter the provisions set forth herein, in the Debentures, in the Loan Agreement
or in the Notes. Each Holder agrees by accepting a Debenture to be bound by the
terms and provisions of the Intercreditor Agreement as if such Holder were a
party thereto.
5.09. RESALE OF DEBENTURES. The Company, upon the request of the
Required Holders from time to time, will exchange the Debentures for any other
evidences of indebtedness or debt securities, whether notes, debentures
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or otherwise (the "New Debt"), and shall enter into any such agreements, whether
in the form of an amendment hereto, an indenture, a debenture purchase agreement
or otherwise (the "New Documents"), as shall be deemed necessary or desirable by
the Required Holders in connection with the resale of the Debentures, whether as
a private placement, a registered public offering or otherwise, provided only
that the aggregate principal amount of the New Debt shall be equal to the unpaid
principal amount of the Debentures at the time of exchange and the business
terms (including aggregate interest) of the New Documents shall be substantially
the same as the business terms (including affirmative and negative covenants)
contained herein. Notwithstanding the foregoing, it is understood by the
parties that (a) the New Debt shall be in such denominations and tranches and
have such other features (including, without limitation, intercreditor and/or
priority arrangements) as may be deemed appropriate by the Required Holders, (b)
the New Documents will contain additional terms and provisions governing the
voting rights of the holders of the New Debt including the requirement of
unanimous approval of the holders of New Debt for waivers or amendments in
respect of Section 6.12 and any release of security for the New Debt, in each
case, to the extent desired by the Required Holders, any provision relating to
payment of interest, repayment of principal or payment of any fees or
indemnities and any other provisions customarily so treated, (c) the New
Documents will contain such additional terms and provisions as are customarily
contained in such documents governing the issuance of debt including provisions
governing the rights of indenture trustees and/or administrative agents and bank
set-off and sharing provisions, as applicable, (d) the New Documents will
contain such other additional terms and provisions as are reasonably requested
by the Required Holders in order to effectuate the resale of the Debentures and
such other additions hereto or variations herefrom as are requested by any
rating agency rating the New Debt, including, without limitation, requiring
accrual of payments that are due in escrow or trust accounts, except to the
extent otherwise prohibited by the 1985 Indenture and except that no such escrow
shall be required in respect of regularly scheduled payments on account of the
Debentures and (e) the New Documents will be in such form and will contain such
terms and provisions as are necessary to comply with all applicable securities
laws, including, in the case of an indenture, the Trust Indenture Act of 1939,
as amended. In furtherance of the foregoing, the Company will provide the
Required Holders with all such documents and information, financial or
otherwise, assist in all such due diligence and
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do such other things and enter into such other agreements as are necessary or,
in the judgment of the Required Holders, desirable to resell the Debentures and
carry out the intent of this Section 5.09. The term "Holder" or "Required
Holders" as used in this Agreement shall include any trustee for an indenture
pursuant to which the New Debt is issued.
SECTION 6
NEGATIVE COVENANTS
The Company hereby covenants and agrees that so long as this
Agreement is in effect and until the Debentures, together with all interest,
fees and other obligations hereunder, have been paid in full:
6.01. INDEBTEDNESS. The Company will not contract, create,
incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness arising under this Agreement and the other Loan
Documents;
(ii) Current liabilities for taxes and assessments incurred or
arising in the ordinary course of business;
(iii) Indebtedness in respect of current accounts payable or accrued
(other than for borrowed money or purchase money obligations) and incurred
in the ordinary course of business; PROVIDED, that all such liabilities,
accounts and claims shall be paid when due (or in conformity with
customary trade terms);
(iv) Indebtedness in effect on the date hereof (as specified in
Schedule 4.09) and any extensions, renewals or refinancings thereof in an
amount not to exceed the outstanding accreted amount thereof on the date
of refinancing; PROVIDED that no such Indebtedness may be renewed,
extended or refinanced if, as a result thereof, quarterly debt service of
the Company would be materially increased or Net Cash Flow of the Company
would be materially decreased;
(v) Unsecured Indebtedness in an aggregate amount not to exceed
$10,000,000 at any time outstanding incurred by the Company to cover
working capital needs; and
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(vi) Indebtedness in respect of issuances of Debentures pursuant to
Section 2.01(b).
6.02. LIENS. Except with respect to Permitted Liens, the Company
will not (i) contract, create, incur, assume or permit to exist any Lien with
respect to any of its property or assets of any kind (whether real or personal,
tangible or intangible), whether now owned or hereafter acquired, (ii) sell any
of its property or assets subject to an understanding or agreement, contingent
or otherwise, to repurchase such property or assets (including sales of accounts
receivable or notes with recourse to it) or (iii) assign any right to receive
income.
6.03. NATURE OF BUSINESS. The Company (i) will not alter the
character or conduct of its business from that conducted and contemplated as of
the Closing Date which is and shall be limited to the ownership and management
of the Mortgage, the Mortgage Note and the partnership interests in any
partnership which owns the Real Estate and (ii) will not permit its Subsidiary
to engage in any business activity whatsoever or to own any assets or incur any
liabilities.
6.04. CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS. The
Company will not dissolve, liquidate, or wind up its affairs, and will not enter
into any transaction of merger or consolidation, or sell or otherwise dispose of
all or any part of its property or assets or, other than in the ordinary course
of its business, purchase, lease or otherwise acquire (in a single transaction
or a series of related transactions) all or any part of the property or assets
of any Person, except that the Company may merge or be consolidated with any
other U.S. corporation so long as (i) the Company shall be the surviving
corporation, (ii) after giving effect to any such transaction, no Default or
Event of Default shall exist, including, without limitation, any Default in
respect of Section 6.03, and (iii) the surviving corporation shall have a number
of authorized, issued and outstanding shares of capital stock no greater than
that of the Company immediately prior to such transaction.
6.05. ADVANCES, INVESTMENTS AND LOANS. The Company will not lend
money or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any Person except for Permitted Investments.
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6.06. TRANSACTIONS WITH AFFILIATES. The Company will not enter
into any transaction or series of transactions with any stockholder, employee or
Affiliate other than on terms and conditions substantially as favorable to the
Company as would be obtainable by it in a comparable arm's-length transaction
with a Person other than a stockholder, employee or Affiliate, except for
employment contracts and other employee benefit plans and arrangements entered
into in the ordinary course of business and approved by the compensation
committee of the Board of Directors of the Company, and arrangements with
directors approved by the Board of Directors of the Company.
6.07. OPERATING LEASE OBLIGATIONS. The Company will not enter
into, assume or permit to exist any obligations for the payment of rent for any
property (real, personal or mixed, tangible or intangible) under leases,
subleases or similar arrangements as lessee, except for the Company's leases for
office space on reasonable terms.
6.08. SALE AND LEASEBACK. The Company will not enter into any
arrangement pursuant to which it will lease back, as lessee, any property (real,
personal or mixed, tangible or intangible) previously owned by it and sold or
otherwise transferred or disposed of, directly or indirectly, to the
owner-lessor of such property.
6.09. GOVERNING DOCUMENTS. The Company will not propose or
initiate any action in respect of any amendment, modification, supplement,
waiver or termination of any provisions of its Certificate of Incorporation or
By-Laws, except for an amendment to its Certificate of Incorporation to
eliminate or modify the "Limit" provided for in Article Ninth (A) thereof.
6.10. ERISA. Except for the RGI Plan, the Company will not
establish any Plan or take any actions that would cause it to become obligated
under any Plan.
6.11. DIVIDENDS. The Company will not declare or pay any
dividend on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, Common Stock, (i) subject to clauses (ii)
and (iii) below, in an amount in excess of $.80 per share per annum, adjusted to
reflect any stock splits, stock dividends or similar transactions, unless and to
the extent required to meet qualification rules for a REIT requiring
distributions of 95% (or such other percentage as may be
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required by a change in the Code applicable to REITs) (such required
distributions are referred to herein as "REIT Distributions"), (ii) at any time
when a payment default exists under the Mortgage, the Mortgage Note or the 1985
Loan Agreement except for REIT Distributions and (iii) if the Company shall not
qualify to be taxed as a REIT under the Code. The Company will not make any
payment on account of a Warrant or Stock Appreciation Right in an amount per
share in excess of the positive difference between (x) any amounts per share
paid to holders of Common Stock pursuant to the preceding sentence and (y) $.60
per annum, adjusted to reflect any stock splits, stock dividends or similar
transactions; PROVIDED, that this Section 6.11 shall not operate to prevent
the exercise of Warrants or conversion of Stock Appreciation Rights in
accordance with their respective terms or any payment on 14% Debentures issued
on conversion of Stock Appreciation Rights.
6.12. MODIFICATIONS TO MORTGAGE. The Company will not amend or
in any way waive or modify any payment provision of the Mortgage or the Mortgage
Note and will not amend Article X of the 1985 Loan Agreement or the Purchase
Option.
6.13. MODIFICATION OR PREPAYMENT OF INDEBTEDNESS. The Company
will not modify any Indebtedness if (i) quarterly debt service of the Company
would be materially increased or Net Cash Flow of the Company would be
materially decreased as a result thereof or (ii) the business, properties,
assets, condition (financial or otherwise) or prospects of the Company might
otherwise be materially adversely affected. The Company will not prepay or
acquire any of its Indebtedness (other than as required by the terms thereof as
in effect on the date hereof or permitted hereunder in respect of the Debentures
or under the Loan Agreement in respect of the Notes and except for the
Indebtedness permitted under Section 6.01(v)) and will cause to remain
outstanding in full force and effect until their respective termination dates
the interest rate swap agreements specified in paragraph A of Schedule 4.09.
6.14. USURY. The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Debenture Purchase Agreement;
and the Company (to the extent that it may lawfully do so) hereby
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expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
any Holder, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 7
EVENTS OF DEFAULT
7.01. EVENTS OF DEFAULT. An Event of Default shall exist upon
the occurrence of any of the following specified events (each an "Event of
Default"):
(a) PAYMENT. The Company shall (i) default in the payment when
due of any principal owing hereunder or under the Debentures (including
any mandatory redemption required hereunder or any voluntary redemption
after giving notice thereof in accordance with Section 8.01), or (ii)
default in the payment when due of any interest, fees or other amounts
owing hereunder, under the Debentures, the Security Documents, the
Collateral Trust Agreement or the Letter Agreement or in connection
herewith and such default referred to in this subparagraph (ii) shall
continue unremedied for at least ten days; or
(b) REPRESENTATIONS. Any representation, warranty or statement
made on the date hereof or deemed to be made as of the Closing Date by the
Company herein or in any of the Security Documents, the Collateral Trust
Agreement or the Letter Agreement or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto shall
prove untrue in any material respect on the date as of which it was made
or deemed to have been made; or
(c) COVENANTS. The Company shall (i) default in the due
performance or observance of any term, covenant or agreement contained in
Section 5.01(h)(i) or in Section 6 (other than Sections 6.06, 6.07 and
6.10), or (ii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in subsection
(a), (b) or (c) (i) of this Section 7.01) contained in this Agreement, and
such default referred to in this subparagraph (ii) shall continue
unremedied for a period of at least 30 days after notice from any Holder
of such default; or
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(d) OTHER AGREEMENTS. The Company shall default in the due
performance or observance of any term, covenant or agreement in the
Security Documents, the Collateral Trust Agreement or the Letter Agreement
(subject to applicable grace or cure periods, if any) applicable to it, or
the Security Documents, the Collateral Trust Agreement or the Letter
Agreement shall fail to be in full force and effect or to give the
Collateral Agent and the Holders, the Liens, rights, powers and privileges
purported to be created thereby (except insofar as such failure is due to
the act of the Collateral Agent or any Holder); or
(e) BANKRUPTCY, ETC. (i) The Company shall commence a voluntary
case concerning itself under the Bankruptcy Code in Title 11 of the United
States Code (as amended, modified, succeeded or replaced, from time to
time, the "Bankruptcy Code"); or (ii) an involuntary case is commenced
against the Company under the Bankruptcy Code and the petition is not
dismissed within 90 days after commencement of the case; or (iii) a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of all or substantially all of the property of the Company; or (iv)
the Company commences any other proceeding under any reorganization,
arrangement, adjustment of the debt, relief of creditors, dissolution,
insolvency or similar law of any jurisdiction whether now or hereafter in
effect relating to the Company; or (v) there is commenced against the
Company any such proceeding which remains undismissed for a period of 90
days after commencement of such proceeding; or (vi) the Company is
adjudicated insolvent or bankrupt; or (vii) any order of relief or other
order approving any such case or proceeding is entered; or (viii) the
Company suffers appointment of any custodian or the like for it or for any
substantial part of its property and such appointment continues unchanged
or unstayed for a period of 90 days after commencement of such
appointment; or (ix) the Company makes a general assignment for the
benefit of creditors; or (x) any corporate action is taken by the Company
for the purpose of effecting any of the foregoing; or
(f) DEFAULTS UNDER OTHER AGREEMENTS. (i) The Company shall (x)
default in any payment in an amount of $1,000,000 or more (beyond the
applicable grace period with respect thereto, if any) with respect to any
other Indebtedness, or (y) default in the
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observance or performance of any agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event or condition shall occur
or condition exist, the effect of which default, in the case of (y), or
other event or condition is to cause, or permit, the holder or holders of
such Indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is
required), any such Indebtedness, in an amount of $1,000,000 or more, to
become due prior to stated maturity, or (ii) any such Indebtedness of the
Company, in an amount of $1,000,000 or more, shall be declared due and
payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof.
(g) JUDGMENTS. One or more final judgments or decrees shall be
entered against the Company involving a liability of $1,000,000 or more in
any instance, or $5,000,000 or more in the aggregate for all such
judgments and decrees collectively (not paid or fully covered by insurance
provided by a carrier who has acknowledged coverage) and any such
judgments or decrees shall not have been vacated, discharged, paid or
stayed or bonded pending appeal within the time permitted to appeal
therefrom.
7.02 REMEDIES. Upon the occurrence of an Event of Default, the
Required Holders, by written notice to the Company, may take any of the
following actions without prejudice to its rights to enforce its claims against
the Company, except as otherwise specifically provided for herein:
(i) ACCELERATION OF DEBENTURES. Declare the unpaid principal of
and any accrued interest in respect of the Debentures to be due whereupon
the same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Company;
(ii) ENFORCEMENT OF RIGHTS. Enforce any and all Liens and
security interests in favor of the Holders in respect of the Debentures
and any other amounts due, including, without limitation, all rights and
interests created and existing under the Security Documents, the
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Collateral Trust Agreement and the Letter Agreement and all rights of
set-off; and
(iii) WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the outstanding Debentures may on behalf
of the Holders of all the Debentures waive any past default hereunder,
except a default:
(1) in the payment of the principal of or any interest on any
Debenture, or
(2) in respect of a covenant or provision hereof which under
Section 9.05 cannot be modified or amended without the consent of
the Holder of each outstanding Debenture.
Upon any such waiver, such default ceases to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Agreement; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
PROVIDED, HOWEVER, that, notwithstanding the foregoing, if an Event of
Default specified in Section 7.01(e) shall occur, then the Debentures shall
immediately become due and payable without the giving of any notice or other
action by any Holder.
SECTION 8
REDEMPTION
8.01. REDEMPTION.
(a) VOLUNTARY REDEMPTION. (i) Provided the Notes have been paid
in full or funds for such payment have been irrevocably deposited with an agent
(reasonably satisfactory to the Agent) for such payment, the Company shall have
the right to redeem the Debentures at any time on or after December 30, 2000 in
whole or in part upon 30 days advance written notice in accordance with Section
8.01(d) to each Holders which notice shall specify the date on which the Company
will effect such redemption (a "Redemption Date").
(ii) Debentures redeemed from December 30, 2000 through December
31, 2001, inclusive, shall be redeemed at 105% of the principal amount of
Debentures redeemed; debentures redeemed from January 1, 2002 through
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December 31, 2002, inclusive, shall be redeemed at 103% of the principal amount
of Debentures redeemed; debentures redeemed from January 1, 2003 through
December 31, 2003, inclusive, shall be redeemed at 101.5% of the principal
amount of Debentures redeemed; and Debentures redeemed thereafter shall be
redeemed at 100% of the principal amount of Debentures redeemed, in each case
with interest accrued to the date of redemption.
(b) MANDATORY REDEMPTIONS. On each Interest Payment Date prior
to December 31, 2000, provided that the Notes have been paid in full, the
Company shall redeem Debentures in an aggregate amount equal to Net Cash Flow
calculated as of the last day of the most recent fiscal quarter at 100% of the
aggregate principal amount of the Debentures redeemed.
(c) PARTIAL REDEMPTION. (i) If less than all of the then
outstanding Debentures are to be redeemed on any Redemption Date, the Company
shall (x) include in the notice provided to the Holders pursuant to Section
8.01(d) the principal amount of Debentures then outstanding and the principal
amount of Debentures to be redeemed and (y) effect such redemption (to the
extent practicable within $1,000 increments) on a PRO RATA basis.
(ii) Any Debenture which is to be redeemed only in part shall be
surrendered at the place specified in the notice delivered to Holders pursuant
to Section 8.01(d) (with due endorsement by, or a written instrument of transfer
in form satisfactory to the Company duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute and deliver
to the Holder of such Debenture without service charge, a new Debenture or
Debentures of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Debenture so surrendered.
(d) NOTICE OF REDEMPTION. Notice of redemption shall be given
by first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder, at his address appearing in
the Security Register (as defined below).
All notices of redemption shall state:
(i) the Redemption Date,
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(ii) the Redemption Price,
(iii) that on the Redemption Date the Redemption Price will become
due and payable upon each Debenture and that interest thereon will cease
to accrue on and after said date, and
(iv) that the place or places where each Debenture is to be
surrendered for payment of Redemption Price.
Notice of redemption of Debentures to be redeemed at the election of
the Company shall be given by the Company and at the expense of the Company and
shall be irrevocable.
(e) INTEREST AFTER REDEMPTION DATE. On any Redemption Date in
which the then outstanding Debentures are to be redeemed in whole, the then
outstanding Debentures shall become due and payable at the Redemption Price, and
from and after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Debentures shall cease to bear
interest. Upon surrender of any such Debenture for redemption in accordance
with the notice specified in Section 8.01(d), such Debenture shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date. If any Debenture called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate plus such additional rate
prescribed in Section 2.03.
SECTION 9
MISCELLANEOUS
9.01. NOTICES. Except as otherwise expressly provided herein,
all notices and other communications shall have been duly given and shall be
effective (i) when delivered, (ii) when transmitted via telecopy (or other
facsimile device) to the number set out below, (iii) the day following the day
on which the same has been delivered prepaid to a reputable national overnight
air courier service or (iv) the third Business Day following the day on which
the same is sent by certified or registered mail, postage prepaid, in each case
to the respective parties at the address set forth below, or at such other
address as such party may specify by written notice to the other party hereto:
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if to the Company: 1270 Avenue of the Americas
New York, New York 10020
Attention: Secretary
Telephone: 698-1440
Telecopy: 698-1453
if to the Holders: at the addresses set forth in the Security
Register
9.02. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS.
(a) This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the respective successors and assigns of the parties
hereto; PROVIDED that the Company may not assign and transfer any of its
interests without prior written consent of each Holders.
Nothing in this Agreement or in the Debentures, express or implied,
shall give to any Person other than the parties hereto and the holders from time
to time of Stock Appreciation Rights, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
9.03. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of any Holder in exercising any right, power or privilege hereunder or
under the Security Documents, the Collateral Trust Agreement or the Letter
Agreement and no course of dealing between the Company and any Holder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under the Security Documents, the
Collateral Trust Agreement or the Letter Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein are cumulative
and not exclusive of any rights or remedies which the Holders would otherwise
have. No notice to or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Holders to any other
or further action in any circumstances without notice or demand.
9.04. PAYMENT OF EXPENSES; INDEMNIFICATION. The Company agrees
to:
(i) pay all reasonable out-of-pocket costs and expenses of
Whitehall and the Holders in connection
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with the negotiation, preparation, execution and delivery and
administration of this Agreement, the Security Documents, the Collateral
Trust Agreement and the Letter Agreement and the documents and instruments
referred to therein and in connection with the exchange of the Debentures
for the New Debt, the negotiation, preparation, execution and delivery of
any New Documents as contemplated by Section 5.09 (including, without
limitation, the fees and expenses of Sullivan & Cromwell and any indenture
trustee, administrative agent or like parties in respect of the New Debt,
and the resale of the New Debt and the reasonable travel expenses of
employees of Whitehall and any Holder) and any amendment, waiver or
consent relating hereto or thereto including, but not limited to, any such
amendments, waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the Company
under this Agreement and of the Holders in connection with enforcement of
the Security Documents, the Collateral Trust Agreement and the Letter
Agreement and the documents and instruments referred to therein
(including, without limitation, the fees and disbursements of counsel for
the Company);
(ii) pay and hold the Holders harmless from and against any and all
present and future stamp and other similar taxes with respect to the
foregoing matters and save the Holders harmless from and against any and
all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to the Holders) to pay such taxes;
(iii) indemnify the Holders, their respective officers, directors,
partners, employees, representatives, affiliates and agents from and hold
each of them harmless against any and all losses, liabilities, claims,
damages or expenses incurred by any of them as a result of, or arising out
of, or in any way related to, or by reason of, any investigation,
litigation or other proceeding (whether or not any Holder is a party
thereto) related to the entering into and/or performance of this
Agreement, the Security Documents, the Collateral Trust Agreement or the
Letter Agreement or the use of proceeds of the Debentures hereunder or the
consummation of any other transactions contemplated in this Agreement, the
Security Documents, the Collateral Trust Agreement or the Letter Agreement
(including the resale of the Debentures and the
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exchange of the Debentures as contemplated by Section 5.09), including,
without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding, as the same are incurred (but excluding any such losses,
liabilities, claims, damages or expenses to the extent incurred by reason
of gross negligence or willful misconduct on the part of the Person to be
indemnified); and
(iv) if the indemnification provided for in Section 9.04(iii) is
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses (or
actions in respect thereof) referred to therein, then the Company shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and
the Holders on the other from the consummation of the transactions
contemplated in this Agreement. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law,
then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Holders on the other in connection with
the actions which resulted in such losses, liabilities, claims, damages or
expenses (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Holders on the other hand shall be deemed to be in
the same proportion as the total net proceeds from the Debentures (before
deducting expenses) received by the Debentures bear to the net fees paid
in accordance with Section 3.01(g) and retained by the indemnified
Holders. The relative fault shall be determined by reference to, among
other things, whether the action of the Company on the one hand or the
Holders on the other and the parties relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Holders agree that it would not be just and
equitable if contributions pursuant to this subsection (iv) were
determined by any method of allocation which does not
-48-
<PAGE>
take account of the equitable considerations referred to above in this
subsection (iv). The amounts paid or payable by an indemnified party as a
result of the losses, liabilities, claims, damages or expenses (or actions
in respect thereof) referred to above in this subsection (iv) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim, as the same are incurred. The Company's and the Holders'
obligations in this subsection (iv) to contribute are several and not
joint.
Neither Whitehall nor any of its directors, officers, agents or employees shall
be liable to the Company for any action taken or omitted to be taken by it or
any of them under or in connection with any Loan Document, except for gross
negligence or willful misconduct attributable to such Person.
9.05. AMENDMENTS, WAIVERS AND CONSENTS. Any provision of this
Agreement, the Debentures, the Security Documents, the Collateral Trust
Agreement or the Letter Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Company and the Required
Holders and SARs; PROVIDED, that no such amendment, waiver or modification
shall, unless signed by all the Holders and holders of then outstanding Stock
Appreciation Rights (i) subject any Holder to any additional obligation, (ii)
reduce the principal of or rate of interest on any Debenture or any fees
hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Debenture or any fees hereunder, (iv) change the percentage of
the aggregate unpaid principal amount of the Debentures, or the number of
Holders, and if applicable, holders of Stock Appreciation Rights, which shall be
required for the Holders, and if applicable, holders of Stock Appreciation
Rights or any of them to take any action under this Section 9.05 or any other
provision of this Agreement, (v) release all or substantially all of the
collateral for the Debentures or (vi) amend or waive the provisions of Section
6.12 or this Section 9.05.
9.06. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
-49-
<PAGE>
9.07. HEADINGS. The headings of the sections and subsections
hereof are provided for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
9.08. SURVIVAL OF INDEMNITIES. All indemnities set forth herein,
including, without limitation, in Section 9.04, shall survive the execution and
delivery of this Agreement, the issuance of the Debentures, and the payment of
principal of the Debentures and other obligations hereunder.
9.09. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. Nothing herein shall affect the right of
any Holder to commence legal proceedings or to otherwise proceed against the
Company in any other jurisdiction.
(b) The Company hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement, the Security
Documents, the Collateral Trust Agreement or the Letter Agreement brought in the
courts referred to in subsection (a) hereof and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such action
or proceeding brought in any such court has been brought in an inconvenient
forum.
(c) THE COMPANY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
9.10. SEVERABILITY. If any provision of this Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
9.11. ENTIRETY. This Agreement together with the other Loan
Documents represents the entire agreement of the parties hereto and thereto, and
supersedes all prior
-50-
<PAGE>
agreements and understandings, oral or written, if any, relating to the
Documents or the transactions contemplated herein; PROVIDED, HOWEVER, that
nothing shall affect the obligations of the Company to Goldman, Sachs & Co.,
Whitehall (and their respective affiliates) under the letter of intent, dated
November 17, 1994, among the Company, Goldman, Sachs & Co. and Whitehall.
9.12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by the Company herein shall survive issuance
and delivery of the Debentures hereunder.
-51-
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
ROCKEFELLER CENTER PROPERTIES, INC.
By:/s/ Richard M. Scarlata
-----------------------
Richard M. Scarlata
President and CEO
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP
By: W.H. Advisors L.P. V,
General Partner
By: WH Advisors, Inc. V,
General Partner
By:/s/ Daniel M. Neidich
---------------------
Daniel M. Neidich
President
<PAGE>
SCHEDULE 3.01(G)
FEES
An origination fee of 2% of the aggregate principal amount of the
Debentures issued and purchased on the Closing Date is payable to Whitehall, and
an advisory fee of 1% of the aggregate principal amount of the Debentures issued
and purchased on the Closing Date is payable to Goldman, Sachs & Co.
<PAGE>
SCHEDULE 4.09
INDEBTEDNESS
<TABLE>
<CAPTION>
A. OUTSTANDING INDEBTEDNESS
<S> <C>
Current Coupon Convertible Debentures due 2000 $213,170,000
Zero Coupon Convertible Debentures due 2000 326,863,314(1)
Letter of Credit supporting Company's Commercial Paper
Program 200,000,000
Accrued interest payable in connection with Current Coupon
Convertible Debentures due 2000 50,954,187(2)
Dividends payable December 30, 1994 5,739,106(3)
Interest rate swaps (See Part C(i)) 19,046,677(4)
-------------------
$815,773,284
-------------------
-------------------
<FN>
(1) Accreted value at 12/31/94
(2) Accrued balance at 11/30/94
(3) Dividend declared 12/12/94
(4) Net mark-to-market settlement price at 11/30/94 as reported by SWAP
counterparties
</TABLE>
<TABLE>
<CAPTION>
B. OUTSTANDING INDEBTEDNESS TO BE REPAID ON OR AFTER CLOSING DATE
<S> <C>
Letter of Credit supporting Company's Commercial Paper
Program $200,000,000
Interest rate swaps (See Part C(ii)) 13,005,995
-------------------
$213,005,995
-------------------
-------------------
</TABLE>
1 of 3
<PAGE>
SWAPS
30-Nov-94
<TABLE>
<CAPTION>
Net
Financial Notional Maturity RCPI RCPI Receipt/
C(i) Institution Principal Date Receives Pays (Payment)
- -----------------------------------------------------------------------------------------------------------------------------------
SWAP # Float Rate Fixed Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C>
AIG Finan Pr 5 (30,000,000) 14-Jan-98 5.37500% 1,612,500 9.84000% (2,952,000) (1,339,500)
Barclay's 6 (25,000,000) 12-Mar-98 5.31250% 1,328,125 9.33000% (2,332,500) (1,004,375)
Barclay's 8 (50,000,000) 20-Apr-98 5.81250% 2,906,250 9.68500% (4,842,500) (1,936,250)
------------ --------- -------------------------
(105,000,000) 5.56845% 5,846,875 9.64476% (10,127,000) (4,280,125)
------------ --------- -------------------------
------------ --------- -------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
(ii) SWAPS to be settled on or after closing date
Liability swaps SWAP # Float Rate Fixed Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Chase Manhat 7 (20,000,000) 02-Feb-98 5.31250% 1,062,500 9.14000% (1,828,000) (765,500)
Chase Manhat 1 (30,000,000) 15-Oct-99 4.87500% 1,462,500 9.98000% (2,994,000) (1,531,500)
Chase Manhat 2 (30,000,000) 15-Oct-99 4.87500% 1,462,500 9.98000% (2,994,000) (1,531,5000)
Chase Manhat 3 (20,000,000) 05-Oct-99 5.06250% 1,012,500 9.84000% (1,968,000) (955,500)
Chemical Ban 9 (50,000,000) 10-Jun-99 5.81250% 2,906,250 9.73600% (4,868,000) (1,961,750)
Bank of Amer 4 (30,000,000) 30-Jun-97 5.25000% 1,575,000 9.84190% (2,952,570) (1,377,570)
------------ --------- -------------------------
(180,000,000) 5.26736% 9,481,250 9.78032% (17,604,570) (8,123,320)
------------ --------- -------------------------
------------ --------- -------------------------
<CAPTION>
Mark-to
Financial Net Market
C(i) Institution Rate Floating Rate Re-sets 30-Nov-94
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
AIG Finan Pr 4.46500% 1/14, 7/14 (2,040,072)
Barclay's 4.01750% 3/12, 9/12 (1,231,010)
Barclay's 3.87250% 4/20, 10/20 (2,769,600)
-----------
4.07631% (6,040,682)
-----------
-----------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
(ii) SWAPS to be settled on or after closing date
<S> <C> <C> <C> <C>
Chase Manhat 3.82750% 2/2, 8/2 (954,295)
Chase Manhat 5.10500% 6/21, 12/21 (3,028,516)
Chase Manhat 5.10500% 6/22, 12/22 (3,025,333)
Chase Manhat 4.77750% 6/29, 12/29 (1,853,551)
Chemical Ban 3.92350% 4/20, 10/20 (3,581,000)
Bank of Amer 4.59190% 1/12, 7/12 (1,906,000)
-----------
4.51296% $14,348,695)
-----------
-----------
</TABLE>
2 of 3
<PAGE>
(ii) SWAPS to be settled on or after closing date (cont'd.)
(cont.)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Financial Notional RCPI Net Receipt/
Institution Principal Maturity Date Receives RCPI Pays (Payment)
- ---------------------------------------------------------------------------------------------------------------------------------
SWAP # Fixed Rate Float Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Chemical Ban 2 5,000,000 30-Nov-95 9.70000% 485,000 5.93750% (296,875) 188,125
Chemical Ban 4 5,000,000 29-Mar-96 9.23000% 461,500 5.25000% (262,500) 199,000
Chemical Ban 3 5,000,000 15-Sep-96 9.24500% 462,250 5.06250% (253,125) 209,125
Bank of Amer 8 5,000,000 15-Feb-96 9.43000% 471,500 5.81250% (290,625) 180,875
Bank of Amer 5 5,000,000 19-Sep-96 9.47000% 473,500 5.06250% (253,125) 220,375
Bank of Amer 7 5,000,000 30-Sep-97 9.56000% 478,000 5.26560% (263,280) 214,720
Bank of Amer 6 5,000,000 15-Apr-98 9.58700% 479,350 5.62500% (281,250) 198,100
---------- --------- -------------------------
35,000,000 9.46029% 3,311,100 5.43080% (1,900,780) 1,410,320
---------- --------- -------------------------
---------- --------- -------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------
Mark-to
Financial Market
Institution Net Rate Floating Rate Re-sets 30-Nov-94
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Chemical Ban 3.76250% 2/16, 5/16, 8/16, 11/16 113,700
Chemical Ban 3.98000% 3/29, 6/29, 9/29, 12/29 161,000
Chemical Ban 4.18250% 3/15, 6/15, 9/15, 12/15 135,000
Bank of Amer 3.61750% 2/15, 5/15, 8/15, 11/15 245,000
Bank of Amer 4.40750% 3/21, 6/21, 9/21, 12/21 191,000
Bank of Amer 4.29440% 3/30, 6/30, 9/30, 12/30 241,000
Bank of Amer 3.96200% 1/17, 4/17, 7/17, 10/17 256,000
-----------
4.02949% 1,342,700
-----------
SWAPS to be settled on or after closing date (13,005,995)
-----------
Total at 11/30/94 (19,046,677)
-----------
-----------
</TABLE>
3 of 3
<PAGE>
SCHEDULE 4.10
Litigation
Bear Stearns & Co. Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation have threatened to initiate litigation against the Company to
recover an investment banking fee in the amount of approximately $4 million
claimed to be due from the Company to such firms.
<PAGE>
SCHEDULE 4.11
Material Agreements and
Negotiations with RCP or RCPA
Material Agreements -- No exceptions
Negotiations with RCP -- The Company has requested
or RCPA the consent specified in
Section 3.01(k) and
discussions with respect to
such consent are ongoing.
<PAGE>
SCHEDULE 5.05
Insurance
The Borrower's Directors' and Officers' Insurance Policy contains an
endorsement (No. 7) reading as follows:
It is agreed that the Insurer shall not be liable to make any payment for
Loss in connection with any claim made against the Insureds brought by or
on behalf of Rockefeller Group, Inc., any of its subsidiaries (directly or
indirectly owned), its management and all entities controlled by or
affiliated with Rockefeller Group, Inc. and the management thereof.
<PAGE>
EXHIBIT A TO
DEBENTURE PURCHASE AGREEMENT
<PAGE>
EXHIBIT A
DEBENTURE
[Form of Face of Debenture.]
..............
No. ......... $ ........
Rockefeller Center Properties, Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Debenture Purchase Agreement hereinafter
referred to), for value received, hereby promises to pay to
......................................, or registered assigns, the principal sum
of ...................................... Dollars on December 31, 2007. This
Debenture shall bear interest on the unpaid principal amount hereof from the
date hereof or from the most recent Interest Payment Date to which interest has
been paid at the rate of 14% per annum until the principal hereof is paid. Such
interest shall be paid semi-annually on June 2 and December 2 in each year,
commencing June 2, 1995, except as otherwise provided in Section 2.03(b) of the
Debenture Purchase Agreement. Notwithstanding the foregoing, upon the
occurrence and during the continuance of an Event of Default, the rate of
interest borne by this Debenture shall be 18% per annum, compounded
semi-annually. The interest payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the May 15 or November 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any
A-1
<PAGE>
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts
PROVIDED, HOWEVER, that at the option of the Company payment of interest may
be made by check drawn on a member of the New York Clearing House Association
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Rockefeller Center Properties, Inc.
By...................................................
Attest:
.........................................
A-2
<PAGE>
[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued under a
Debenture Purchase Agreement, dated as of December 18, 1994 (herein called the
"Debenture Purchase Agreement"), between the Company and Whitehall Street Real
Estate Limited Partnership V, a Delaware limited partnership and reference is
hereby made to the Debenture Purchase Agreement for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company and the Holders of the Securities and of the terms upon which
the Securities are, and are to be, issued and delivered.
The Securities of this series are subject to redemption upon not less than
30 days' notice by mail, at any time on or after December 30, 2000, as a whole
or in part, at the election of the Company, at the following redemption prices
(expressed as percentages of the principal amount): If redeemed from December
30, 2000 through December 31, 2001, inclusive, 105%; from January 1, 2002
through December 31, 2002, inclusive 103%; from January 1, 2003 through December
31, 2003, inclusive, 101.5%; and thereafter at a price equal to 100%, together
in the case of any such redemption with accrued interest to the Redemption Date.
The Securities are also subject to mandatory redemption as provided in the
Debenture Purchase Agreement.
The Debenture Purchase Agreement permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities under
the Debenture Purchase Agreement at any time by the Company with the consent of
the Required Holders and SARs (as defined in the Debenture Purchase Agreement.
The Debenture Purchase Agreement also contains provisions permitting the Holders
of specified percentages in principal amount of the Securities and Stock
Appreciation Rights (as defined in the Debenture Purchase Agreement) on behalf
of the Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Debenture Purchase Agreement. Any such
consent or waiver by any Holder shall be conclusive and binding upon such Holder
and upon all future Holders of this Security (including holders of Stock
Appreciation Rights) and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
A-3
<PAGE>
No reference herein to the Debenture Purchase Agreement and no provision
of this Security or of the Debenture Purchase Agreement shall alter or impair
the obligation of the Company, which is absolute and unconditional, to pay the
principal of and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Debenture Purchase Agreement and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon one or more new Securities of this
series and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Debenture Purchase Agreement and subject to certain limitations
therein set forth, Securities are exchangeable for a like aggregate principal
amount of Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company and any agent of the Company may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company nor any such agent shall be
affected by notice to the contrary.
By accepting this Debenture the Holder agrees to be bound by the terms and
provisions of the Intercreditor Agreement as if such Holder were a party
thereto.
A-4
<PAGE>
All terms used in this Security which are defined in the Debenture
Purchase Agreement shall have the meanings assigned to them in the Debenture
Purchase Agreement.
A-5
<PAGE>
EXHIBIT B TO
DEBENTURE PURCHASE AGREEMENT
<PAGE>
EXHIBIT B
OFFICER'S CERTIFICATE
I, Richard A. Scarlata, the President of Rockefeller Center Properties,
Inc. (the "Company"), hereby certify that, to the best of my knowledge, with
respect to that certain Debenture Purchase Agreement between the Company and
Whitehall Street Real Estate Limited Partnership V, dated as of December __,
1994, as of the date hereof no Default or Event of Default has occurred and is
continuing.
This the __th day of _________, 19__.
_________________________
Richard A. Scarlata
B-1
<PAGE>
EXHIBIT C TO
DEBENTURE PURCHASE AGREEMENT
<PAGE>
Exhibit C
Form of Assignment of Mortgages
See Exhibit A to the Collateral Trust Agreement
(filed as Exhibit 4.10 to this 8-K).
<PAGE>
EXHIBIT D TO
DEBENTURE PURCHASE AGREEMENT
<PAGE>
Exhibit D
Form of Collateral Trust Agreement
See Exhibit 4.10 to this Form 8-K
<PAGE>
EXHIBIT E TO
DEBENTURE PURCHASE AGREEMENT
<PAGE>
Exhibit E
Form of Letter Agreement
See Exhibit E to Collateral Trust Agreement
(filed as Exhibit 4.10 to this Form 8-K)
<PAGE>
EXHIBIT F TO
DEBENTURE PURCHASE AGREEMENT
<PAGE>
Exhibit F
Form of Registration Rights Agreement
See Exhibit 4.11 to this Form 8-K
<PAGE>
EXHIBIT 4.10
CONFORMED COPY
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
COLLATERAL
TRUST AGREEMENT
BY AND AMONG
ROCKEFELLER CENTER PROPERTIES, INC.
and
BANKERS TRUST COMPANY
and
GARY R. VAUGHAN,
Trustees
______________
DATED AS OF December 29, 1994
<PAGE>
TABLE OF CONTENTS
PAGE
----
PARTIES................................................................... 1
RECITALS.................................................................. 1
DECLARATION OF TRUST...................................................... 1
SECTION 1 DEFINITIONS; DELIVERY OF COLLATERAL........................... 3
Section 1.1. Definitions and Other Matters......................... 3
Section 1.2. Delivery of Collateral................................ 8
SECTION 2 ACTIONABLE DEFAULTS; REMEDIES................................. 9
Section 2.1. Actionable Default.................................... 9
Section 2.2. Remedies.............................................. 9
Section 2.3. Right to Initiate Judicial Proceedings, Etc........... 11
Section 2.4. Appointment of a Receiver............................. 11
Section 2.5. Exercise of Powers.................................... 11
Section 2.6. Control by Lenders.................................... 12
Section 2.7. Remedies Not Exclusive................................ 12
Section 2.8. Waiver of Certain Rights.............................. 13
Section 2.9. Borrower's and Trustee's Rights as to Collateral; Limitation
on Trustee's Duties in Respect of Collateral........ 13
Section 2.10. Limitation by Law.................................... 14
Section 2.11. Absolute Rights of Holders........................... 14
Section 2.12. Equal and Ratable Security........................... 14
SECTION 3 COLLATERAL ACCOUNT; APPLICATION OF MONEYS..................... 14
Section 3.1. The Collateral Account................................ 14
Section 3.2. Control of Collateral Account......................... 15
Section 3.3. Investment of Funds Deposited in Collateral Account... 15
Section 3.4. Application of Moneys................................. 16
Section 3.5. Application of Moneys Distributable to Holders of
Public Debt......................................... 17
SECTION 4 AGREEMENTS WITH TRUSTEE....................................... 17
Section 4.1. Delivery of Debt Instruments.......................... 17
Section 4.2. Information as to Holders............................. 18
Section 4.3. Compensation and Expenses............................. 18
Section 4.4. Stamp and Other Similar Taxes......................... 18
Section 4.5. Filing Fees, Excise Taxes, Etc........................ 18
Section 4.6. Indemnification....................................... 18
Section 4.7. Further Assurances.................................... 19
<PAGE>
SECTION 5 THE TRUSTEE................................................... 19
Section 5.1. Acceptance of Trust................................... 19
Section 5.2. Exculpatory Provisions................................ 19
Section 5.3. Delegation of Duties.................................. 20
Section 5.4. Reliance by Trustee................................... 20
Section 5.5. Limitations on Duties of Trustee...................... 21
Section 5.6. Moneys to Be Held in Trust............................ 22
Section 5.7. Resignation and Removal of the Trustee................ 22
Section 5.8. Status of Successors to the Corporate Trustee......... 23
Section 5.9. Merger of the Corporate Trustee....................... 23
Section 5.10. Additional Co-Trustees; Separate Trustees............. 24
SECTION 6 RELEASE OF COLLATERAL......................................... 25
Section 6.1. Condition to Release.................................. 25
Section 6.2. Procedure for Release................................. 26
Section 6.3. Effective Time of Release............................. 26
Section 6.4. Release of Certain Collateral......................... 27
SECTION 7 MISCELLANEOUS................................................. 27
Section 7.1. Amendments, Supplements and Waivers................... 27
Section 7.2. Notices............................................... 29
Section 7.3. Headings.............................................. 29
Section 7.4. Severability.......................................... 29
Section 7.5. Treatment of Payee or Indorsee by Trustee; Acknowledgment of
Intercreditor Agreement............................. 29
Section 7.6. Dealings with the Borrower............................ 30
Section 7.7. Claims Against the Trustee............................ 30
Section 7.8. Binding Effect........................................ 30
Section 7.9. Conflict with Other Agreements........................ 31
Section 7.10. Powers of Individual Trustee.......................... 31
Section 7.11. Streit Act............................................ 31
Section 7.12. Governing Law......................................... 31
Section 7.13. Counterparts.......................................... 31
SIGNATURES................................................................ 32
ACKNOWLEDGMENTS
<PAGE>
COLLATERAL TRUST AGREEMENT
COLLATERAL TRUST AGREEMENT ("Agreement") dated as of December 29,
1994 by and among ROCKEFELLER CENTER PROPERTIES, INC., a Delaware corporation
(the "Borrower"), Bankers Trust Company, New York banking corporation (the
"Corporate Trustee"), and Gary R. Vaughan (the "Individual Trustee") (the
Corporate Trustee and the Individual Trustee being herein referred to
collectively as the "Trustee"), trustees for the Holders of the Secured Debt
referred to below.
WITNESSETH:
WHEREAS, the Borrower and the New Private Lenders are entering into
the New Agreements;
WHEREAS, to induce the New Private Lenders to enter into the New
Agreements, the Borrower has agreed to secure, subject to the terms and
conditions of this Agreement and the Security Documents, the payment of the
Secured Debt; and
WHEREAS, the effectiveness of the New Agreements is conditioned upon
this Agreement and the related Security Documents having been duly executed and
delivered;
DECLARATION OF TRUST:
NOW, THEREFORE, to secure the payment, observance and performance of
the Secured Debt and in consideration of the premises and the mutual agreements
set forth herein, the Borrower hereby assigns and pledges to the Trustee for its
benefit and the equal and ratable benefit of the Secured Parties, and hereby
grants to the Trustee for its benefit and the equal and ratable benefit of the
Secured Parties a security interest in, the following:
(a) all of the Borrower's right, title and interest in and to that
certain Mortgage Note, dated as of September 19, 1985, in the principal
amount of $1,255,160,004.00 made by RCP Associates and Rockefeller Center
Properties (collectively, the "Mortgagor") to the Borrower, as amended by
that certain Consent and Agreement (the "Consent Agreement"), dated as of
December 1, 1988, between the Borrower and the Mortgagor (as the same may
hereafter be amended, supplemented or modified, the "Mortgage Note");
(b) all of the Borrower's right, title and interest in and to that
certain Consolidated Note, dated as of September 19, 1985, in the
principal amount of $44,839,996.00 made by the Mortgagor to the Borrower,
as amended by the Consent Agreement (as the same may hereafter be amended,
supplemented or modified, the "Consolidated Note", and, together with the
Mortgage Note, the "Notes");
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(c) all of the Borrower's right, title and interest in and to
those certain mortgages listed in Schedule I hereto which secure the
Notes, each of which has been recorded in the Office of the City Register
of the County of New York and encumbers (i) the land described therein,
(ii) the appurtenances, easements and other rights pertaining to such land
and (iii) the buildings, improvements and fixtures now or hereafter
located or constructed thereon (collectively, as the same may hereafter be
amended, supplemented or modified, the "Mortgages");
(d) all of the Borrower's right, title and interest, in and to all
amounts payable to the Borrower as a result of any drawing under the
letters of credit described in Schedule II hereto or any additional or
substitute letters of credit naming the Borrower as beneficiary provided
to the Borrower pursuant to the Loan Agreement dated as of September 19,
1985, as amended (the "Loan Agreement"), between the Mortgagor and the
Borrower (each such letter of credit being a "Letter of Credit");
(e) all of the Borrower's right, title and interest in and to (x)
the Escrow Account (as defined in the Loan Agreement), if any, and (y) the
Collateral Account, all funds held therein and all certificates and
instruments, if any, from time to time representing or evidencing the
Escrow Account or the Collateral Account, as the case may be (the "Account
Collateral");
(f) all of the Borrower's right, title and interest in and to that
certain Amended and Restated Purchase Option, dated as of December 1,
1988, as amended, among RCP Associates, Rockefeller Center Properties and
the Borrower (the "Assigned Agreement"), provided that this clause (f)
shall have no effect unless and until all necessary consents have been
obtained, which the Borrower shall use its best efforts to obtain;
(g) all of the Borrower's right, title and interest in and to (x)
the title insurance policy set forth in Schedule III hereto and (y) any
amounts paid to the Borrower under the title insurance policy described in
the Letter Agreement (the "Title Insurance"); and
(h) all Proceeds of any and all of the foregoing.
TO HAVE AND TO HOLD the foregoing Collateral, the Security Documents
and the Proceeds of any and all thereof (the right, title and interest of the
Trustee in the Security Documents and the Collateral and such Proceeds being
hereinafter referred to as the "Trust Estate") unto the Trustee and its
successors in trust under this Agreement and its assigns and the assigns of its
successors in trust forever.
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3
IN TRUST NEVERTHELESS, under and subject to the terms and conditions
set forth herein and in the Security Documents, and for the benefit of the
Secured Parties and for the enforcement of the payment of all Secured Debt, and
for the performance of and compliance with the covenants and conditions of this
Agreement, the New Agreements, the Public Indenture and each of the Security
Documents.
PROVIDED, HOWEVER, that these presents are upon the condition that
if the Borrower, or its successors or assigns, shall satisfy all of the
conditions set forth in Section 6 of this Agreement with respect to all or any
part of the Collateral, as the case may be, then (if with respect to all of the
Collateral) this Agreement, and the estates and rights assigned in this
Agreement and in the Security Documents, shall cease and determine or (if with
respect to part of the Collateral) this Agreement, and the estates and rights
assigned in this Agreement and in the Security Documents, shall cease and
determine with respect to such part of the Collateral; otherwise they shall
remain and be in full force and effect.
IT IS HEREBY FURTHER COVENANTED AND DECLARED that the Trust Estate
is to be held and applied by the Trustee, subject to the further covenants,
conditions and trust hereinafter set forth.
SECTION 1
DEFINITIONS; DELIVERY OF COLLATERAL
Section 1.1. DEFINITIONS AND OTHER MATTERS. (a) As used in this
Agreement, including the introductory provisions hereof, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"ACTIONABLE DEFAULT" means (i) the nonpayment at maturity of any
New Lender Debt or an acceleration of the maturity of any New Lender Debt;
or (ii) the nonpayment at maturity of the Public Debt or the declaration
prior to its stated maturity that the Public Debt is due and payable
pursuant to Section 502 of the Public Indenture.
"AFFILIATE" means "AFFILIATE" as defined in the New Agreements.
"ASSIGNMENT OF MORTGAGE" means the Assignment of Mortgage dated
December 29, 1994 from the Borrower to the Trustee in substantially the
form of Exhibit A hereto.
"BANKRUPTCY CODE" means the federal Bankruptcy Code, as amended
from time to time.
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"BUSINESS DAY" means any day other than a Saturday, a Sunday, a
legal holiday in New York, New York or a day on which banking institutions
in New York, New York are authorized by law or other governmental action
to close.
"COLLATERAL" means all property of the Borrower in which liens or
security interests have been, or have purportedly been, granted to the
Trustee from time to time under this Agreement and the Security Documents.
"COLLATERAL ACCOUNT" means the "Collateral Account" as defined in
Section 3.1 of this Agreement.
"DEBT INSTRUMENTs" means the New Agreements, the Public Indenture
and the notes or other instruments or securities issued pursuant thereto.
"DISCHARGE NOTICE" means a written notice, signed by a Responsible
Officer of the Borrower, which requests a discharge of the Security
Documents in accordance with the provisions of Section 6.2 of this
Agreement and which certifies to the Trustee that
(i) the event enumerated in Section 6.1(a)(ii)(A) of this
Agreement has occurred, and
(ii) the Borrower would not be in default under or otherwise
in breach of any provision or covenant contained in the New
Agreements or the Public Indenture after, or as a result of, the
release of the Collateral.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"GSMC AGREEMENT" means the Loan Agreement dated as of December 18,
1994 among the Borrower, the lenders parties thereto and Goldman Sachs
Mortgage Company, as Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof.
"HOLDER" means, as of any date, any holder of Secured Debt on such
date, including, without limitation, the New Lenders, any New Trustee and
the Public Trustee.
"LETTER AGREEMENT" means the letter agreement dated the date
hereof regarding the assignment by the Borrower of its title insurance
benefits to the Trustee, in substantially the form of Exhibit E hereto.
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5
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
perfecting a security interest under the Uniform Commercial Code as
adopted and in effect in the relevant jurisdiction, or other similar
recording or notice statute, and any lease in the nature thereof).
"MAJORITY HOLDERS" means, as of any date, Holders holding more
than 50% of the aggregate unpaid principal amount of the Secured Debt then
outstanding under the New Agreements and the Public Indenture.
"MOODY'S" means Moody's Investor Service Inc.
"NEW AGREEMENTs" means the New Indentures, if any, the GSMC
Agreement and the Whitehall Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
the terms thereof.
"NEW INDENTURE" means any indenture executed by the Borrower in
connection with the refinancing of any New Private Debt, as amended,
modified and supplemented from time to time.
"NEW INDENTURE DEBT" means, as of any date, the amount of
indebtedness of the Borrower outstanding on such date under any New
Indenture.
"NEW INDENTURE LENDER" means, as of any date, a holder of New
Indenture Debt on such date.
"NEW LENDER DEBT" means, as of any date, the then outstanding and
unpaid New Indenture Debt and New Private Debt.
"NEW LENDERS" means as of any date, the New Indenture Lenders and
the New Private Lenders.
"NEW PRIVATE DEBT" means, as of any date, the then outstanding and
unpaid indebtedness on such date under the GSMC Agreement and the
Whitehall Agreement.
"NEW PRIVATE LENDER" means, as of any date, any holder of New
Private Debt on such date.
"NEW TRUSTEE" means, as of any date, any trustee under any New
Indenture.
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6
"NOTICE OF ACTIONABLE DEFAULT" means a written certification to
the Trustee and the Borrower (i) from a New Trustee in the case of New
Indenture Debt or a New Private Lender in the case of New Private Debt
certifying that the indebtedness due under the respective New Agreement
has not been paid in full at the stated maturity thereof or has been
declared to be due and payable prior to the stated maturity thereof in
accordance with the terms thereof; or (ii) from the Public Trustee
certifying that the indebtedness due under the Public Indenture has not
been paid in full at the stated maturity thereof or has been declared to
be due and payable prior to the stated maturity thereof.
"PAYMENT DEFAULT" means the nonpayment when due of any principal
of or premium or interest on Public Debt or New Lender Debt without regard
to any grace period for payment.
"PERSON" means any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise (whether or not
incorporated) or any governmental or political subdivision or any agency,
department or instrumentality thereof.
"PROCEEDS" shall have the meaning ascribed to it in Section
9-306(1) of the Uniform Commercial Code as in effect in the State of New
York and, whether or not constituting proceeds under such section, shall
include, but shall not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to the Borrower from
time to time with respect to any of the Collateral, (ii) any and all
payments (in any form whatsoever) made or due and payable to the Borrower
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral
by any Governmental Authority, and (iii) any and all other amounts from
time to time paid or payable to the Borrower upon the sale, exchange,
collection or other disposition of any part of the Collateral.
"PUBLIC DEBT" means, as of any date, the amount of indebtedness
outstanding on such date under the Public Indenture.
"PUBLIC INDENTURE" means the Indenture, dated as of September 15,
1985, as amended by the First Supplemental Indenture, dated as of December
15, 1985, between the Borrower and United States Trust Company of New
York, as successor trustee, providing for the issuance by the Borrower of
Current Coupon Convertible Debentures due 2000, Zero Coupon Convertible
Debentures due 2000 and Floating Rate Notes due 2007, if any, as amended,
modified and supplemented from time to time.
"PUBLIC LENDERS" means, as of any date, the holders of
indebtedness outstanding on such date under the Public Indenture.
"PUBLIC TRUSTEE" means, as of any date, the trustee under the
Public Indenture.
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7
"REQUIRED LENDERS" means as of any date, Holders holding not less
than 80% of the aggregate unpaid principal amount of the Secured Debt then
outstanding under the New Agreements and the Public Indenture.
"REQUISITE LENDERS" means, as of any date, Holders holding not
less than 50% of the aggregate principal amount of any of (i) the Public
Debt then outstanding, (ii) the indebtedness then outstanding under the
GSMC Agreement or, if there shall have been any refinancing of such
indebtedness through the issuance of securities under any New Indenture,
the indebtedness then outstanding under such New Indenture, or (iii) the
indebtedness then outstanding under the Whitehall Agreement or, if there
shall have been any refinancing of such indebtedness through the issuance
of securities under any New Indenture, the indebtedness then outstanding
under such New Indenture.
"RESPONSIBLE OFFICER" means, with respect to the Borrower, its
President and with respect to any other Person, the chief executive
officer, the chief financial officer or the chief accounting officer of
such Person.
"S & P" means Standard & Poor's Corporation.
"SECURED DEBT" means, as of any date, (i) the unpaid principal of,
and any accrued interest and premiums on, the indebtedness then
outstanding under the New Agreements and the Public Indenture, and (ii)
fees, expenses and charges (including, without limitation, indemnification
obligations) due or owing to any Secured Party arising under any Debt
Instrument, this Agreement or any Security Document.
"SECURED PARTY" means any New Lender, any New Trustee, the
Trustee, any Public Lender, the Public Trustee or any other obligee or
indemnified party under any New Agreement, New Indenture, Public Indenture
or Security Document.
"SECURITY DOCUMENTS" means this Agreement, the Assignment of
Mortgages, the Letter Agreement, any additional documents executed to
reflect the grant to the Corporate Trustee, the Individual Trustee or the
Trustee of a lien upon or security interest in any Collateral, and any
agreement or document referred to in Section 4.7, Section 7.1(a) or
Section 7.1(b) of this Agreement, as the same may be amended, supplemented
or otherwise modified in accordance with their respective terms.
"TRUSTEE'S FEES" means all fees, costs and expenses of the Trustee
of the types described in Sections 4.3, 4.4, 4.5 and 4.6 of this
Agreement.
"WHITEHALL AGREEMENT" means the Debenture Purchase Agreement dated
as of December 18, 1994 between the Borrower and Whitehall Street Real
Estate Limited
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8
Partnership V, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement and section
references are to this Agreement unless otherwise specified.
(c) In each case herein where "Holders" are entitled to vote on
any matter or to instruct the Trustee, the Public Trustee shall so vote or
instruct the Trustee on behalf of the Holders of Public Debt and any New Trustee
shall so vote or instruct the Trustee on behalf of the Holders of the respective
New Indenture Debt. Subject to Section 3.5 of this Agreement, in each case
herein where any payment or distribution is to be made or notice is to be given
to "Holders," such payments, distributions and notices (i) in respect of the
Public Debt, shall be made to the Public Trustee for the benefit of the Holders
thereof and (ii) in respect of the any New Indenture Debt, shall be made to the
respective New Trustee for the benefit of the Holders thereof.
(d) All terms defined in this Agreement in the singular shall
have comparable meanings when used in the plural, and VICE VERSA, unless
otherwise specified.
(e) Terms not otherwise defined herein which are defined in or
used in Article 9 of the Uniform Commercial Code as in effect in the State of
New York shall herein have the respective meanings given to them in Article 9.
(f) For purposes of this Agreement, the unpaid principal amount at
any time of the Zero Coupon Convertible Debentures due 2000 issued under the
Public Indenture shall equal the Acceleration Amount (as defined in the Public
Indenture) thereof at such time.
Section 1.2. DELIVERY OF COLLATERAL. (a) On the date hereof the
Borrower hereby delivers to the Trustee for the benefit of the Secured Parties
the following:
(i) the Notes duly endorsed in blank, together with a letter to
the obligors thereof to pay amounts due on the Notes to the Collateral
Account, in the form of Exhibit B hereto;
(ii) the letters of credit described in Schedule II hereto;
(iii) the Assignment of Mortgages;
(iv) the Letter Agreement; and
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9
(v) a letter in the form of Exhibit C hereto sent to each issuer
of an insurance policy set forth in Schedule III hereto acknowledged by
such issuer.
(b) The Borrower hereby agrees that (i) to the extent permitted by
the Letters of Credit, it will direct each issuer of a Letter of Credit to pay
the proceeds of any draw thereunder directly to the Collateral Account and (ii)
in case an Escrow Account is established, it will deliver to the Trustee a
letter in the form of Exhibit D hereto acknowledged by the institution
maintaining the Escrow Account.
SECTION 2
ACTIONABLE DEFAULTS; REMEDIES
Section 2.1. ACTIONABLE DEFAULT. (a) Upon receipt of a Notice
of Actionable Default, the Trustee shall, within five (5) days thereafter,
notify each New Trustee, each New Private Lender and the Public Trustee that an
Actionable Default exists. Upon receipt of any written directions pursuant to
Section 2.2(a), 2.6(a) or 2.6(b) the Trustee shall, within five (5) days
thereafter, send a copy thereof to each New Trustee, each New Private Lender and
the Public Trustee.
(b) The party or parties (or successors in interest thereto)
giving a Notice of Actionable Default shall be entitled (but not obligated) to
withdraw it by delivering written notice of withdrawal to the Trustee (i) before
the Trustee takes any action to exercise any remedy with respect to the
Collateral, or (ii) thereafter, if the Borrower certifies to the Trustee that it
believes that all actions the Trustee has taken to exercise any remedy or
remedies with respect to the Collateral can be reversed without undue
difficulty. The Trustee shall immediately notify the Borrower as to the receipt
and contents of any such notice of withdrawal and shall promptly notify each
Holder of the withdrawal of any Notice of Actionable Default.
Section 2.2. REMEDIES. (a) The Trustee may, and upon the
written direction of the Requisite Lenders to initiate the exercise of remedies
with respect to the Collateral shall, exercise the rights and remedies provided
in this Section 2 and the rights and remedies provided in any of the Security
Documents if and only if the Trustee shall have received a Notice of Actionable
Default, such Notice shall not have been withdrawn in accordance with the
provisions hereof and no direction inconsistent with such written direction has
been given to the Trustee by the Required Lenders. The Trustee may exercise in
respect of the Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party upon default under the Uniform Commercial Code in effect in the State of
New York at such time (the "N.Y. Uniform Commercial Code") (whether or not the
N.Y. Uniform Commercial Code applies to the affected Collateral) and also may
(i) require the Borrower to, and the Borrower hereby agrees that it will at its
expense and upon request of the
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10
Trustee forthwith, assemble all or part of the Collateral as directed by the
Trustee and make it available to the Trustee at a place to be designated by the
Trustee that is reasonably convenient to both parties and (ii) without notice
except as specified below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any of the Trustee's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other terms
as the Trustee may deem commercially reasonable. The Borrower agrees that, to
the extent notice of sale shall be required by law, at least ten days' notice to
the Borrower of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification. The
Trustee shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Trustee may adjourn any public or private
sale from time to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place to which it
was so adjourned.
(b) The Borrower hereby waives presentment, demand, protest or
any notice (to the extent permitted by applicable law and except as otherwise
expressly provided in this Agreement) of any kind in connection with this
Agreement, any Collateral or any Security Document.
(c) The Borrower hereby irrevocably constitutes and appoints the
Trustee and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full power and authority in the name
of the Borrower or in its own name, from time to time in the Trustee's
discretion, only upon the occurrence and during the continuance of any
Actionable Default, for the purpose of carrying out the terms of this Agreement
and any of the Security Documents, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes hereof and thereof and, without limiting
the generality of the foregoing, hereby gives the Trustee the power and right on
behalf of the Borrower, without notice to or assent by the Borrower, to the
extent permitted by applicable law, to do the following:
(i) to ask for, demand, sue for, collect, receive and give
acquittance for any and all moneys due or to become due with respect to
the Collateral,
(ii) to receive, take, endorse, assign and deliver any and all
checks, notes, drafts, acceptances, documents and other negotiable and
nonnegotiable instruments, documents and chattel paper taken or received
by the Trustee in connection herewith and therewith,
(iii) to commence, file, prosecute, defend, settle, compromise or
adjust any claim, suit, action or proceeding with respect to the
Collateral,
(iv) to sell, transfer, assign or otherwise deal in or with the
Collateral or any part thereof pursuant to the terms and conditions
hereunder, and
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11
(v) to do, at its option and at the expense and for the account
of the Borrower, at any time or from time to time, all acts and things
which the Trustee deems necessary to protect or preserve the security
interest granted hereby, the Collateral or the Trust Estate and to realize
upon the Collateral.
Section 2.3. RIGHT TO INITIATE JUDICIAL PROCEEDINGS, ETC. If and
only if the Trustee shall have received a Notice of Actionable Default and
during such time as such Notice of Actionable Default shall not have been
withdrawn in accordance with the provisions of Section 2.1(b) hereof, (i) the
Trustee shall have the right and power to institute and maintain such suits and
proceedings as it may deem appropriate to protect and enforce the rights vested
in it by this Agreement and each Security Document, and (ii) the Trustee may,
either after entry or without entry, proceed by suit or suits at law or in
equity to enforce such rights and to foreclose upon the Collateral and to sell
all or, from time to time, any of the Trust Estate under the judgment or decree
of a court of competent jurisdiction.
Section 2.4. APPOINTMENT OF A RECEIVER. If a receiver of the
Trust Estate shall be appointed in judicial proceedings, the Corporate Trustee
may be appointed as such receiver. Notwithstanding the appointment of a
receiver, the Trustee shall be entitled to retain possession and control of all
cash held by or deposited with it or its agents or co-trustees pursuant to any
provision of this Agreement or any Security Document.
Section 2.5. EXERCISE OF POWERS. All of the powers, remedies and
rights of the Trustee as set forth in this Agreement may be exercised by the
Trustee in respect of any Security Document as though set forth at length
therein and all the powers, remedies and rights of the Trustee as set forth in
any Security Document may be exercised from time to time as herein and therein
provided.
Section 2.6. CONTROL BY LENDERS. (a) Subject to Section 2.6(b)
of this Agreement, if the Trustee shall have received a Notice of Actionable
Default and during such time as such Notice of Actionable Default shall not have
been withdrawn in accordance with the provisions of Section 2.1(b) hereof, (i)
the Requisite Lenders shall have the right, by an instrument in writing executed
and delivered to the Trustee, to direct the Trustee to initiate the exercise of
remedies with respect to the Collateral and (ii) the Required Lenders shall have
the right, by an instrument in writing executed and delivered to the Trustee, to
direct the Trustee to refrain from exercising any right, remedy, trust or power
available to or conferred upon the Trustee hereunder.
(b) The Trustee shall not be obligated to follow any written
directions received pursuant to Section 2.2(a) or 2.6(a), (i) to the extent the
Trustee has received an opinion of independent counsel, to the effect that such
written directions are in conflict with any provisions of law or this Agreement
or (ii) in the case of directions from the Requisite Lenders, if the Trustee has
received written directions from the Required Lenders inconsistent with such
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12
directions of the Requisite Lenders. If the Trustee shall receive written
instructions from the Required Lenders that are inconsistent with the directions
received by the Trustee from the Requisite Lenders pursuant to Section 2.2(a) or
2.6(a) the Trustee shall perform in accordance with such directions of the
Required Lenders to the extent that all actions the Trustee has taken to
exercise any remedy with respect to the Collateral may be reversed or modified
as so directed without undue difficulty.
(c) Nothing in this Section 2.6 shall impair the right of the
Trustee in its discretion to take or omit to take any action deemed proper by
the Trustee and which action or omission is not inconsistent with any direction
of the Requisite Lenders, subject to Section 2.6(b), or Required Lenders;
PROVIDED, HOWEVER, subject to Section 5.5(a), the Trustee shall not be under
any obligation to take any action under Section 2 which is discretionary with
the Trustee under the provisions hereof or under any Security Document unless so
directed by the Requisite Lenders or Required Lenders as provided herein.
Section 2.7. REMEDIES NOT EXCLUSIVE. (a) No remedy conferred
upon or reserved to the Trustee herein or in the Security Documents is intended
to be exclusive of any other remedy or remedies, but every such remedy shall be
cumulative and shall be in addition to every other remedy conferred herein or in
any of the Security Documents or now or hereafter existing at law or in equity
or by statute.
(b) No delay or omission of the Trustee to exercise any right,
remedy or power accruing upon any Actionable Default shall impair any such
right, remedy or power or shall be construed to be a waiver thereof or an
acquiescence therein; and every right, power and remedy given by this Agreement
or any Security Document to the Trustee may be exercised from time to time and
as often as may be deemed expedient by the Trustee.
(c) In case the Trustee shall have proceeded to enforce any
right, remedy or power under this Agreement or any Security Document and the
proceeding for the enforcement thereof shall have been discontinued or abandoned
for any reason or shall have been determined adversely to the Trustee, then and
in every such case the Borrower, the Trustee and the Holders shall, subject to
any effect of or determination in such proceeding, severally and respectively be
restored to their former positions and rights hereunder and under such Security
Document with respect to the Trust Estate and in all other respects, and
thereafter all rights, remedies and powers of the Trustee shall continue as
though no such proceeding had been taken.
(d) All rights of action and rights to assert claims upon or under
this Agreement and the Security Documents may be enforced by the Trustee without
the possession of any Debt Instrument or the production thereof in any trial or
other proceeding relative thereto.
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Section 2.8. WAIVER OF CERTAIN RIGHTS. The Borrower, to the
extent it may lawfully do so, on behalf of itself and all who may claim through
or under it, including, without limitation, any and all subsequent creditors,
vendees, assignees and lienors, expressly waives and releases any, every and all
rights to demand or to have any marshalling of the Trust Estate upon any sale,
whether made under any power of sale granted hereunder or under the Security
Documents, or pursuant to judicial proceedings or upon any foreclosure or any
enforcement of this Agreement or the Security Documents and consents and agrees
that all the Trust Estate may at any such sale be offered and sold as an
entirety.
Section 2.9. BORROWER'S AND TRUSTEE'S RIGHTS AS TO COLLATERAL;
LIMITATION ON TRUSTEE'S DUTIES IN RESPECT OF COLLATERAL. So long as no Notice
of Actionable Default shall have been received by the Trustee (or if received,
shall have been withdrawn in accordance with the provisions hereof), the
Borrower shall be entitled to exercise all rights, powers, privileges and
remedies in respect of the Collateral, in each case free and clear of any liens
or encumbrance arising out of this Agreement, notwithstanding the grant of
security provided for in this Agreement, subject, however, to the provisions of
Section 3.1. After receipt by the Trustee of a Notice of Actionable Default and
prior to withdrawal of such Notice in accordance with the provisions hereof, the
Trustee shall be entitled to exercise all rights, powers, privileges and
remedies of the Borrower in respect of the Collateral, including, without
limitation, all rights, powers, privileges and remedies afforded to the Borrower
pursuant to the terms of the Mortgages and the Notes.
(b) Beyond its duties set forth in this Agreement as to the
custody thereof and the accounting to the Borrower and the Holders for moneys
received by it hereunder, the Trustee shall not have any duty to the Borrower or
the Holders as to any Collateral in its possession or control or in the
possession or control of any agent or nominee of it or any income thereon or as
to the preservation of rights against prior parties or any other rights
pertaining thereto. To the extent, however, that the Trustee or an agent or
nominee of the Trustee maintains possession or control of any of the Collateral
or the Security Documents, the Trustee shall, or shall instruct such agent or
nominee to, grant the Borrower the access to such Collateral or Security
Documents which the Borrower requires for the conduct of its business so long as
the Trustee shall not have received a Notice of Actionable Default.
Section 2.10. LIMITATION BY LAW. All the provisions of this
Section 2 are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Agreement invalid or unenforceable
in whole or in part.
Section 2.11. ABSOLUTE RIGHTS OF HOLDERS. Notwithstanding any
other provision of this Agreement or any provision of any Security Document, the
right of each Holder, which is absolute and unconditional, to receive payments
of the Secured Debt held by such Holder as therein expressed, to institute suit
for the enforcement of such payment on or after such due
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14
date, or to assert its position and views as a secured creditor in, and to
otherwise exercise any right (other than the right to enforce the security
interest in and lien on the Collateral, which shall in all circumstances be
exercisable only by the Trustee) it may have in connection with, a case under
the Bankruptcy Code in which the Borrower is a debtor, or the obligation of the
Borrower, which is also absolute and unconditional, to pay the Secured Debt
owing by the Borrower to each Holder at the time and place expressed therein
shall not be impaired or affected without the consent of such Holder.
Section 2.12. EQUAL AND RATABLE SECURITY. This Agreement and the
Security Documents are intended to secure the unpaid principal of and accrued
interest and premium, if any, on the Public Debt, together with all expenses,
charges or other amounts arising under the Public Indenture, equally and ratably
with all other indebtedness secured under this Agreement and the Security
Documents to the extent required by the Public Indenture, and shall be construed
and enforced to give effect to such intention.
SECTION 3
COLLATERAL ACCOUNT; APPLICATION OF MONEYS
Section 3.1. THE COLLATERAL ACCOUNT. On the date hereof there
shall be established and, at all times thereafter until the trusts created by
this Agreement shall have terminated, there shall be maintained with the
Corporate Trustee an account which shall be entitled the "RCPI Collateral
Account" (herein called the "Collateral Account"). The Collateral Account shall
be established and maintained by the Corporate Trustee at the office of its
corporate trust department. All moneys paid with respect to the Collateral
shall be deposited in the Collateral Account and thereafter shall be held and
applied by the Corporate Trustee in accordance with the terms of this Agreement.
Section 3.2. CONTROL OF COLLATERAL ACCOUNT. All right, title and
interest in and to the Collateral Account shall vest in the Corporate Trustee,
and funds on deposit in the Collateral Account shall constitute part of the
Trust Estate. The Collateral Account shall be subject to the exclusive dominion
and control of the Corporate Trustee in accordance with the terms hereof.
Section 3.3. INVESTMENT OF FUNDS DEPOSITED IN COLLATERAL ACCOUNT.
The Corporate Trustee shall invest and reinvest moneys on deposit in the
Collateral Account as directed by the Borrower, so long as the Trustee has not
received a Notice of Actionable Default, at any time in:
(i) securities issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(provided that
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15
the full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than six months from the
date of acquisition,
(ii) U.S. dollar denominated time deposits and certificates of
deposit of a bank (an "Approved Bank") that is either (x) any domestic
commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (y) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Moody's
is at least P-1 or the equivalent thereof, in each case with maturities of
not more than six months from the date of acquisition,
(iii) commercial paper and variable or fixed rate notes issued by
any Approved Bank (or by the parent company thereof) or any variable rate
notes issued or guaranteed by any Approved Bank rated at least A-1 (or the
equivalent thereof) by S&P or at least P-1 (or the equivalent thereof) by
Moody's and maturing within six months of the date of acquisition,
(iv) repurchase agreements with a bank or trust company or
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the
United States of America in which the Borrower shall have a perfected
first priority security interest (subject to no other Liens) and having,
on the date of purchase thereof, a fair market value of at least 100% of
the amount of the repurchase obligations, and
(v) publicly traded short-term notes, bonds and other obligations
having short-term unsecured debt ratings of at least A-1 (or the
equivalent thereof) by S&P or at least P-1 (or the equivalent thereof) by
Moody's;
PROVIDED, HOWEVER, that if no investment directions are received the Trustee
shall invest such moneys in such investments, to the extent such investments are
available, in the order set forth above; PROVIDED, FURTHER, that the maximum
amount of the funds held in the Collateral Account which may be invested in
obligations of the types described in clauses (ii), (iii), (iv) and (v) above of
any one issuer shall not exceed the lesser of five percent (5.0%) of such funds
or $10,000,000. All such investments and the interest and income received
thereon and therefrom and the net proceeds realized on the sale thereof shall be
held in the Collateral Account as part of the Trust Estate.
Section 3.4. APPLICATION OF MONEYS. (a) Prior to the occurrence
and after the curing of a Payment Default all moneys received by the Trustee for
deposit in the Collateral Account pursuant to Section 3.1 shall be paid to the
Borrower on the date received by the Trustee if practicable, and otherwise on
the next Business Day.
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16
(b) Subject to Section 3.1 and Section 3.5 hereof, after the
occurrence and during the continuance of a Payment Default or an Actionable
Default all moneys held by the Corporate Trustee in the Collateral Account
shall, to the extent available for distribution, be distributed (or, in the case
of moneys to be distributed to the Holders of Public Debt, deposited in a
separate account for the benefit of the Public Trustee pursuant to Section 3.5,
if applicable) by the Corporate Trustee as follows:
FIRST: To the Trustee in an amount equal to the unpaid Trustee's
Fees, and to any Secured Party which has theretofore advanced or paid any
such Trustee's Fees in an amount equal to the amount thereof so advanced
or paid by such Secured Party;
SECOND: Provided the Trustee has not received a Notice of
Actionable Default, to the Holders of Secured Debt with respect to which a
Payment Default has occurred and is continuing, in an amount equal to the
amount of such Payment Default and, in case such moneys shall be
insufficient to pay in full such amount, then to the payment of such
amount ratably (without priority of any one over any other) to each such
Holder in proportion to the amount thereof;
THIRD: To the Secured Parties in an amount equal to the costs and
expenses of and any other amounts due to the Secured Parties and their
representatives not otherwise referred to in this Section 3.4(b) which are
payable by the Borrower to the Secured Parties under the relevant Debt
Instrument, and, in case such moneys shall be insufficient to pay in full
such costs and expenses and other amounts, then to the payment thereof
ratably (without priority of any one over any other) to each Secured Party
in proportion to the unpaid amounts thereof;
FOURTH: To the Secured Parties in an amount equal to the unpaid
interest on the Secured Debt whether or not then due and payable, and, in
case such moneys shall be insufficient to pay in full such interest, then
to the payment thereof ratably (without priority of any one over any
other) to each Secured Party in proportion to the unpaid amounts thereof;
FIFTH: To the Secured Parties in an amount equal to the unpaid
principal of, and all premium on, the Secured Debt whether or not then due
and payable, and, in case such moneys shall be insufficient to pay in full
such principal and premium, then to the payment thereof ratably (without
priority of any one over any other) to each Secured Party in proportion to
the unpaid amounts thereof; and
SIXTH: Any surplus then remaining shall be paid to the Borrower or
its successors or assigns, or to whomever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
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17
(c) The term "unpaid" as used in such clause FIRST, FOURTH and
FIFTH of subsection (b) shall mean all amounts of outstanding Trustee's Fees and
Secured Debt as to which prior distributions (whether actually distributed or
set aside pursuant to Section 3.5) have not been made, or if made, have
subsequently been recovered from the recipient thereof.
Section 3.5. APPLICATION OF MONEYS DISTRIBUTABLE TO HOLDERS OF
PUBLIC DEBT. If at any time any moneys collected or received by the Trustee
pursuant to this Agreement or any of the Security Documents are distributable
pursuant to Section 3.4(b) of this Agreement to the Public Trustee, and if the
Public Trustee shall notify the Trustee that no provision is made under the
Public Indenture (i) for the application by the Public Trustee of such amounts
so distributable (whether by virtue of the Secured Debt issued under the Public
Indenture not having become due and payable or otherwise), or (ii) for the
receipt and the holding by the Public Trustee of such amounts pending the
application thereof, then the Corporate Trustee shall invest such amounts in
obligations of the kinds referred to in Section 3.3(i) of this Agreement having
maturities of ninety (90) days or less, and shall hold all such amounts so
distributable, and all such investments and the proceeds thereof, in trust
solely for the Public Trustee (in its capacity as trustee) and for no other
purpose until such time as the Public Trustee shall request the delivery thereof
by the Trustee to the Public Trustee for application by it pursuant to the
Public Indenture.
SECTION 4
AGREEMENTS WITH TRUSTEE
Section 4.1. DELIVERY OF DEBT INSTRUMENTS. On the date hereof,
the Borrower will deliver to the Trustee true and complete copies of the New
Agreements and the Public Indenture. The Borrower agrees that, promptly upon
the execution thereof, the Borrower will deliver to the Trustee a true and
complete copy of any and all amendments, modifications or supplements to any New
Agreement or the Public Indenture entered into by the Borrower subsequent to the
date hereof.
Section 4.2. INFORMATION AS TO HOLDERS. The Borrower agrees that
it shall deliver to the Trustee by December 1 in each year and from time to time
within 10 days of a request by the Trustee, a list setting forth (i) the
aggregate principal amount outstanding under the Public Indenture and any New
Indenture, (ii) the interest rates then in effect under the Public Indenture and
each New Indenture, (iii) with respect to any New Private Debt, to the extent
known to the Borrower, the names of the Holders thereof and the aggregate any
outstanding amount of any New Private Debt, and (iv) the names of the Public
Trustee and any New Trustee. The Borrower will furnish to the Trustee on the
date hereof a list setting forth the name and address of the Public Trustee, any
New Trustee and the New Private Lenders, and the Borrower agrees to furnish
promptly to the Trustee any changes or additions to such list.
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18
Section 4.3. COMPENSATION AND EXPENSES. The Borrower agrees to
pay to the Trustee from time to time upon demand (i) reasonable compensation for
its services hereunder and under the Security Documents and for administering
the Trust Estate, and (ii) all of the fees, costs and expenses of the Trustee
(including, without limitation, the reasonable fees and disbursements of its
counsel and such special counsel as the Trustee elects to retain) (A) arising in
connection with the preparation, execution, delivery, modification, or
termination of this Agreement and each Security Document or the enforcement of
any of the provisions hereof or thereof, or (B) incurred or required to be
advanced in connection with the administration of this Agreement, the Security
Documents and the Trust Estate, the sale or other disposition of Collateral
pursuant to any Security Document and the preservation, protection or defense of
any security interest granted pursuant to the Security Documents and the
Trustee's rights under this Agreement and in and to the Collateral and the Trust
Estate. As security for such payment, the Trustee shall have a lien prior to
the Secured Debt upon all Collateral and other property and funds held or
collected by the Trustee as part of the Trust Estate.
Section 4.4. STAMP AND OTHER SIMILAR TAXES. The Borrower agrees
to indemnify and hold harmless the Trustee and each Holder from any present or
future claim for liability for any stamp or other similar tax and any penalties
or interest with respect thereto, which may be assessed, levied or collected by
any jurisdiction in connection with this Agreement, any Security Document, the
Trust Estate, or any Collateral. The obligations of the Borrower under this
Section 4.4 shall survive the termination of the other provisions of this
Agreement.
Section 4.5. FILING FEES, EXCISE TAXES, ETC. The Borrower agrees
to pay or to reimburse the Trustee for any and all amounts in respect of all
search, filing, recording and registration fees, taxes, excise taxes and other
similar imposts which may be payable or determined to be payable in respect of
the execution, delivery, performance and enforcement of this Agreement and each
Security Document. The obligations of the Borrower under this Section 4.5 shall
survive the termination of the other provisions of this Agreement.
Section 4.6. INDEMNIFICATION. (a) The Borrower agrees to pay,
indemnify and hold the Trustee harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the Trust Estate and the Security Documents, unless arising from the
negligence or willful misconduct of such of the Trustee. As security for such
payment, the Trustee shall have a lien prior to the Secured Debt upon the Trust
Estate.
(b) In any suit, proceeding or action brought by the Trustee
under or with respect to the Trust Estate for any sum owing thereunder, or to
enforce any provisions thereof, or of any of the Security Documents or this
Agreement, the Borrower will save, indemnify and keep the Trustee and the
Holders harmless from and against all expense, loss or damage suffered by reason
of any defense, setoff, counterclaim, recoupment or reduction of liability
whatsoever
<PAGE>
19
of the obligee thereunder, arising out of a breach by the Borrower of any of its
obligations hereunder or thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor of such obligee or
its successors from the Borrower, and all such obligations of the Borrower shall
be and remain enforceable against and only against the Borrower and shall not be
enforceable against the Trustee or any Holder.
(c) The agreements in this Section 4.6 shall survive the
termination of the other provisions of this Agreement.
Section 4.7. FURTHER ASSURANCES. At any time and from time to
time, upon the written request of the Trustee, and at the expense of the
Borrower, the Borrower will promptly execute and deliver any and all such
further instruments and documents and take such further action as the Trustee
reasonably deems necessary or desirable in obtaining the full benefits of this
Agreement and the Security Documents and of the rights and powers herein and
therein granted, including, without limitation, the filing of any financing or
continuation statements with respect to the liens and security interests granted
thereby.
SECTION 5
THE TRUSTEE
Section 5.1. ACCEPTANCE OF TRUST. The Trustee, for itself and
its successors, hereby accepts the trusts created by this Agreement upon the
terms and conditions hereof, including those contained in this Section 5.
Section 5.2. EXCULPATORY PROVISIONS. (a) The Trustee shall not
be responsible in any manner whatsoever for the correctness of any recitals,
statements, representations or warranties contained herein or in the Security
Documents. The Trustee makes no representations as to the value or condition of
the Trust Estate or any part thereof, or as to the title of the Borrower thereto
or as to the security afforded by the Security Documents or this Agreement or as
to the validity, execution (except its own execution), enforceability, legality
or sufficiency of this Agreement, any Security Document or of the Secured Debt
secured hereby and thereby, and the Trustee shall incur no liability or
responsibility in respect of any such matters. The Trustee shall not be
responsible for insuring the Trust Estate or for the payment of taxes, charges,
assessments or liens upon the Trust Estate or otherwise as to the maintenance of
the Trust Estate, except that in the event the Trustee enters into possession of
a part or all of the Trust Estate, the Trustee shall preserve the part in its
possession.
(b) The Trustee shall not be required to ascertain or inquire as
to the performance by the Borrower of any of the covenants or agreements
contained herein, in any Security Document or in any Debt Instrument. Whenever
it is necessary or in the opinion of
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20
the Trustee advisable, for the Trustee to ascertain the amount of Secured Debt
then held by a Holder, the Trustee may rely on a certificate of such Holder as
to such amount.
(c) The Trustee shall not be personally liable for any acts or
omissions by it in accordance with this Agreement or any Security Document
except for those arising out of or in connection with the Trustee's negligence
or willful misconduct. Notwithstanding anything set forth herein to the
contrary, the Trustee shall have a duty of reasonable care with respect to any
Collateral delivered to the Trustee or its designated representatives that are
in the Trustee's or its designated representatives' possession and control.
Section 5.3. DELEGATION OF DUTIES. The Trustee may execute any
of the trusts or powers hereof and perform any duty hereunder either directly or
by or through agents, nominees or attorneys-in-fact, provided that the Trustee
shall obtain a written acknowledgment from such agents, nominees or
attorneys-in-fact that they shall be liable to the Holders for losses or damages
incurred by any such Holder as a result of such agent's, nominee's or
attorneys-in-fact negligence or willful misconduct as and to the extent the
Trustee would be liable for such losses or damages if the actions or omissions
of such agents, nominees or attorneys-in-fact constituting such negligence or
willful misconduct had been actions or omissions of the Trustee. The Trustee
shall not be responsible for the negligence or misconduct of any agents,
nominees or attorneys-in-fact selected by it without negligence or willful
misconduct.
Section 5.4. RELIANCE BY TRUSTEE. (a) Whenever in the
administration of the trusts of this Agreement the Trustee shall deem it
necessary or desirable that a matter be proved or established with respect to
the Borrower in connection with the taking, suffering or omitting of any action
hereunder by the Trustee, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may be deemed to be conclusively provided or
established by a certificate of a Responsible Officer of the Borrower delivered
to the Trustee and such certificate shall be full warranty to the Trustee for
any action taken, suffered or omitted in reliance thereon; subject, however, to
the provisions of Section 5.5.
(b) The Trustee may consult with counsel, accountants and other
experts, and any opinion of independent counsel reasonably satisfactory to the
Majority Holders, any such accountant, and any such other expert shall be full
and complete authorization and protection in respect of any action taken or
suffered by it hereunder in accordance therewith. The Trustee shall have the
right at any time to seek instructions concerning the administration of the
Trust Estate from any court of competent jurisdiction.
(c) The Trustee may rely, and shall be fully protected in acting,
upon any resolution, statement, certificate, instrument, opinion, report,
notice, request, consent, order, bond or other paper or document which it has no
reason to believe to be other than genuine and to have been signed or presented
by the proper party or parties or, in the case of cables, telecopies and
telexes, to have been sent by the proper party or parties, including, for the
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21
purpose of identifying the Majority Holders, the Requisite Lenders, the Required
Lenders, and the amounts of Secured Debt held by them, the information provided
by the Borrower to the Trustee pursuant to Section 4.2 of this Agreement. In
the absence of its negligence or willful misconduct, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement or any Security
Document.
(d) The Trustee shall not be under any obligation to exercise any
of the rights or powers vested in the Trustee by this Agreement or any Security
Document unless the Trustee shall have been provided adequate security and
indemnity against the costs, expenses and liabilities which may be incurred by
it in compliance with such request or direction, including such reasonable
advances as may be requested by the Trustee.
Section 5.5. LIMITATIONS ON DUTIES OF TRUSTEE. (a) Prior to
receipt of a Notice of an Actionable Default, the Trustee shall be obligated to
perform such duties and only such duties as are specifically set forth in this
Agreement or in any Security Document, and no implied covenants or obligations
shall be read into this Agreement or any Security Document against the Trustee.
The Trustee shall, upon receipt of a Notice of Actionable Default and during
such time as such Notice of Actionable Default shall not have been withdrawn in
accordance with the provisions of Section 2.1(b) hereof, (i) exercise the rights
and powers vested in it by this Agreement or by any Security Document, and the
Trustee shall not be liable with respect to any action taken or omitted by it in
accordance with the direction of the Requisite Lenders or Required Lenders
pursuant to Section 2.2(a) or 2.6 of this Agreement or (ii) if the Trustee shall
have initiated, or shall have received the written direction of the Requisite
Lenders to initiate, the exercise of any remedy with respect to the Collateral,
exercise such of the rights and powers vested in it by this Agreement or by any
Security Document, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs, notwithstanding any provision to the contrary contained herein
or in any Security Document. Notwithstanding the foregoing, the Trustee shall
follow written instructions of the Required Lenders, if any are received, as to
the time, method and place of conducting any proceeding for any right or remedy
available to the Trustee, or of exercising any trust or power conferred on the
Trustee, or for the appointment of a receiver, or for the taking of any other
action authorized by Section 2.
(b) Except as herein otherwise expressly provided, the Trustee
shall not be under any obligation to take an action which is discretionary with
the Trustee under the provisions hereof or under any Security Document. The
Trustee shall furnish to each New Private Lender, any New Trustee and the Public
Trustee promptly upon receipt thereof, a copy of each certificate or other paper
furnished to the Trustee by the Borrower under or in respect of this Agreement,
any Security Document or any of the Trust Estate, unless by the express terms of
any Security Document a copy of the same is required to be furnished by some
other
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22
Person directly to the New Private Lenders, any New Trustee and the Public
Trustee, or the Trustee shall have determined that the same has already been so
furnished.
Section 5.6. MONEYS TO BE HELD IN TRUST. All moneys received by
the Trustee under or pursuant to any provision of this Agreement or any Security
Document shall be held in trust for the purposes for which they were paid or are
held.
Section 5.7. RESIGNATION AND REMOVAL OF THE TRUSTEE. (a) The
Corporate Trustee or the Individual Trustee may at any time, by giving thirty
(30) days' prior written notice to the Borrower, the New Private Lenders, any
New Trustee and the Public Trustee, resign and be discharged of the
responsibilities hereby created, such resignation to become effective upon the
appointment of a successor trustee or trustees by the Borrower and the
acceptance of such appointment by such successor trustee or trustees. The
Corporate Trustee or the Individual Trustee may be removed at any time and a
successor trustee appointed by the affirmative vote of the Majority Holders;
PROVIDED THAT the Corporate Trustee and the Individual Trustee shall be
entitled to its or his fees and expenses to the date of removal. If no
successor trustee or trustees shall be appointed and approved within thirty (30)
days from the date of the giving of the aforesaid notice of resignation or
within thirty (30) days from the date of such removal, the Corporate Trustee or
the Individual Trustee, as applicable, shall, or any Holder may, apply to any
court of competent jurisdiction to appoint a successor trustee or trustees
(which may be an individual or individuals) to act until such time, if any, as a
successor trustee or trustees shall have been appointed as above provided. Any
successor trustee or trustees so appointed by such court shall immediately and
without further act be superseded by any successor trustee or trustees approved
by the Majority Holders as above provided.
(b) If at any time the Corporate Trustee or the Individual Trustee
shall resign, be removed or otherwise become incapable of acting, or if at any
time a vacancy shall occur in the office of the Corporate Trustee or the
Individual Trustee for any other cause, a successor trustee or trustees may be
appointed by the Borrower, and the powers, duties, authority and title of the
predecessor trustee or trustees terminated and cancelled without procuring the
resignation of such predecessor trustee or trustees, and without any other
formality (except as may be required by applicable law) than the appointment and
designation of a successor trustee or trustees in writing, duly acknowledged,
delivered to the predecessor trustee or trustees and the Borrower, and filed for
record in each public office, if any, in which this Agreement is required to be
filed.
(c) The appointment and designation referred to in Section 5.7(b)
of this Agreement shall, after any required filing, be full evidence of the
right and authority to make the same and of all the facts therein recited, and
this Agreement shall vest in such successor or trustee or trustees, without any
further act, deed or conveyance, all of the estate and title of its predecessor
or their predecessors, and upon such filing for record the successor trustee or
trustees shall become fully vested with all the estates, properties, rights,
powers, trusts, duties,
<PAGE>
23
authority and title of its predecessor or their predecessors; but such
predecessor or predecessors shall, nevertheless, on the written request of the
Majority Holders, the Borrower, or its or their successor trustee or trustees,
execute and deliver an instrument transferring to such successor or successors
all the estates, properties, rights, powers, trusts, duties, authority and title
of such predecessor or predecessors hereunder and shall deliver all securities
and moneys held by it or them to such successor trustee or trustees. Should any
deed, conveyance or other instrument in writing from the Borrower be required by
any successor trustee or trustees for more fully and certainly vesting in such
successor trustee or trustees the estates, properties, rights, powers, trusts,
duties, authority and title vested or intended to be vested in the predecessor
trustee or trustees, any and all such deeds, conveyances and other instruments
in writing shall, on request of such successor trustee or trustees, be so
executed, acknowledged and delivered.
(d) Any required filing for record of the instrument appointing a
successor trustee or trustees as hereinabove provided shall be at the expense of
the Borrower. The resignation of any trustee or trustees and the instrument or
instruments removing any trustee or trustees, together with all other
instruments, deeds and conveyances provided for in this Section 5 shall, if
required by law, be forthwith recorded, registered and filed by and at the
expense of the Borrower, wherever this Agreement is recorded, registered and
filed.
Section 5.8. STATUS OF SUCCESSORS TO THE CORPORATE TRUSTEE.
Every successor to the Corporate Trustee appointed pursuant to Section 5.7 of
this Agreement and every corporation resulting from a merger or consolidation
pursuant to Section 5.9 of this Agreement shall be a bank or trust company in
good standing and having power so to act, incorporated under the laws of the
United States or any State thereof or the District of Columbia, and having its
principal corporate trust office within the forty-eight (48) contiguous States,
and shall also have capital, surplus and undivided profits of not less than
$100,000,000.
Section 5.9. MERGER OF THE CORPORATE TRUSTEE. Any corporation
into which the Corporate Trustee shall be merged, or with which it shall be
consolidated, or any corporation resulting from any merger or consolidation to
which the Corporate Trustee shall be a party, shall be the Corporate Trustee
under this Agreement without the execution or filing of any paper or any further
act on the part of the parties hereto.
Section 5.10. ADDITIONAL CO-TRUSTEES; SEPARATE TRUSTEES. (a) If
at any time or times it shall be necessary or prudent in order to conform to any
law of any jurisdiction in which any of the Collateral shall be located, or the
Trustee shall be advised by counsel, satisfactory to it, that it is so necessary
or prudent in the interest of the Holders, or the Majority Holders shall in
writing so request, or the Trustee shall deem it desirable for its own
protection in the performance of its duties hereunder, the Trustee and the
Borrower shall execute and deliver all instruments and agreements necessary or
proper to constitute another bank or trust company, or one or more persons
approved by the Trustee and the Borrower either to act as co-trustee or
co-trustees of all or any of the Collateral, jointly with the Trustee originally
named herein or any
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24
successor or successors, or to act as separate trustee or trustees of any such
property. In the event the Borrower shall not have joined in the execution of
such instruments and agreements within ten (10) days after the receipt of a
written request from the Trustee so to do, or in case an Actionable Default
shall have occurred and be continuing, the Trustee may act under the foregoing
provisions of this Section 5.10 without the concurrence of the Borrower, and the
Borrower hereby irrevocably appoints the Trustee as its agent and attorney to
act for it under the foregoing provisions of this Section 5.10 in either of such
contingencies.
(b) Every separate trustee and every co-trustee, other than any
trustee which may be appointed as successor to Bankers Trust Company or Gary R.
Vaughan, shall, to the extent permitted by law, be appointed and act and be
such, subject to the following provisions and conditions, namely:
(i) all rights, powers, duties and obligations conferred upon the
Trustee in respect of the custody, control and management of moneys,
papers or securities shall be exercised solely by the Corporate Trustee,
or its successors as Corporate Trustee hereunder;
(ii) all rights, powers, duties and obligations conferred or
imposed upon the Trustee hereunder shall be conferred or imposed and
exercised or performed by the Trustee and such separate trustee or
separate trustees or co-trustee or co-trustees, jointly, as shall be
provided in the instrument appointing such separate trustee or separate
trustees or co-trustee or co-trustees, except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be
performed, the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
shall be exercised and performed by such separate trustee or separate
trustees or co-trustee or co-trustees;
(iii) no power given hereby to, or which it is provided hereby may
be exercised by, any such co-trustee or co-trustees or separate trustee or
separate trustees, shall be exercised hereunder by such co-trustee or
co-trustees or separate trustee or separate trustees, except jointly with,
or with the consent in writing of, the Trustee, anything herein contained
to the contrary notwithstanding;
(iv) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(v) the Borrower and the Trustee, at any time by an instrument in
writing, executed by them jointly, may accept the resignation of or remove
any such separate trustee or co-trustee, and in that case, by an
instrument in writing executed by the Borrower and the Trustee jointly,
may appoint a successor to such separate trustee or co-trustee, as the
case may be, anything herein contained to the contrary notwithstanding.
<PAGE>
25
In the event that the Borrower shall not have joined in the execution of
any such instrument within ten (10) days after the receipt of a written
request from the Trustee so to do, or in case an Actionable Default shall
have occurred and be continuing, the Trustee shall have the power to
accept the resignation of or remove any such separate trustee or
co-trustee and to appoint a successor without the concurrence of the
Borrower, the Borrower hereby irrevocably appointing the Trustee its agent
and attorney to act for it in such connection in either of such
contingencies. In the event that the Trustee shall have appointed a
separate trustee or separate trustees or co-trustee or co-trustees as
above provided, it may at any time, by an instrument in writing, accept
the resignation of or remove any such separate trustee or co-trustee, the
successor to any such separate trust or co-trustee to be appointed by the
Borrower and the Trustee, or by the Trustee alone, as hereinabove provided
in this Section 5.10.
SECTION 6
RELEASE OF COLLATERAL
Section 6.1. CONDITION TO RELEASE. (a) Subject to Section
6.1(b), all the Collateral shall be released on the earlier of:
(i) the date on which (A) all obligations owing by the Borrower
under the New Agreements shall have been satisfied and (B) accrued and
unpaid Trustee's Fees shall have been paid in full; or
(ii) the date on which (A) the Borrower shall have received written
instructions from the Holders of 100% of the outstanding principal amount
of New Lender Debt instructing the Borrower to direct the Trustee to
release the Collateral, and (B) accrued and unpaid Trustee's Fees shall
have been paid in full.
(b) On the dates referred to in clauses 6.1(a)(i) and 6.l(a)(ii)
above, the Collateral shall not be released unless and until the Borrower would
not be in default under or otherwise in breach of any provision or covenant
contained in the New Agreements or the Public Indenture after, or as a result
of, the release of the Collateral.
Section 6.2. PROCEDURE FOR RELEASE. (a) Upon the occurrence of
the event specified in Section 6.l(a)(i)(A), the Trustee shall forthwith send
written notice thereof to the Public Trustee, any New Trustee and the New
Private Lenders and shall release the Collateral in accordance with Section 6.3.
Upon the occurrence of the events specified in Section 6.1(a)(ii)(A), the
Borrower shall deliver a Discharge Notice to the Trustee (with a copy thereof to
the Public Trustee, any New Trustee and the New Private Lenders). If, within
thirty (30) days after receipt by the Trustee of a Discharge Notice certifying
that the event set forth in
<PAGE>
26
Section 6.1(a)(ii)(A) of this Agreement has occurred, the Trustee shall not have
received a certificate in writing from the Public Trustee, any New Trustee or
any New Private Lender stating that it believes in good faith, and stating the
basis therefor, that one of the following statements is true:
(i) the event specified in such Discharge Notice has not occurred,
or
(ii) the Borrower would be in default under or otherwise in breach
of any provision or covenant contained in the New Agreements or in the
Public Indenture after, or as a result of, the release of the Collateral,
then the Trustee shall, to the extent requested by the Borrower, take the
actions set forth in Section 6.3.
(b) If the Trustee receives a certificate to the effect set forth
in Section 6.2(a) within the period therein specified, the Collateral will not
be released, and the Trustee will not take any actions requested of it by the
Borrower until such certificate shall be withdrawn in writing by the entity
which shall have delivered the same to the Trustee, or the Trustee shall have
received a final order of a court of competent jurisdiction either directing it
to release the Collateral or determining that the conditions to the release of
the Collateral specified in Section 6.1 have been satisfied.
Section 6.3. EFFECTIVE TIME OF RELEASE. (a) The release of
Collateral shall be effective (i) upon the expiration of fifteen days following
the date of notice from the Trustee pursuant to the first sentence of Section
6.2(a), upon the occurrence of the event specified in Section 6.1(a)(i)(A) and
payment in full of accrued and unpaid Trustee's Fees or (ii) upon the expiration
of thirty (30) days following receipt by the Trustee of a Discharge Notice and
upon payment in full of accrued and unpaid Trustee's Fees, unless, prior to the
expiration of such thirty (30) day period, the Trustee shall have received a
certificate in writing from the Public Trustee, any New Trustee or any New
Private Lender to the effect set forth in Section 6.2(a), in which event the
release of Collateral shall not be effective until the date on which any of the
events set forth in Section 6.2(b) shall occur.
(b) Upon the effectiveness of the release of the Collateral, all
right, title and interest of the Trustee in, to and under the Trust Estate, the
Collateral and the Security Documents shall terminate and shall revert to the
Borrower or its successors and assigns, and the estate, right, title and
interest of the Trustee therein shall thereupon cease and determine, and in such
case, upon the written request of the Borrower or its successors or assigns, and
at the cost and expense of the Borrower or its successors or assigns, the
Trustee shall execute a satisfaction of the Security Documents and such
instruments as are necessary or desirable to terminate and remove of record any
documents constituting public notice of the Security Documents and the security
interests and assignments granted thereunder and shall assign and
<PAGE>
27
transfer, or cause to be assigned and transferred, and shall deliver or cause to
be delivered to the Borrower, all property, including all moneys, instruments
and securities of the Borrower then held by the Trustee. The cancellation and
satisfaction of the Security Documents shall be without prejudice to the rights
of the Trustee or any successor trustee to charge and be reimbursed for any
expenditures which it may thereafter incur in connection therewith.
Section 6.4. RELEASE OF CERTAIN COLLATERAL. To the extent that
the security interest in any Collateral granted pursuant to any of the Security
Documents is terminated or released in accordance with the terms thereof upon
the sale, transfer or other disposition of any part of the Collateral as
permitted by such Security Document, all right, title and interest of the
Trustee in, to and under such Collateral shall thereupon cease and determine.
Following such request, instructions or other termination or release, Trustee
shall, upon the written request of the Borrower or its successors or assigns and
at the cost and expense of the Borrower or its successors or assigns, execute
such instruments and take such other actions as are necessary or desirable to
terminate any such security interest and otherwise to effectuate the release of
the specified portions of the Collateral from the lien of such security
interest. Such termination and release shall be without prejudice to the rights
of the Trustee or any successor trustee to charge and be reimbursed for any
expenditures which it may thereafter incur in connection therewith.
SECTION 7
MISCELLANEOUS
Section 7.1. AMENDMENTS, SUPPLEMENTS AND WAIVERS. (a) Subject
to Section 7.1(b), with the prior written consent of the Holders of 100% of the
outstanding principal amount of New Lender Debt, the Trustee and the Borrower
may, from time to time, enter into written agreements supplemental hereto for
the purpose of adding to or waiving any provision of this Agreement or any of
the Security Documents or amending the definition of any capitalized term used
herein or therein, as such capitalized term is used herein or therein, or
changing in any manner the rights of the Trustee, the Holders or the Borrower
hereunder or thereunder; PROVIDED, HOWEVER, that no such supplemental
agreement shall:
(i) amend, modify or waive any provision of this Section 7.1
without the written consent of each Holder,
(ii) reduce the percentage specified in the definition of Majority
Holders or Requisite New Lenders without the written consent of all the
New Lenders,
(iii) result in a breach of a provision or covenant contained in the
Public Indenture providing for the securing of indebtedness thereunder
equally and ratably with other indebtedness or obligations of the Borrower
or any of its subsidiaries,
<PAGE>
28
(iv) amend, modify or waive any provision of Section 3.4 of this
Agreement or the definition of the term "Secured Debt" without the written
consent of any Secured Party whose rights would be adversely affected
thereby, or
(v) amend, modify or waive any provision of this Agreement or any
Security Document so as to adversely affect any of the Trustee's rights,
immunities or indemnities hereunder or thereunder or enlarge its duties
hereunder or thereunder, without the written consent of the Trustee.
Any such supplemental agreement shall be binding upon the Borrower, the Holders
and the Trustee and their respective successors and assigns. The Trustee shall
not enter into any such supplemental agreement unless it shall have received a
certificate signed by the chief financial officer of the Borrower to the effect
that such supplemental agreement will not result in a breach of any provision or
covenant contained in the Public Indenture.
(b) Without the consent of the Holders, the Borrower and the
Trustee, at any time and from time to time, may enter into additional Security
Documents or one or more agreements supplemental hereto or to any Security
Document, in form satisfactory to the Trustee,
(i) to add to the covenants of the Borrower for the benefit of the
Holders;
(ii) to mortgage, pledge or grant a security interest in favor of
the Trustee as additional security for the Secured Debt pursuant to any
Security Document; or
(iii) to cure any ambiguity, to correct or supplement any provision
herein or in any Security Document which may be defective or inconsistent
with any other provision herein or therein; PROVIDED, HOWEVER, that any
such action contemplated in this clause (iii) shall not adversely affect
the interests of any Holder in any material manner.
Section 7.2. NOTICES. Except as otherwise expressly provided
herein, all notices and other communications shall be given to the respective
parties at the address set forth below, or at such other address as such party
may specify by written notice to the other party hereto:
if to the Borrower:
Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
Attention: Secretary
Telecopy No.: (212) 698-1453
<PAGE>
29
if to the Corporate Trustee and the Individual Trustee:
Bankers Trust Company
Four Albany Street
New York, New York 10015
Attention: RCPI Collateral Trust
Telecopy No.: (714) 253-7577
if to the Public Trustee, any New Trustee or any
New Private Lender: to it at the address specified
from time to time in the list provided by the
Borrower to the Trustee.
All such notices, requests, demands and communications shall, to be effective
hereunder, be in writing or by a telecommunications device capable of creating a
written record, and shall be deemed to have been given or made when delivered by
hand or five (5) Business Days after its deposit in the mail, first class or air
postage prepaid, or in the case of notice by such a telecommunications device,
when properly transmitted or in the case of notice by publication, when such
notice appears in such publication; PROVIDED, HOWEVER, that any notice,
request, demand or other communication to the Trustee shall not be effective
until received.
Section 7.3. HEADINGS. Section, subsection and other headings
used in this Agreement are for convenience only and shall not affect the
construction of this Agreement.
Section 7.4. SEVERABILITY. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction, PROVIDED THAT this Agreement shall be construed so as to
give effect to the intention expressed in Section 2.12 hereof.
Section 7.5. TREATMENT OF PAYEE OR INDORSEE BY TRUSTEE;
ACKNOWLEDGMENT OF INTERCREDITOR AGREEMENT. (a) The Trustee may treat the
registered holder of any registered note, and the payee or indorsee of any note
or debenture which is not registered, as the absolute owner thereof for all
purposes hereunder and shall not be affected by any notice to the contrary,
whether such promissory note or debenture shall be past due or not.
<PAGE>
30
(b) Any Person which shall be designated as the duly authorized
representative of one or more Holders of Secured Debt to act as such in
connection with any matters pertaining to this Agreement or any Security
Document or the Collateral shall present to the Trustee such documents,
including, without limitation, opinions of counsel, as the Trustee may
reasonably require, in order to demonstrate to the Trustee the authority of such
Person to act as the representative of such Holders.
(c) The Trustee acknowledges receipt of the Intercreditor
Agreement dated as of December 18, 1994 between Goldman Sachs Mortgage Company
and Whitehall Street Real Estate Limited Partnership V and the rights of the
parties thereunder including, without limitation, the rights of subrogation
pursuant to Paragraph 6 thereof.
Section 7.6. DEALINGS WITH THE BORROWER. (a) Upon any
application or demand by the Borrower to the Trustee to take or permit any
action under any of the provisions of this Agreement or any Security Document,
the Borrower shall furnish to the Trustee a certificate signed by a Responsible
Officer of the Borrower stating that all conditions precedent, if any, provided
for in this Agreement or any Security Document relating to the proposed action
have been complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically required by
any provision of this Agreement or any Security Document, relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
(b) Any opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate of Responsible Officers of the Borrower
delivered to the Trustee.
Section 7.7. CLAIMS AGAINST THE TRUSTEE. Any claims or causes of
action which the New Lenders, the Public Trustee, any other Holders of Secured
Debt or the Borrower shall have against the Trustee shall survive the
termination of this Agreement and the release of the Collateral hereunder.
Section 7.8. BINDING EFFECT. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and shall inure to
the benefit of the Holders and their respective successors and assigns, and
nothing herein or in any Security Document is intended or shall be construed to
give any other Person any right, remedy or claim under, to or in respect of this
Agreement, any Security Document, the Collateral or the Trust Estate.
Section 7.9. CONFLICT WITH OTHER AGREEMENTS. The parties agree
that in the event of any conflict between the provisions of this Agreement and
the provisions of any of the Security Documents, the provisions of this
Agreement shall control.
Section 7.10. POWERS OF INDIVIDUAL TRUSTEE. The Individual
Trustee has been joined as a party hereunder for purposes of acting as mortgagee
or beneficiary, as the case may
<PAGE>
31
be, with respect to the mortgages assigned pursuant to the Security Agreement
and so that if, by any present or future law in any jurisdiction in which it may
be necessary to perform any act in the execution of the trust hereby created,
the Corporate Trustee may be deemed incompetent or unqualified to act as such
Corporate Trustee, then all the acts required to be performed in such
jurisdiction, in the execution of the trusts hereby created, shall and will be
performed by the Individual Trustee, acting alone. Therefore, notwithstanding
any other term or provision hereof to the contrary, the Corporate Trustee alone
shall have and shall exercise the rights and powers granted herein, EXCEPT,
HOWEVER, with respect to the mortgages assigned pursuant to the Security
Agreement and shall be solely charged with the performance of the duties herein
declared on the part of the Trustees, or either of them, to be had and exercised
or to be performed, PROVIDED, HOWEVER, that if the Corporate Trustee deems
it necessary for the Individual Trustee to act in a particular jurisdiction, the
Individual Trustee shall have and shall exercise the rights and powers granted
herein and shall be charged with the performance of the duties herein declared
on the part of the Trustees, or either of them, to be had and exercised or to be
performed, but only in such particular jurisdiction.
Section 7.11. STREIT ACT. In acting under this Agreement the
Trustee shall comply with Article 4-A of the New York Real Property Law
("NYRPL"), to the extent applicable. If any provision of this Agreement shall
conflict with any applicable provision of Article 4-A of the NYRPL, the
applicable provision of said Article 4-A shall control.
Section 7.12. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
Section 7.13. COUNTERPARTS. This Agreement may be executed in
separate counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same instrument.
<PAGE>
32
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
or caused this Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.
ROCKEFELLER CENTER PROPERTIES, INC.
By /s/ Richard M. Scarlata
----------------------------
President and Cheif Executive Officer
Attest:
By:/s/ Stephanie Leggett Young
---------------------------
Title: Secretary
[CORPORATE SEAL]
BANKERS TRUST COMPANY
By /s/ Tod A. Andrew
----------------------------
Title: Assistant Secretary
<PAGE>
33
Attest:
By /s/ Judy L. Gomez
------------------------
Title: Assistant Secretary
[CORPORATE SEAL]
GARY R. VAUGHAN
/s/ Gary R. Vaughan
------------------------------
<PAGE>
STATE OF NEW YORK }
COUNTY OF NEW YORK } ss:
On this day of December, 1994 before me personally came Richard M.
Scarlata and ________________to me personally known and known to me to be the
persons described in and who executed the foregoing instrument as President
and_______________ respectively, of ROCKEFELLER CENTER PROPERTIES, INC., a
Delaware corporation, who, being by me duly sworn, did depose and say that they
reside at and , respectively; that
they are President and ,
respectively, of ROCKEFELLER CENTER PROPERTIES, INC., one of the corporations
described in and which executed the foregoing instrument; that they know the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that said instrument was signed and sealed on behalf of said
corporation by order of its Board of Directors; that they signed their names
thereto by like order, and that they acknowledged said instrument to be the free
act and deed of said corporation.
-------------------------
Notary Public
County,
[SEAL]
My commission expires:
<PAGE>
STATE OF NEW YORK }
COUNTY OF NEW YORK } ss:
On this day of December, 1994 before me personally came ,
to me personally known and known to me to be the person described in and who
executed the foregoing instrument as _________________ of Bankers Trust Company,
a New York banking corporation, who, being by me duly sworn, did depose and say
that he resides at ;
that he is of
Bankers Trust Company, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that said instrument was
signed and sealed on behalf of said corporation pursuant to its by-laws; that he
signed his name thereto by like authority, and that he acknowledged said
instrument to be the free act and deed of said corporation.
---------------------------
Notary Public
County,
[SEAL]
My commission expires:
<PAGE>
STATE OF NEW YORK }
COUNTY OF NEW YORK } ss:
On this day of December, 1994 before me personally came
Gary R. Vaughan, to me personally known and known to me to be the person
described in and who executed the foregoing instrument not in his individual
capacity (except as otherwise expressly provided in this Agreement) but solely
as trustee, who, being by me duly sworn, did depose and say that he resides in
______________, and that he acknowledged said instrument to be his free act and
deed.
-------------------------
Notary Public
County,
[SEAL]
My commission expires:
<PAGE>
EXHIBIT A TO THE
COLLATERAL TRUST
AGREEMENT
<PAGE>
EXHIBIT A
_____________________________________________________________________________
ASSIGNMENT OF MORTGAGES
Dated as of December , 1994
by
ROCKEFELLER CENTER PROPERTIES, INC.
("Assignor")
to
Bankers Trust Company
________________________________________________
(the "Corporate Trustee")
and
Gary R. Vaughan
_________________________________________________
(the "Individual Trustee";
and together with the Corporate Trustee, "Assignee")
_____________________________________________________________________________
This Pledge and Assignment should be indexed against the following tax lots:
Parcel A-1: Block 1265 Lots 1001-1109 (30 Rockefeller Plaza and 1250 Avenue of
the Americas)
Parcel A-2: Block 1265, Lot 50 (610 Fifth Avenue and 620 Fifth Avenue)
Parcel A-3: Block 1265 Lot 40 (No street address)
Parcel A-4: Block 1265 Lot 8040 (No street address)
Parcel B: Block 1266 Lot 1 (1270 Avenue of the Americas,
50 Rockefeller Plaza and 630 Fifth Avenue)
Parcel C: Block 1264 Lot 5 (1230 Avenue of the Americas,
10 Rockefeller Plaza and 1 Rockefeller
Plaza)
Parcel D: Block 1265 Lot 71 (1256 Avenue of the Americas)
Parcel E-1: Block 1264 Part of Lot 30 (600 Fifth Avenue)
Parcel E-2: Block 1264 Part of Lot 30 (600 Fifth Avenue)
Parcel E-3: Block 1264 Part of Lot 30 (6000 Fifth Avenue)
<PAGE>
ASSIGNMENT OF MORTGAGES
THIS ASSIGNMENT OF MORTGAGES (this "ASSIGNMENT") made as of the
___ day of December , 1994, by ROCKEFELLER CENTER PROPERTIES, INC., a Delaware
corporation having an office at 1270 Avenue of the Americas, New York, New York
10020 ("ASSIGNOR"), to Bankers Trust Company, a New York banking corporation
having an office at Four Albany Street, New York, New York, 10015 (the
"CORPORATE TRUSTEE") and Gary R. Vaughan, an individual having an office
c/o Bankers Trust Company, at Four Albany Street, New York, New York 10015
(the "INDIVIDUAL TRUSTEE", and, together with the Corporate Trustee,
"ASSIGNEE") as trustees under that certain Collateral Trust Agreement, dated
as of the date hereof, among Assignor and Assignee (the "TRUST AGREEMENT").
NOW THEREFORE, in order to secure the payment of all Secured Debt
(as defined in the Trust Agreement) of Assignor, Assignor hereby assigns unto
Assignee all of the Assignor's right, title and interest in and to all of those
certain mortgages listed in ANNEX A hereto, each of which has been recorded in
the office of the City Register of the County of New York and covers the land
described in ANNEX B hereto and the appurtenances, easements and other rights
pertaining to such land and the buildings, improvements and fixtures now or
hereafter located or constructed thereon.
TO HAVE AND TO HOLD the same unto Assignee and its successors and
assigns from and after the date hereof forever, SUBJECT, HOWEVER, to all of the
terms, provisions and conditions of the Trust Agreement, including, but not
limited to, reassignment to Assignor or its designee pursuant to Section 6
thereof.
This Assignment shall be governed by the laws of the State of New
York.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the
date first set forth above.
ASSIGNOR
ROCKEFELLER CENTER PROPERTIES, INC.
By:
---------------------------------
Richard M. Scarlata
President
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of December, 1994, before personally came Richard
M. Scarlata, to me known, who, being by me duly sworn, did depose and say that
he has an office at 1270 Avenue of the Americas, 24th Floor, New York, New York;
that he is the president of Rockefeller Center Properties, Inc., the corporation
described in and which executed the foregoing instrument.
-----------------------------------
Notary Public
<PAGE>
ANNEX A
THE MORTGAGES
[Attached]
<PAGE>
MORTGAGES
1. Mortgages 1 and 2 as consolidated affect Block 1264 - Lot 5 and 30, Block
1265 - Lots 40, 8040, 50, 1001-1109, 71 and Block 1266 - Lot 1.
MORTGAGE made by Rockefeller Center Inc. -to- Emigrant Savings Bank dated
10/1/75, recorded 10/1/75 in Reel 352 Page 231 to secure the sum of
$50,000,000.00 and interest. (Mortgage tax paid: $625,000.00)
ASSIGNMENT OF MORTGAGE
MORTGAGE 1 was assigned by Emigrant Savings Bank -to- Rockefeller Center
Properties Inc. by assignment dated 9/18/85, recorded 9/19/85, in Reel 962
Page 1808.
2. MORTGAGE made by Rock-Sinclair Inc. -to- Chase Manhattan Bank, N.A. dated
5/15/63, recorded 5/16/63 in Liber 6169 Page 6 to secure the sum of
$9,000,000.00 and interest. (Mortgage tax paid: $45,000.00)
ASSIGNMENT OF MORTGAGE
MORTGAGE 2 was assigned by Chase Manhattan Bank, N.A. -to- Rockefeller
Center Properties, Inc. by assignment dated 9/19/85, recorded 9/19/85, in
Reel 962 Page 1802.
Mortgage Consolidation and Spreader Agreement made by RCP Associates,
Rockefeller Center Properties and Rockefeller Center Properties, Inc. dated
9/19/85 and recorded 12/19/85 in Reel 962 Page 1813. Consolidates
mortgages recorded in Reel 352 Page 231 and Liber 6169 Mp. 6 to form a
single mortgage lien of $44,839,996 and spread to cover Block 1265 Lot 1,
Block 1266 Lot 1, Block 1264 Lot 5 and 30, Block 1265 Lots 1 and 71.
Amended and Restated Consolidation and Security Agreement made by RCP
Associates, Rockefeller Center Properties, and Rockefeller Center
Properties Inc. dated 12/1/88 and recorded 12/21/88 in Reel 1510 Page 1049.
Amends and restates mortgages recorded in Reel 352 Page 231 and Liber 6169
Page 6, as consolidated.
Amendment to Consolidated Mortgage made by and between RCP Associates,
Rockefeller Center Properties and Rockefeller Center Properties, Inc. dated
4/6/93 and recorded 5/5/93 in Reel 1967 Page 2102.
Amends terms of Amended and Restated Consolidation and Security Agreement
recorded in Reel 1510 Page 1049 and spreads lien of mortgages 1 and 2 as
consolidated to cover "Pledged Development Rights".
Mortgage 1 and 2 as consolidated may be satisfied or assigned by:
Rockefeller Center Properties Inc.
3. MORTGAGE made by RCP Associates and Rockefeller Center Properties -to-
Rockefeller Center Properties Inc. dated 9/19/85 recorded 9/6/94 in Reel
2135 Page 1703 to secure the sum of $1,255,160,004.00 and interest.
(Mortgage tax paid: $34,516,900.00)
<PAGE>
Amended and Restated mortgage made by and between RCP Associates and
Rockefeller Center Properties with Rockefeller Center Properties, Inc.
dated 12/1/88 recorded 9/6/94 in Reel 2135 page 1759. Amends and restates
mortgage in Reel 2135 Page 1703 now due and owing in the principal amount
of $1,255,160,004.00.
Amendment to Amended and Restated mortgage made by and between RCP
Associates and Rockefeller Center Properties with Rockefeller Center
Properties, Inc. dated 4/6/93 recorded 9/6/94 in Reel 2135 Page 1868.
Amends restated and amended mortgage in Reel 2135 Page 1759. Spreads lien
to cover "Pledged Development Rights".
Amendment to Amended and Restated mortgage made by and between RCP
Associates and Rockefeller Center Properties with Rockefeller Center
Properties, Inc. dated 4/6/93 recorded 9/6/94 in Reel 2135 Page 1892.
Mortgage 3 may be satisfied or assigned by:
Rockefeller Center Properties Inc.
<PAGE>
ANNEX B
DESCRIPTION OF THE LAND
[Attached]
<PAGE>
PARCEL A-1 (B/K/A Block 1265 Lot 1, N/K/A Block 1265 Lots 1001-1109)
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at the intersection of the northerly side of 49th Street and the
easterly side of Avenue of the Americas;
running thence easterly along the northerly side of 49th Street 545 feet 0
inches to the westerly side of Rockefeller Plaza;
thence northerly along the westerly side of Rockefeller Plaza 200 feet 10 inches
to the southerly side of 50th Street;
thence westerly along the southerly side of 50th Street 478 feet 6-1/2 inches;
thence southerly parallel with the easterly side of Avenue of the Americas 25
feet 4-1/2 inches;
thence westerly parallel with 50th Street and partly through a party wall 66
feet 5-1/2 inches to the easterly side of Avenue of the Americas;
thence southerly along the easterly side of Avenue of the Americas 175 feet
5-1/2 inches to the northerly side of 49th Street the point or place of
BEGINNING.
PARCEL A-2 (Block 1265, Lot 50)
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York bounded and described
as follows:
BEGINNING at the intersection of the northerly side of 49th Street and the
westerly side of 5th Avenue;
running thence along the westerly side of 5th Avenue 200 feet 10 inches to the
intersection of the westerly side of 5th Avenue and the southerly side of 50th
Street;
<PAGE>
thence westerly along the southerly side of 50th Street 315 feet 0 inches to the
easterly side of Rockefeller Plaza;
thence southerly along the easterly side of Rockefeller Plaza 200 feet 10 inches
to the northerly side of 49th Street;
thence easterly along the northerly side of 49th Street 315 feet 0 inches to the
westerly side of 5th Avenue to the point or place of BEGINNING.
PARCEL A-3 (Block 1265 Lot 40)
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at a point (hereinafter, "POINT A") on the southerly side of West 50th
Street distant 545 feet easterly from the corner formed by the intersection of
the easterly side of Avenue of the Americas with the southerly side of 50th
Street;
thence southerly at right angles with West 50th Street 200 feet 10 inches to a
point at the northerly side of 49th Street (hereinafter, "POINT B");
thence easterly along the northerly side of 49th Street, 60 feet to a point
(hereinafter, "POINT C");
thence northerly at right angles with West 49th Street 200 feet 10 inches to the
southerly side of 50th Street;
thence westerly along the southerly side of 50th Street, 60 feet to the point or
place of BEGINNING.
Which lies above a plane located at an elevation at Point A of 65.87 feet, at
Point B of 63.47 feet and at Point C of 63.75 feet.
Elevations refer to the datum in use by the department of Highways, Borough of
Manhattan, which is 2.75 feet above the U.S. Coast and Geodetic Survey datum of
mean sea level at Sandy Hook.
<PAGE>
PARCEL A-4 (Block 1265 Lot 8040)
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, sounded and described
as follows:
BEGINNING at a point (hereinafter, "POINT A") on the southerly side of West 50th
Street distant 545 feet easterly from the corner formed by the intersection of
the easterly side of Avenue of the Americas with the southerly side of 50th
Street;
thence southerly at right angles with West 50th Street 200 feet 10 inches to
a point at the northerly side of 49th Street (hereinafter, "POINT B");
thence easterly along the northerly side of 49th Street, 60 feet to a point
(hereinafter, "POINT C");
thence northerly at right angles with West 49th Street 200 feet 10 inches to the
southerly side of 50th Street;
thence westerly along the southerly side of 50th Street, 60 feet to the point or
place of BEGINNING.
Which lies below a plane located at an elevation at Point A of 65.87 feet, at
Point B of 63.47 feet and at Point C of 63.75 feet.
Elevations refer to the datum in use by the department of Highways, Borough of
Manhattan, which is 2.75 feet above the U.S. Coast and Geodetic Survey datum of
mean sea level at Sandy Hook.
PARCEL B (Block 1266 Lot 1)
ALL that certain lot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, State and County of New York, bounded and described
as follows:
BEGINNING at the intersection of the northerly side of Fiftieth Street and the
westerly side of Fifth Avenue;
running thence northerly along the westerly side of Fifth Avenue 200 feet 10
inches to the intersection of the westerly side of Fifth Avenue and the
southerly side of Fifty-first Street;
<PAGE>
thence Westerly along the southerly side of Fifty-first Street 920 feet to the
intersection of the southerly side of Fifty-first Street and the easterly side
of Sixth Avenue;
thence Southerly along the easterly side of Sixth Avenue, 200 feet 10 inches to
the intersection of the easterly side of Sixth Avenue and the northerly side of
Fiftieth Street; and thence Easterly along the northerly side of Fiftieth
Street, 920 feet to the point or place of Beginning.
PARCEL C (Block 1264 Lot 5)
ALL that certain lot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, State and County of New York, bounded and described
as follows:
BEGINNING at a point on the north side of West 48th Street distant 200 feet
westerly from the corner formed by the intersection of the north side of West
48th Street with the west side of Fifth Avenue; running
thence Westerly along the north side of West 48th Street 720 feet to the corner
formed by the intersection of the north side of West 48th Street with the east
side of Avenue of the Americas, formerly named "Sixth Avenue"; running
thence Northerly along the east side of Avenue of the Americas, 200 feet 10
inches to the corner formed by the intersection of the south side of West 49th
Street with the east side of Avenue of the Americas; running
thence Easterly along the south side of West 49th Street 695 feet to a point
distant 225 feet westerly from the west side of Fifth Avenue;
thence Southerly parallel with Fifth Avenue and for part of the distance through
a party wall 100 feet 5 inches;
thence Easterly parallel with West 49th Street, 25 feet;
thence Southerly parallel with Fifth Avenue, 100 feet 5 inches to the north side
of West 48th Street at the place of Beginning.
<PAGE>
PARCEL D (Block 1265 Lot 51)
ALL that certain lot, piece or parcel of land situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the Southerly side of West
50th Street and Easterly side of Avenue of the Americas (formerly known as 6th
Ave.);
thence Southerly along the Easterly side of Avenue of the Americas 25 feet 4 1/2
inches;
thence Easterly parallel with the Southerly side of West 50th Street and part of
a distance through a party wall 66 feet 5 1/2 inches;
thence Northerly parallel with the Easterly side of Avenue of the Americas 25
feet 4 1/2 inches to the Southerly side of West 50th Street;
thence Westerly along the Southerly side of West 50th Street 66 feet 5 1/2
inches to point or place of Beginning.
PARCEL E-1
BEGINNING at a point on the southerly side of Forty-ninth Street, distant 161
feet 6 inches, westerly from the corner formed by the intersection of the
southerly line of Forty-ninth Street with the westerly line of Fifth Avenue; and
running thence southerly, 100 feet part of the way through the center of a party
wall; thence westerly and parallel with Forty-ninth Street 22 feet; thence
northerly and part of the way through the center of a party wall 100 feet to
said southerly side of Forty-ninth Street; and thence easterly along said
southerly side of Forty-ninth Street 22 feet to the point or place of
beginning.
PARCEL E-2
BEGINNING at a point on the southerly side of 49th Street distant 183 feet 6
inches westerly from the corner formed by the intersection of the westerly side
of Fifth Avenue with the southerly side of 49th Street and running thence
southerly parallel with Fifth Avenue and part of the way through the center of a
party wall 100 feet; thence westerly
<PAGE>
parallel with 49th Street 16 feet 6 inches; thence northerly parallel with Fifth
Avenue and part of the way through the center of a party wall. 100 feet to the
southerly side of 49th Street, and thence easterly along the southerly side of
49th Street 16 feet 6 inches to the point or place of beginning.
PARCEL E-3
BEGINNING at a point on the southerly side of 49th Street distant 200 feet
westerly from the corner formed by the intersection of the southerly side of
49th Street and the westerly side of Fifth Avenue; running thence southerly
parallel with Fifth Avenue and part of the distance through a party wall, 100
feet 5 inches to the center line of the block; thence westerly along said center
line of the block and parallel with 49th Street 25 feet; thence northerly again
parallel with Fifth Avenue and part of the distance through another party wall
100 feet 5 inches to the southerly side of 49th Street; and thence easterly
along the southerly side of 49th Street 25 feet to the point or place of
beginning.
<PAGE>
EXHIBIT B TO THE COLLATERAL
TRUST AGREEMENT
<PAGE>
EXHIBIT B
[Date]
RCP Associates
Rockefeller Center Properties
[Address]
Ladies and Gentlemen:
Please be advised that pursuant to the Collateral Trust Agreement
dated as of _______________________ between_________________________ (the
"Individual Trustee"), (the "Corporate Trustee", together with the
Individual Trustee, the "Trustee") and the undersigned, we have granted to the
Trustee a security interest in the Mortgage Note dated as of September 19, 1985
in the principal amount of $1,255,160,004 and the Consolidated Note dated as of
September 19, 1985 in the principal amount of $44,839,996, in each case made by
you to the undersigned. Unless otherwise directed by the undersigned and the
Corporate Trustee all payments by you on the Notes should be made to [Corporate
Trustee] at _________________________.
Very truly yours,
ROCKEFELLER CENTER PROPERTIES, INC.
By
--------------------------------------
<PAGE>
EXHIBIT C TO THE
COLLATERAL TRUST
AGREEMENT
<PAGE>
C-1
EXHIBIT C
Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
December , 1994
Lawyers Title Insurance Corporation
708 Third Avenue
New York, New York 10017
Ladies and Gentlemen:
Please be advised that as of the date hereof the undersigned has assigned
all of its right, title and interest in and under the following Mortgagee Title
Policies to the Trustee (as defined herein) pursuant and subject to that certain
Collateral Trust Agreement (the "TRUST AGREEMENT"), dated as of the date
hereof, among the undersigned, _________ (the "CORPORATE TRUSTEE") and
_______________, (the "INDIVIDUAL TRUSTEE", and, together with the Corporate
Trustee, the "TRUSTEE"):
1. Title Policy No. 22215 issued by Lawyers Title Insurance
Corporation on September 19, 1985 in the principal amount of
$14,946,665.00.
Very truly yours,
ROCKEFELLER CENTER PROPERTIES, INC.
By:
-----------------------------------------------
Richard M. Scarlata
President
Receipt acknowledged:
LAWYERS TITLE INSURANCE CORPORATION
By:
--------------------------------
<PAGE>
C-2
EXHIBIT C
Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
December , 19
Chicago Title Insurance Company
Ticor Title Guarantee Company
1211 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
Please be advised that as of the date hereof the undersigned has assigned
all of its right, title and interest in and under the following Mortgagee Title
Policies to the Trustee (as defined herein) pursuant and subject to that certain
Collateral Trust Agreement (the "TRUST AGREEMENT"), dated as of the date
hereof, among the undersigned, _________ (the "CORPORATE TRUSTEE") and
_______________, (the "INDIVIDUAL TRUSTEE", and, together with the Corporate
Trustee, the "TRUSTEE"):
1. Title Policy No. 41-85-01028 issued by Ticor Title Guarantee
Company on September 19, 1985 in the principal amount of
$14,946,665.00.
2. Title Policy No. 8501-00147 issued by Chicago Title Insurance
Company on September 19, 1985 in the principal amount of
$14,946,666.00.
Very truly yours,
ROCKEFELLER CENTER PROPERTIES, INC.
By:
-----------------------------------------------
Richard M. Scarlata
President
Receipt acknowledged:
Chicago Title Insurance Company
By:
-------------------------
Ticor Title Guarantee Company
<PAGE>
EXHIBIT D TO THE
COLLATERAL TRUST
AGREEMENT
<PAGE>
EXHIBIT D
[Date]
[Name and address of
institution holding
Escrow Account]
Ladies and Gentlemen:
Please be advised that pursuant and subject to the Collateral Trust
Agreement dated as of _________________________ between ______________________
(the "Trustee") and the undersigned, we have granted to the Trustee a security
interest in that certain escrow account, [account title] account no.
___________________ held by you and established pursuant to the Loan Agreement
dated as of September 19, 1985, as amended, among RCP Associates, Rockefeller
Center Properties and the undersigned.
Very truly yours,
ROCKEFELLER CENTER PROPERTIES, INC.
By
---------------------------------
Acknowledged:
[Institution holding
Escrow Account]
By
------------------------
<PAGE>
EXHIBIT E TO THE
COLLATERAL TRUST
AGREEMENT
<PAGE>
EXHIBIT E
Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
As of: , 19
---------------------------------
(the "Individual Trustee")
- ------------------
- ------------------
- ------------------
(the "Corporate Trustee")
- ------------------
- ------------------
- ------------------
Ladies and Gentlemen:
Reference is made to (i) that certain letter (the "LETTER"), dated
September 19, 1985, from RCP Associates and Rockefeller Center Properties
(collectively, "MORTGAGOR") to Rockefeller Center Properties, Inc. ("RCPI")
which assigns, as additional security for the $1,300,000,000.00 loan made by
RCPI to Mortgagor, all of Mortgagor's right title and interest in and to (A) any
claim against Lawyers Title Insurance Corporation, Chicago Title Insurance
Company or Ticor Title Guarantee Company (collectively, the "TITLE INSURERS")
arising out of a title defect to the real property owned by Mortgagor and (B)
the proceeds, if any, payable to Mortgagor as a result of any such claim or
defect ((A) and (B) are collectively referred to herein as the "ASSIGNED
RIGHTS") and (ii) that certain Collateral Trust Agreement (the "TRUST
AGREEMENT"; capitalized terms not otherwise defined herein have the meanings
given in the Trust Agreement), dated as of the date hereof, among RCPI, the
Individual Trustee and the Corporate Trustee.
In consideration of the making of the loans contemplated by the GSMC
Agreement and the Whitehall Agreement, RCPI hereby assigns to you, as additional
security for such loans, all of RCPI's right, title and interest in and to the
Assigned Rights; SUBJECT, HOWEVER, to all of the terms, provisions and
conditions of the Trust Agreement, including, but not limited to, reassignment
of the Assigned Rights to RCPI or its designee pursuant to Section 6 thereof.
<PAGE>
If the foregoing reflects our agreement, please indicate so by
signing the enclosed copies of this letter.
Very truly yours,
ROCKEFELLER CENTER PROPERTIES, INC.
By:
-------------------------------------
Richard M. Scarlata
President
ACKNOWLEDGED AND AGREED:
- --------------------------
[Individual Trustee]
[Corporate Trustee]
By:
--------------------------
Name:
Title:
<PAGE>
SCHEDULE I
TO THE COLLATERAL
TRUST AGREEMENT
MORTGAGES
1. Mortgages 1 and 2 as consolidated affect Block 1264 - Lot 5 and 30, Block
1265 - Lots 40, 8040, 50, 1001-1109, 71 and Block 1266 - Lot 1
MORTGAGE made by Rockefeller Center Inc. -to- Emigrant Savings Bank dated
10/1/75, recorded 10/1/75 in Reel 352 Page 231 to secure the sum of
$50,000,000.00 and interest. (Mortgage tax paid: $625,000.00)
ASSIGNMENT OF MORTGAGE
MORTGAGE 1 was assigned by Emigrant Savings Bank -to- Rockefeller Center
Properties Inc. by assignment dated 9/18/85, recorded 9/19/85, in Reel 962
Page 1808.
2. MORTGAGE made by Rock-Sinclair Inc. -to- Chase Manhattan Bank, N.A. dated
5/15/63, recorded 5/16/63 in Liber 6169 Page 6 to secure the sum of
$9,000,000.00 and interest. (Mortgage tax paid: $45,000.00)
ASSIGNMENT OF MORTGAGE
MORTGAGE 2 was assigned by Chase Manhattan Bank, N.A. -to- Rockefeller
Center Properties, Inc. by assignment dated 9/19/85, recorded 9/19/85, in
Reel 962 Page 1802.
Mortgage Consolidation and Spreader Agreement made by RCP Associates,
Rockefeller Center Properties and Rockefeller Center Properties, Inc. dated
9/19/85 and recorded 12/19/85 in Reel 962 Page 1813. Consolidates
mortgages recorded in Reel 352 Page 231 and Liber 6169 Mp. 6 to form a
single mortgage lien of $44,839,996 and spread to cover Block 1265 Lot 1,
Block 1266 Lot 1, Block 1264 Lot 5 and 30, Block 1265 Lots 1 and 71.
Amended and Restated Consolidation and Security Agreement made by RCP
Associates, Rockefeller Center Properties, and Rockefeller Center
Properties Inc. dated 12/1/88 and recorded 12/21/88 in Reel 1510 Page 1049.
Amends and restates mortgages recorded in Reel 352 Page 231 and Liber 6169
Page 6, as consolidated.
Amendment to Consolidated Mortgage made by and between RCP Associates,
Rockefeller Center Properties and Rockefeller Center Properties, Inc. dated
4/6/93 and recorded 5/5/93 in Reel 1967 Page 2102.
Amends terms of Amended and Restated Consolidation and Security Agreement
recorded in Reel 1510 Page 1049 and spreads lien of mortgages 1 and 2 as
consolidated to cover "Pledged Development Rights".
Mortgages 1 and 2 as consolidated may be satisfied or assigned by:
Rockefeller Center Properties Inc.
3. MORTGAGE made by RCP Associates and Rockefeller Center Properties -to-
Rockefeller Center Properties Inc. dated 9/19/85 recorded 9/6/94 in Reel
2135 Page 1703 to secure the sum of $1,255,160,004.00 and interest.
(Mortgage tax paid: $34,516,900.00)
<PAGE>
Amended and Restated mortgage made by and between RCP Associates and
Rockefeller Center Properties with Rockefeller Center Properties, Inc.
dated 12/1/88 recorded 9/6/94 in Reel 2135 Page 1759. Amends and restates
mortgage in Reel 2135 Page 1703 now due and owing in the principal amount
of $1,255,260,004.00.
Amendment to Amended and Restated mortgage made by and between RCP
Associates and Rockefeller Center Properties with Rockefeller Center
Properties, Inc. dated 4/6/93 recorded 9/6/94 in Reel 2135 Page 1868.
Amends restated and amended mortgage in Reel 2135 Page 1759. Spreads lien
to cover "Pledged Development Rights".
Amendment to Amended and Restated mortgage made by and between RCP
Associates and Rockefeller Center Properties with Rockefeller Center
Properties, Inc. dated 4/6/93 recorded 9/6/94 in Reel 2135 Page 1892.
Mortgage 3 may be satisfied or assigned by:
Rockefeller Center Properties Inc.
<PAGE>
SCHEDULE II
TO THE COLLATERAL
TRUST AGREEMENT
1. Letter of Credit dated April 8, 1993 from The Mitsubishi Bank. Limited to
the Borrower, as beneficiary.
2. Letter of Credit dated April 8, 1993 from The Mitsubishi Trust and Banking
Corporation, New York Branch, to the Borrower, as beneficiary.
<PAGE>
SCHEDULE III
TO THE COLLATERAL
TRUST AGREEMENT
1. Title Policy No. 2215 issued by LTIC on September 19, 1985 in the principal
amount of $14,946,665.00.
2. Title Policy No. 41-85-01028 issued by Ticor Title Guarantee Company on
September 19, 1985 in the principal amount of $14,946,665.00.
3. Title Policy No. 8501-00147 issued by Chicago Title Insurance Company on
September 19, 1985 in the principal amount of $14,946,666.00.
<PAGE>
EXHIBIT 4.11
[CONFORMED COPY]
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 29, 1994, by and
among Rockefeller Center Properties, Inc., a Delaware corporation (the
"Company"), Goldman Sachs Mortgage Company, a New York limited partnership
("GSMC") and Whitehall Street Real Estate Limited Partnership V ("Whitehall").
RECITALS
WHEREAS, the Company, the lenders party thereto (the "Lenders") and
GSMC, as Agent, have entered into a Loan Agreement (the "Loan Agreement"), dated
as of December 18, 1994, providing for the making of certain loans by the
Lenders (the "Loans") in the aggregate principal amount of $150,000,000 to be
evidenced by certain floating rate notes, due 2000 (the "Notes", which term
shall include any security issued by the Company pursuant to Section 5.09 of the
Loan Agreement); and
WHEREAS, the Company and Whitehall have entered into a Debenture
Purchase Agreement (the "Debenture Purchase Agreement"), dated as of December
18, 1994, providing for the issuance by the Company and the purchase by
Whitehall of Debentures (the "Debentures", which term shall include any security
issued by the Company pursuant to Section 5.09 of the Debenture Purchase
Agreement) in the aggregate principal amount of $75 million.
WHEREAS, this Agreement is being entered into as a condition to the
making of the Loans and the purchase of the Debentures of the Loan Agreement and
Debenture Purchase Agreement to facilitate the resale by GSMC and Whitehall and
their successors and assigns of the Notes and Debentures, respectively;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
1.1. As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "BUSINESS DAY" means any day that is not a day on which banking
institutions are authorized or required to be closed in the State of New York or
the State in which the
<PAGE>
principal corporate trust office of any trustee under an Indenture is located.
(b) "COLLATERAL TRUST AGREEMENT" means the Collateral Trust Agreement,
dated as of December 29, 1994, from the Company to Bankers Trust Company, as
Corporate Trustee, and Gary Vaughan, as Individual Trustee.
(c) "COMPANY" has the meaning specified in the first paragraph to this
agreement.
(d) "COMPANY SECURITIES" has the meaning specified in Section 2.1(g).
(e) "CUT BACK NOTICE" has the meaning specified in Section 2.1(d).
(f) "DEBENTURE PURCHASE AGREEMENT" has the meaning specified in the
Recitals.
(g) "DEBENTURES" has the meaning specified in the Recitals.
(h) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
(i) "HOLDERS" means the holders from time to time of the Notes or
Debentures.
(j) "LENDER" has the meaning specified in the Recitals.
(k) "LOAN AGREEMENT" has the meaning specified in the Recitals.
(l) "LOANS" has the meaning specified in the Recitals.
(m) "NOTES" has the meaning specified in the Recitals.
(n) "PIGGY BACK REGISTRATION STATEMENT" has the meaning specified in
Section 2.2.
(o) "PIGGYBACK REGISTRATION RIGHTS" has the meaning specified in
Section 2.2.
(p) "PROSPECTUS" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering made pursuant to Section 2.1 or 2.2 of any of the
Company's securities covered by such Registration Statement and by all other
amendments and supplements to such
-2-
<PAGE>
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
(q) "REGISTERED SECURITIES" has the meaning specified in Section 3.1.
(r) "REGISTRATION DEMAND" has the meaning specified in Section 2.1.
(s) "REGISTRATION STATEMENT" means any registration statement of the
Company pursuant to Section 2.1 or 2.2 filed under the Securities Act that
covers any of the Company's securities, including the Prospectus, any amendments
and supplements to such Registration Statement, including post-effective
amendments, and all exhibits and all materials incorporated by reference in such
registration statement.
(t) "REPRESENTATIVE" has the meaning specified in Section 3.8.
(u) "SAR AGREEMENT" means the SAR Agreement dated as of December 18, 1994
between the Company and Chemical Bank, as agent.
(v) "SEC" means the Securities and Exchange Commission.
(w) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(x) "SHELF REGISTRATION" has the meaning specified in Section 2.1(c)(i).
(y) "SHELF REGISTRATION STATEMENT" has the meaning specified in Section
2.1(c)(i).
(z) "60 DAY EFFECTIVE DATE" has the meaning specified in Section
2.1(c)(i).
(aa) "TAKEDOWN" has the meaning specified in Section 2.1(c)(ii).
(bb) "WARRANT AGREEMENT" means the Warrant Agreement dated as of
December 18, 1994 between the Company and Chemical Bank, as agent.
2. REGISTRATION RIGHTS.
2.1. DEMAND REGISTRATION. (a) The Holders of (i) at least 5% of the
aggregate principal amount of Notes or Debentures, as the case may be, then
outstanding shall
-3-
<PAGE>
have the right to request in writing that the Company effect a registration of
such Holders' Notes or Debentures, as the case may be, pursuant to the
provisions of this Section 2.1 or (ii) at least 1% of the aggregate principal
amount of Notes or Debentures, as the case may be, then outstanding shall have
the right to request in writing that the Company effect a registration of such
Holders' Notes or Debentures, as the case may be, pursuant to a Takedown under
this Section 2.1 (each such request, a "Registration Demand"). A Registration
Demand shall specify the principal amount of Notes or Debentures that each such
Holder proposes to sell in the offering. If no Shelf Registration Statement (as
defined in Section 2.1(c)(i) below) shall be effective as of the date of the
Registration Demand, the demanding Holders may elect to have the Company
register such Notes or Debentures in accordance with either Section 2.1(c)(i) or
Section 2.1(d). If a Shelf Registration Statement shall be effective as of the
date of the Registration Demand, then all demanding Holders shall be deemed to
have elected to register their Notes or Debentures, as the case may be, pursuant
to Section 2.1(c)(ii). The Holders of Notes and the Holders of Debentures may
each make four Registration Demands pursuant to Sections 2.1(c)(i) and 2.1(d)
and four Registration Demands per year pursuant to an existing Shelf
Registration Statement pursuant to Section 2.1(c)(ii) for which the Company will
pay and bear all costs and expenses in accordance with Section 3.3 and
thereafter the Holders may make an unlimited number of Registration Demands for
which such requesting Holders shall pay and bear all costs and expenses.
(b) Upon receipt of a Registration Demand (other than for a
Takedown), the Company shall give written notice thereof to all of the other
Holders of Notes or Debentures, as the case may be, at least 30 days prior to
the initial filing of a Registration Statement relating to such Registration
Demand. Each of the other Holders of Notes or Debentures, as the case may be,
shall have the right, within 20 days after the delivery of such notice, to
request that the Company include all or a portion of such Holder's Notes or
Debentures, as the case may be, in such Registration Statement. Upon receipt of
a Registration Demand that is a Takedown, a Representative of such selling
holders shall give written notice thereof to all of the Holders of Notes or
Debentures, as the case may be, at least three Business Days prior to the
initial filing of a Registration Statement relating to such Registration Demand.
Each of the other such Holders shall have the right, within one Business Day
after the delivery of such notice, to request that the Company include all or a
portion of such Holder's Notes or Debentures, as the case may be, in such
Registration Statement.
-4-
<PAGE>
(c) (i) As promptly as practicable and in no event later than
60 days after the Company receives a Registration Demand electing to register
Notes or Debentures pursuant to this Section 2.2(c)(i), the Company shall file
under the Securities Act a "shelf" registration statement (the "Shelf
Registration Statement") providing for the registration and the sale on a
continuous or delayed basis of all of the Notes or Debentures, as the case may
be, pursuant to Rule 415 under the Securities Act and/or any similar rule that
may be adopted by the SEC (the "Shelf Registration"). The Company agrees to use
its best efforts to cause the Shelf Registration Statement to become or be
declared effective no later than 60 calendar days after the filing (the "60 Day
Effective Date") and to keep such Shelf Registration continuously effective for
a period ending on the occurrence of the earlier of (x) the third anniversary of
the Registration Demand and (y) notification by all of the requesting Holders
that such Holders have sold all of the Notes or Debentures, as the case may be,
owned by them. The Company further agrees to supplement or make amendments to
the Shelf Registration Statement and the prospectus included therein (x) as may
be necessary to effect and maintain the effectiveness of such Shelf Registration
Statement for the period set forth in the previous sentence and (y) as may be
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration or by the
Securities Act or rules and regulations thereunder for shelf registration. The
Company agrees to furnish to the Holders of the securities registered thereby
copies of any such supplement or amendment (but excluding any periodic reports
required to be filed with the SEC under the Exchange Act) so that such Holders
through the Representative(s) have a reasonable opportunity to comment thereon
prior to its being used and/or filed with the SEC.
(ii) As promptly as practicable after the Company receives a
Registration Demand from a Holder or Holders of Notes or Debentures pursuant to
which such Holder is deemed to have elected to register Notes or Debentures
pursuant to an existing Shelf Registration Statement (a "Takedown"), the Company
shall file a Prospectus or any necessary supplement to a Prospectus with the SEC
and otherwise comply with the Securities Act and all rules, regulations and
instructions thereunder applicable to such Takedown. In the event that no
Prospectus or other filing is required nor any other action that necessitates
the Company's participation is required to effect a sale of Notes or Debentures,
as the case may be, pursuant to an effective Shelf Registration Statement, each
selling holder agrees to provide the Company with at least three Business Days'
notice of its intention to sell Notes or Debentures pursuant to the Shelf
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Registration Statement; PROVIDED, HOWEVER, that the Company shall have the right
to postpone any such sale for a reasonable period of time not to exceed 90 days
if: (i) in the opinion of counsel for the Company, the Company would, in
connection with such sale, be required to disclose in such Registration
Statement (or any prospectus supplement to be used in connection therewith)
information not otherwise then required by law to be publicly disclosed and
(ii) in the good faith judgment of the Board of Directors of the Company, such
disclosure would adversely affect any material corporate development or business
transaction contemplated by the Company.
(d) As promptly as practicable and in no event later than 60 days
after the Company receives a Registration Demand electing to register Notes or
Debentures pursuant to this Section 2.1(d), the Company shall file with the SEC
a Registration Statement, on any form that shall be available and appropriate
for the sale of such Notes or Debentures in accordance with the intended method
of distribution thereof. The Company shall include in such Registration
Statement all of the Notes or Debentures, as the case may be, of such requesting
Holders that such Holders have requested to be included therein pursuant to
Sections 2.1(a) and 2.1(b); PROVIDED, HOWEVER, that, if the requested
registration involves an underwritten offering, the Notes or Debentures, as the
case may be, to be registered may be reduced if the managing underwriter
delivers a notice (a "Cutback Notice") pursuant to Section 2.1(g).
The Company shall use its best efforts to cause each such Registration
Statement to be declared effective and to keep such Registration Statement
continuously effective and usable for resale of such Notes or Debentures, as the
case may be, for a period of 90 days from the date on which the SEC declares
such Registration Statement effective or such shorter period as is necessary to
complete the distribution of the securities registered thereunder.
(e) The Representative(s) shall determine the method of distribution
of Notes or Debentures pursuant to a Registration Demand.
(f) If a Registration Demand involves an underwritten offering,
Goldman, Sachs & Co. shall be the managing underwriter for such offering unless
Goldman, Sachs & Co. declines such engagement, in which event, the
Representative(s) shall select the managing underwriter; PROVIDED that such
managing underwriter so selected shall be reasonably satisfactory to the
Company.
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(g) In the event that the proposed offering is an underwritten
offering and includes securities to be offered for the account of the Company
(the "Company Securities"), the provisions of this Section 2.1(g) shall be
applicable if the managing underwriter delivers a Cutback Notice stating that,
in its opinion, the principal amount of Company Securities and the principal
amount of Notes or Debentures, as the case may be that the Holders have
requested to be registered exceeds the maximum principal amount of securities
specified by the managing underwriter in such Cutback Notice that may be
distributed without adversely affecting the price, timing or distribution of the
securities being distributed. If the managing underwriter delivers such Cutback
Notice, the number of Company Securities and Notes or Debentures, as the case
may be, requested to be registered shall be reduced in the following order until
the principal amount of securities to be registered has been reduced to the
maximum principal amount of securities specified by the managing underwriter in
the Cutback Notice: first, the Company Securities and second, the Notes or
Debentures, as the case may be, in proportion to the respective principal amount
of Notes or Debentures, as the case may be, that each Holder has requested to be
registered.
(h) No Registration Demand relating to Notes or Debentures (other
than a Takedown) may be made until the expiration of six months following the
completion of the distribution of the securities registered under any
Registration Statement that has been filed and has become effective pursuant to
a prior Registration Demand relating to Notes or Debentures, respectively.
(i) The Company shall not be obligated to file a Registration
Statement relating to any Registration Demand (other than a Takedown) unless the
requests by the Holders for such registration cover 5% or more of aggregate
principal amount of Notes or Debentures, as the case may be, then outstanding.
2.2. PIGGYBACK REGISTRATION RIGHTS. (a) If the Company proposes to
file a Registration Statement with the SEC respecting an offering, whether
primary or secondary, of any debt securities of the Company, the Company shall
give written notice to all the Holders of Notes and Debentures at least 30 days
prior to the initial filing of the Registration Statement relating to such
offering. Each Holder shall have the right, within 20 days after delivery of
such notice, to request in writing that the Company include all or a portion of
such Holder's Notes or Debentures in such Registration Statement ("Piggyback
Registration Rights").
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(b) In the event that the proposed offering is an underwritten
offering covering debt securities to be offered for the account of Company
Securities, the provisions of this Section 2.2(b) shall be applicable if the
managing underwriter delivers a Cutback Notice stating that, in its opinion, the
aggregate principal amount of Company Securities and the principal amount of
Notes or Debentures that the Holders have requested to be registered exceeds the
maximum principal amount of securities specified by the managing underwriter in
such Cutback Notice that may be distributed without adversely affecting the
price, timing or distribution of the securities being distributed. If the
managing underwriter delivers such Cutback Notice, the principal amount of
Company Securities, Notes and Debentures requested to be registered shall be
reduced in the following order until the principal amount of securities to be
offered has been reduced to the maximum principal amount of securities specified
by the managing underwriter in the Cutback Notice: first, the Notes and
Debentures in proportion to the respective principal amount of Notes and
Debentures that each Holder has requested to be registered and second, the
Company Securities.
(c) The provisions of this Section 2.2 shall not be applicable in
connection with (i) a registration statement filed by the Company pursuant to
Section 2.1 or (ii) a transaction in which a registration statement is filed by
the Company on Form S-4 or any successor forms.
2.3. COMPANY'S ABILITY TO POSTPONE REGISTRATION RIGHTS. (a) The
Company shall have the right to postpone the filing of any Registration
Statement relating to a Demand Registration for a reasonable period of time not
to exceed 90 days if: (i) in the opinion of counsel for the Company, the
Company would be required to disclose in such Registration Statement information
not otherwise then required by law to be publicly disclosed and (ii) in the good
faith judgment of the Board of Directors of the Company, such disclosure would
adversely affect any material corporate development or business transaction
contemplated by the Company; PROVIDED, HOWEVER, that such 90-day period shall be
deducted from the six-month interval allowed between Registration Demands
pursuant to Section 2.1(h).
(b) If at any time after the Company notifies the Holders of its
intention to file a Registration Statement that would trigger Piggyback
Registration Rights, the Board of Directors of the Company in good faith shall
determine for any reason not to effect such registration or to postpone such
registration, the Company shall (i) in the case of a determination not to effect
such registration, be relieved of its obligation to register any Notes or
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Debentures of Holders requesting inclusion in such registration, and (ii) in the
case of a determination to postpone such registration, be permitted to postpone
registering the Notes or Debentures of Holders requesting inclusion in such
registration.
(c) The Company shall as promptly as practicable notify the Holders
of any postponement pursuant to this Section 2.3, specifying the reasons
therefor.
2.4. HOLDER WITHDRAWAL RIGHTS. The Company shall withdraw from
registration any Notes and Debentures on request of a Holder thereof; PROVIDED
that, in the case of a Registration Demand under Section 2.1, a Demand
Registration shall be deemed to have been made for the purpose of the number of
such Demands permitted to be made under Section 2.1(a) if the Company shall have
incurred $50,000 in expenses relating to such Demand Registration at such time
as such Holder makes such withdrawal. The Company shall not be obligated to
maintain the effectiveness of any Registration Statement if, after any
withdrawal of Notes and/or Debentures by a Holder, the principal amount of Notes
and Debentures remaining subject to such Registration Statement is less than 5%
of the aggregate principal amount of Notes or Debentures, as the case may be,
then outstanding, unless (i) the Company is also registering securities on such
Registration Statement for its own account or (ii) if such Registration
Statement relates to securities other than for the account of the Company.
3. REGISTRATION PROCEDURES.
3.1. COVENANTS OF THE COMPANY APPLICABLE TO ALL REGISTRATION
STATEMENTS. This Section 3.1 applies to all Registration Statements filed by
the Company and referred to in Section 2.1 or 2.2. The securities covered by
each such Registration Statement are referred to as the "Registered Securities".
Each underwriter, agent, selling broker, dealer manager or similar securities
industry professional participating in any offering of the Registered Securities
is referred to as an "underwriter" or "agent" and any agreement entered into
with an underwriter or agent is referred to as an "underwriting or agency
agreement". In connection with each such registration, the Company covenants
with each Holder of Notes or Debentures participating in such offering (each, a
"selling holder") and each underwriter or agent participating therein as
follows:
(a) The Company will notify the selling holders and the managing
underwriter or agent, immediately, and
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confirm the notice in writing, (i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, shall have become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the SEC,
(iii) of any request by the SEC to amend the Registration Statement or
amend or supplement the Prospectus or for additional information, (iv) of
the issuance by the SEC of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus, or of the suspension of the qualification of
the Registered Securities for offering or sale in any jurisdiction, or of
the institution or threatening of any proceedings for any of such purposes,
(v) if at any time when a prospectus is required by the Securities Act to
be delivered in connection with sales of the Registered Securities the
representations and warranties of the Company contemplated by
Section 3.1(i) cease to be true and correct and (vi) of the existence of
any fact that results or may result in the Registration Statement, the
Prospectus or any document incorporated therein by reference containing an
untrue statement of material fact or omitting to state a material fact
required to be stated therein or necessary to make any statement therein
not misleading.
(b) The Company will use every reasonable effort to prevent the
issuance of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus and, if any such order is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) The Company will afford the Representative(s) and the managing
underwriters a reasonable opportunity to comment prior to its being filed
with the SEC any Registration Statement, any amendment thereto, or any
amendment of or supplement to the Prospectus (including amendments of the
documents incorporated by reference into the Prospectus but excluding any
periodic reports required to be filed with the SEC pursuant to the Exchange
Act).
(d) The Company will furnish to each selling holder and to the
managing underwriter or agent, without charge, as many signed copies of the
Registration Statement (as originally filed) and of all amendments thereto,
whether filed before or after the Registration Statement becomes effective,
copies of all
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exhibits and documents filed therewith, including documents incorporated by
reference into the Prospectus, and signed copies of all consents and
certificates of experts, as such selling holder or the managing underwriter
or agent may reasonably request, and will furnish to the managing
underwriter, for each other underwriter participating in an underwritten
offering, one conformed copy of the Registration Statement as originally
filed and of each amendment thereto (including documents incorporated by
reference into the Prospectus but without exhibits).
(e) The Company will deliver to each selling holder and each
underwriter or agent participating in such offering, without charge, as
many copies of each preliminary prospectus as such selling holder or such
underwriter or agent may reasonably request, and the Company hereby
consents to the use of such copies for purposes permitted by the Securities
Act. The Company will deliver to each selling holder and each underwriter
or agent participating in such offering, without charge, from time to time
during the period when the Prospectus is required to be delivered under the
Securities Act, such number of copies of the Prospectus (as supplemented or
amended) as such selling holder or such underwriter or agent may reasonably
request.
(f) The Company will comply to the best of its ability with the
Securities Act and the rules and regulations of the SEC thereunder, and the
Exchange Act and the rules and regulations of the SEC thereunder so as to
permit the completion of the distribution of the Registered Securities in
accordance with the intended method or methods of distribution contemplated
in the Prospectus. If at any time when a prospectus is required by the
Securities Act to be delivered in connection with sales of the Registered
Securities any event shall occur or condition exist as a result of which it
is necessary, in the opinion of counsel for the selling holders, counsel
for the underwriters or agents or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion any of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of
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the Securities Act or the rules and regulations of the SEC thereunder, the
Company will promptly prepare and file with the SEC, subject to
Section 3.1(c), such amendment or supplement as may be necessary to correct
such untrue statement or omission or to make the Registration Statement or
the Prospectus comply with such requirements.
(g) The Company will use its best efforts, in cooperation with the
selling holders or the underwriters or agents, as the case may be, to
qualify the Registered Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
selling holders or the managing underwriter or agents, as the case may be,
may designate; PROVIDED, HOWEVER, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject.
The Company will file such statements and reports as may be required by the
laws of each jurisdiction in which the Registered Securities have been
qualified as above provided.
(h) The Company will use its best efforts to effect the listing of
the Registered Securities covered by a Registration Statement not then
listed on each national securities exchange on which similar securities
issued by the Company are then listed or, if no such securities are then
listed, on any national securities exchange if, in either case, so
requested by (i) Whitehall with respect to the Debentures for so long as it
is a holder of Debentures or (ii) GSMC with respect to the Notes for so
long as it is a holder of Notes, or if requested by the managing
underwriter.
(i) The Company shall make such representations and warranties to the
selling holders and the underwriters or agents, if any, in form, substance
and scope as are customarily made by issuers to underwriters in
underwritten public offerings.
(j) On the effective date of the Registration Statement or, in the
case of an underwritten offering, on the date of delivery of the Registered
Securities sold pursuant thereto, the Company shall cause to be delivered
to the selling holders and the underwriters or agents, if any, opinions of
counsel for the Company with respect to, among other things, the due
incorporation and good standing of the Company; the
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qualification of the Company to transact business as foreign corporation;
the due authorization, execution and delivery of this Agreement; the due
authorization, execution, authentication and issuance, and the validity and
enforceability, of the Notes or Debentures, as the case may be; the absence
of material legal or governmental proceedings involving the Company; the
absence of a breach by the Company of, or a default under, agreements
binding the Company; the absence of governmental approvals required to be
obtained in connection with the registration, offering and sale of the
Notes or Debentures as the case may be; the compliance as to form of the
Registration Statement and any documents incorporated by reference therein
with the requirements of the Securities Act; the effectiveness of such
Registration Statement under the Securities Act; the security interest
created by the Collateral Trust Agreement and a statement that, as of the
date of the opinion and of the Registration Statement or most recent post-
effective amendment thereto, as the case may be, nothing has come to the
attention of such counsel which causes them to believe that either the
Registration Statement or the Prospectus included therein, as then amended
or supplemented, or the documents incorporate by reference therein (in the
case of such documents, in the light of the circumstances existing at the
time that such documents were filed with the Commission under the Exchange
Act), contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein not misleading (it
being understood that such counsel need express no opinion as to the
financial statements and other financial data included therein or omitted
therefrom).
In the event that any broker-dealer registered under the Exchange
Act shall be an "affiliate" of, or shall have a "conflict of interest"
with, the Company (each such term as defined in Schedule E to the By-Laws
of the National Association of Securities Dealers ("NASD")), and such
broker-dealer shall underwrite debt securities of the Company or
participate as a member of an underwriting syndicate or selling group or
otherwise "assist in the distribution" (within the meaning of the Rules of
Fair Practice and the By-Laws of the NASD) thereof, whether as a holder of
such debt securities of the Company or as an underwriter, a placement or
sales agent or a broker or dealer in respect of such debt securities or
otherwise, the Company shall assist such broker-dealer, in complying with
the requirements of such Rules and By-Laws, including, without limitation,
by (1) if such
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Rules or By-Laws, including Schedule E thereto, shall so require, engaging
a "qualified independent underwriter" (as defined in such Schedule) to
participate in the preparation of the registration statement relating to
such debt securities to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by the
Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the maximum public offering price of
such debt securities, (2) paying the fees and expenses of any such
qualified independent underwriter and indemnifying the qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 3.4 hereof, and (3) providing to such
broker-dealer such information concerning the Company and its affiliates,
officers, directors, employees and securityholders as may be required in
order for such broker-dealer to comply with the requirements of Schedule E
to the NASD Bylaws and Section 44 of the Rules of Fair Practice.
(k) Immediately prior to the effectiveness of the Registration
Statement or, in the case of an underwritten offering, at the time of
delivery of any Registered Securities sold pursuant thereto, the Company
shall cause to be delivered to the selling holders and the underwriters or
agents, if any, letters from the Company's independent public accountants
stating that such accountants are independent public accountants with
respect to the Company within the meaning of the Securities Act and the
applicable published rules and regulations of the SEC thereunder, and
otherwise in customary form and covering such financial and accounting
matters as are customarily covered by letters of the independent public
accountants delivered in connection with primary underwritten public
offerings.
(l) If the managing underwriter or agent so requests, the
underwriting or agency agreement shall set forth in full the provisions
hereof relating to covenants, registration expenses, lock-up agreements,
indemnification and contribution contained in Sections 3.1, 3.2, 3.3, 3.4,
3.5, 3.8 and 3.9, with such changes therein as may be agreed to by the
managing underwriter or agent, the Company and the selling holders.
(m) The Company shall deliver such documents and certificates as may
be requested by any selling holder or the underwriters or agents, if any,
to evidence
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compliance with Section 3.1(i) and with any customary conditions contained
in the underwriting or agency agreement, if any.
(n) The Company will make available for inspection by representatives
of the selling holders and the underwriters or agents participating in such
offering, any attorney or accountant retained by such selling holders or
underwriters or agents and, with respect to any private placement of Notes
or Debentures, as the case may be, upon notice to the Company, prospective
purchasers, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors
and employees to supply all information reasonably requested by any such
representative, underwriter or agent, attorney or accountant in connection
with the preparation of the Registration Statement; PROVIDED, HOWEVER, that
any records, information or documents that are designated by the Company in
writing as confidential shall be kept confidential by each such person (by,
among other things, if so requested by the Company, entering into a
confidentiality agreement in form and substance satisfactory to the
Company) unless such records, information or documents become part of the
public domain through no fault of such person or unless disclosure thereof
is required by court or administrative order or the SEC (including the
federal securities law).
(o) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days after the close of the
period covered thereby (or 90 days if such period is a fiscal year), an
earnings statement of the Company (in form complying with the provisions of
Rule 158 under the rules and regulations of the SEC under the Securities
Act), covering a period of 12 months beginning after the effective date of
the Registration Statement but not later than the first day of the
Company's fiscal quarter next following such effective date.
(p) The Company will enter into such customary agreements, including
a customary underwriting or agency agreement with the underwriters or
agents, if any, and take all such other actions in connection with the
offering in order to expedite or facilitate the disposition of the
Registered Securities.
(q) (i) Prior to or at the time the Registration Statement becomes
effective, the Company will prepare
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and qualify a trust indenture relating to the Notes or Debentures, as the
case may be (an "Indenture"), under the Trust Indenture Act of 1939. In
the event that any modification or amendment to such Indenture is required
by such Act or the rules and regulations thereunder or by the staff of the
SEC in order so to qualify the Indenture, the Company shall without delay
solicit consents of holders (as defined in such Indenture) in the manner
and with the effect provided by such Indenture, pursuant to which such
holders shall be asked to consent to such modifications or amendments, but
only such modifications or amendments, as shall be so required. In
connection with any such solicitation, the Company shall recommend that
Holders of Notes or Debentures, as the case may be, consent to such
modifications or amendments. Notwithstanding the foregoing, in the event
that such modifications or amendments may be effected without the consent
of such Holders pursuant to the applicable provisions of the Indenture, the
Company shall use its best efforts to effect such modifications or
amendments without such consent.
(ii) In the event that any such amendment or modification
involves the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable
provisions of the Indenture.
3.2. COVENANTS OF THE SELLING HOLDERS. (a) Each selling holder
shall use its best efforts to furnish to the Company such information regarding
the distribution of such Registered Securities as is customarily requested from
selling holders in underwritten public offerings.
(b) Each selling holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in
Section 3.1(a)(vi), such selling holder will forthwith discontinue the
disposition of its Registered Securities pursuant to the Registration Statement
until such selling holder's receipt of the copies of a supplemented or amended
Prospectus contemplated by Section 3.1(f), or until it is advised in writing by
the Company that the use of such Prospectus may be resumed. If the Company
shall give any such notice, the Company shall extend the period of time during
which the Company is required to keep the Registration Statement effective and
usable by the number of days during the period from the date of receipt of such
notice to the date when each selling holder of Registered Securities covered by
such Registration Statement either receives the copies of a supplemented or
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amended Prospectus contemplated by Section 3.1(f) or is advised in writing by
the Company that the use of such Prospectus may be resumed.
(c) Each selling holder agrees to make customary representations and
warranties to the Company and the underwriters or agents, if any, in form,
substance and scope as are customarily made by selling holders in underwritten
public offerings, but no selling holders, as such, shall be required to make any
representation or warranty as to the accuracy or completeness of the
Registration Statement (except as to written information furnished to the
Company by such selling holder expressly for use therein).
(d) Each selling holder agrees to provide the Company, upon receipt
of its request, with such information about the selling holder to enable the
Company to comply with the requirements of the Securities Act and to execute
such certificates as the Company may reasonably request in connection with such
information and otherwise to satisfy any requirements of law.
3.3. REGISTRATION EXPENSES. (a) The Company will pay and bear all
costs and expenses incident to the performance of its obligations under this
Agreement with respect to each registration pursuant to Section 2.1 or 2.2,
including, without limitation:
(i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), as originally
filed and as amended, any preliminary prospectuses and the Prospectus and
any amendments or supplements thereto, and the cost of furnishing copies
thereof to the selling holders or the underwriters or agents, as the case
may be;
(ii) the preparation, printing and distribution of any underwriting
or agency agreement, certificates representing the Registered Securities,
any Blue Sky Survey and other documents relating to the performance of and
compliance with this Agreement;
(iii) the fees and disbursements of the Company's counsel and
accountants and the reasonable fees and disbursements of one counsel
retained by the selling holders pursuant to Section 3.3(b);
(iv) the fees and disbursements of the underwriters or agents
customarily paid by issuers or sellers of securities and the reasonable
fees and expenses of any special experts retained in connection with the
Registration Statement, but excluding
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underwriting discounts and commissions and transfer taxes, if any;
(v) the qualification of the Registered Securities under applicable
securities laws in accordance with Section 3.1(g) and any filing for review
of the offering with the NASD, including filing fees and fees and
disbursements of counsel for the selling holders and the underwriters or
agents, as the case may be, in connection therewith, in connection with any
Blue Sky Survey; and
(vi) all fees and expenses incurred in connection with the listing, if
any, of any of the Registered Securities on any securities exchange
pursuant to Section 3.1(h).
(b) In connection with the filing of each Registration Statement, the
Company will reimburse the selling holders for the reasonable fees and
disbursements of one firm of legal counsel, which shall be chosen by the
Representative(s) and shall be reasonably satisfactory to the Company.
(c) Each selling holder will pay and bear all costs and expenses
incident to the delivery of the Registered Securities to be sold by it,
including any transfer taxes payable upon the sale of such Registered Securities
to the purchaser thereof and any underwriting discounts or commissions payable
to underwriters or agents in connection therewith.
3.4. INDEMNIFICATION. (a) In connection with each registration
pursuant to Section 2.1 or 2.2, the Company agrees to indemnify and hold
harmless each selling holder, each underwriter or agent participating in such
offering, and each person, if any, who controls any selling holder or any such
underwriter or agent within the meaning of Section 15 of the Securities Act as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of an untrue statement of
a material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary
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in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company, which shall not be unreasonably
withheld; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel chosen by the selling holders and by the
underwriters or agents), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that, with respect to any selling holder or any underwriter
or agent, this indemnity does not apply to any loss, liability, claim, damage or
expense to the extent arising out of an untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any such selling holder or
underwriter or agent, respectively, expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Each selling holder agrees severally, and not jointly, to
indemnify and hold harmless the Company, its directors, each of its officers who
signed a Registration Statement, each underwriter or agent participating in such
offering and the other selling holders, and each person, if any, who controls
the Company, any such underwriter or agent and any other selling holder within
the meaning of Section 15 of the Securities Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section 3.4(a), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary
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<PAGE>
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such selling holder expressly for use in the Registration Statement
(or any amendment thereto), or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) The obligations of the Company under Section 3.4(a) and of the
selling holders under Section 3.4(b) to indemnify any underwriter or agent who
participates in an offering (or any person, if any, controlling such underwriter
or agent within the meaning of Section 15 of the Securities Act) shall be
conditioned upon the underwriting or agency agreement with such underwriter or
agent containing an agreement by such underwriter or agent to indemnify and hold
harmless the Company, its directors, each of its officers who signed a
Registration Statement, and each selling holder, and each person, if any, who
controls the Company or any such selling holder within the meaning of Section 15
of the Securities Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 3.4(a), as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such underwriter or agent expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(d) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve the indemnifying party from any liability it may have
under this Agreement, except to the extent that the indemnifying party is
materially prejudiced thereby. If it so elects, after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it,
PROVIDED that the indemnified party shall be entitled to participate in the
defense of such action with counsel chosen by it, the fees and expenses of
which, subject to the next sentence, shall be paid by the indemnifying party.
In no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel for (i) the Company, its officer, directors
and controlling persons as a group, (ii) the selling holders and their
controlling persons as a group and (iii) the
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<PAGE>
underwriters or agents and their controlling persons as a group, in each case,
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
3.5. CONTRIBUTION. (a) In order to provide for just and equitable
contribution in circumstances under which the indemnity provided for in this
Section 3 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the selling
holders and the underwriters or agents shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity incurred by the Company, the selling holders and one or more of the
underwriters or agents, as incurred, in such proportions that (i) the
underwriters or agents are responsible for that portion represented by the
percentage that the underwriting discounts and commissions for the offering
appearing on the cover page of the Prospectus (or, if not set forth on the cover
page, that are applicable to the offering) bear to the initial public offering
price appearing on the cover page (or, if not set forth on the cover page, that
are applicable to the offering) and (ii) each of the selling holders and the
Company is responsible for an equal portion of the balance.
(b) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 3.5, each person, if any, who
controls an underwriter or agent within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as such underwriter or
agent, and each director of the Company, each officer of the Company who signed
a Registration Statement, and each person, if any, who controls the Company or a
selling holder within the meaning of Section 15 of the Securities Act shall have
the same rights to contribution as the Company or such selling holder, as the
case may be.
3.6. REPRESENTATIONS, WARRANTIES AND INDEMNITIES TO SURVIVE. The
indemnity and contribution agreements contained in this Section 3 and the
representations and warranties of the Company referred to in Section 3.1(i)
shall remain operative and in full force and effect regardless of (i) any
termination of any underwriting or agency agreement, (ii) any investigation made
by or on behalf of the selling holders, the Company or any underwriter or agent
or controlling person or (iii) the
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<PAGE>
consummation of the sale or successive resales of the Registered Securities.
3.7. RULE 144. The Company covenants that it will continue to file
the reports required to be filed by it under the Securities Act and the rules
and regulations of the SEC thereunder and the Exchange Act and the rules and
regulations of the SEC thereunder and it will take such further action as any
Holder of Debentures or Notes may reasonably request, all to the extent required
from time to time to enable such Holder to sell Notes or Debentures, as the case
may be, without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time. Upon the request of any Holder of Notes or
Debentures, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
3.8. PARTICIPATION IN UNDERWRITTEN OFFERINGS. No Holder of Notes or
Debentures may participate in any underwritten offering hereunder unless:
(a) Such Holder executes a power of attorney appointing one or more
(up to three) attorneys (each, a "Representative") designated by the
selling holders proposing to sell a majority of the Notes or Debentures, as
the case may be, proposed to be sold by all selling holders. Each such
Representative shall be authorized, on customary terms, to execute the
underwriting agreement on behalf of each selling holder and to otherwise
act for the selling holders in connection with the offering.
(b) Such Holder directly through its Representative enters into an
underwriting agreement with the Company, the other selling holders, any
selling securityholders and the underwriters, which underwriting agreement
shall comply with the provisions of this Section 3.
(c) Such Holder executes all questionnaires and other documents
required by the underwriting agreement to be executed by such Holder.
3.9. LOCK-UP AGREEMENTS. (a) The Company agrees that it will not,
directly or indirectly, sell, offer to sell, grant any option for the sale of,
or otherwise dispose of, any debt securities of the Company, in the case of any
registration pursuant to Section 2.1, for a period of 90 days from the effective
date of any Registration Statement.
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<PAGE>
(b) Each Holder whose Notes and/or Debentures are covered by a
Registration Statement filed pursuant to Section 2.1 or 2.2 agrees that it will
not, directly or indirectly, sell, offer to sell, grant any option for the sale
of, or otherwise dispose of, any debt securities of the Company (except such
Notes and/or Debentures covered by such Registration Statement) for a period of
90 days from the effective date of any Registration Statement.
(c) The lock-up agreements set forth in Sections 3.9(a) and 3.9(b)
shall be subject to customary exceptions that may be contained in an
underwriting agreement if any such registration involves an underwritten
offering.
4. MISCELLANEOUS.
4.1. NO INCONSISTENT AGREEMENTS. The Company covenants and agrees
that it shall not grant registration rights with respect to Registrable
Securities or any other securities which would be inconsistent with the terms
contained in this Agreement. The Company is not currently a party to any
agreement with respect to any of its equity or debt securities granting any
registration rights to any person, other than the Warrant Agreement and the
Stock Appreciation Rights Agreement.
4.2. SPECIFIC PERFORMANCE. The parties hereto acknowledge that there
may be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Agreement
in accordance with the terms and conditions of this Agreement, in any court of
the United States or any State thereof having jurisdiction.
4.3. NOTICES. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by courier,
or three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at 1270 Avenue of the Americas, New York, New York 10020, Attention: Secretary;
if to GSMC, to it at 85 Broad Street, New York, New York 10004; if to Whitehall,
to it at 85 Broad Street, New York, New York 10004; and if to a Holder, to the
address of such Holder set forth in the security register or other records of
the Company, or to such other address as any party may
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<PAGE>
have furnished to the others in writing in accordance herewith, except that
notices of change of address shall be effective only upon receipt.
4.4. PARTIES IN INTEREST. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the parties hereto. In
the event that any transferee of any holder of Notes or Debentures shall acquire
Notes or Debentures, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any further
writing or action of any kind, be deemed a party hereto for all purposes and
such Notes or Debentures shall be held subject to all of the terms of this
Agreement, and by taking and holding such Notes or Debentures such transferee
shall be entitled to receive the benefits of and be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement. If the Company shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Notes or Debentures
subject to all of the terms hereof.
4.5. SURVIVAL. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this Agreement
or made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
any holder of Notes or Debentures, any director, officer or partner of such
holder, any agent or underwriter or any director, officer or partner thereof, or
any controlling person of any of the foregoing, and shall survive delivery of
and payment for the Notes and Debentures pursuant to the Loan Agreement and
Debenture Purchase Agreement and the transfer and registration of Notes or
Debentures by such holder.
4.6. LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4.7. HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
4.8. AMENDMENTS. This Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a written instrument
duly executed by the Company and the holders of
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<PAGE>
at least 75 percent in aggregate principal amount of the Notes or Debentures, as
the case may be, at the time outstanding. Each holder of any Notes or
Debentures, as the case may be, at the time or thereafter outstanding shall be
bound by any amendment or waiver effected pursuant to this Section 4.8, whether
or not any notice, writing or marking indicating such amendment or waiver
appears on such Notes or Debentures, as the case may be, or is delivered to such
holder.
4.9. INSPECTION. For so long as this Agreement shall be in effect,
this Agreement and a complete list of the names and addresses of all the holders
of Notes and Debentures shall be made available for inspection and copying on
any business day, on reasonable notice, by any holder of Notes or Debentures, as
the case may be, at the offices of the Company at the address thereof set forth
in Section 4.3.
4.10. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first written above.
ROCKEFELLER CENTER PROPERTIES, INC.
By:\s\ Richard M. Scarlata
-----------------------
Richard M. Scarlata
President
GOLDMAN SACHS MORTGAGE COMPANY
By: Goldman Sachs Real Estate
Funding Corp., General Partner
By:\s\ Steven T. Mnuchin
---------------------
Steven T. Mnuchin
President
WHITEHALL STREET REAL ESTATE LIMITED
PARTNERSHIP V
By: WH Advisors, L.P. V, General
Partner
By: WH Advisors, Inc. V,
General Partner
By:\s\ Ralph F. Rosenberg
----------------------
Ralph F. Rosenberg
Vice-President
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<PAGE>
Exhibit 4.12
As of December 29, 1994
Chemical Bank, agent
430 West 33rd Street
New York, N.Y. 10001
Ladies and Gentlemen:
We refer to the Warrant Agreement dated as of December 18, 1994 (the
"Warrant Agreement") between the undersigned (the "Company") and you. Unless
otherwise defined herein, the terms defined in the Warrant Agreement shall be
used herein as therein defined.
It is hereby agreed by you and us that the numerical reference to the
number of shares of common stock, par value $.01 per share, of the Company
for which the Warrants are exercisable in (i) the preamble to the Warrant
Agreement and (ii) Section 2.2 of the Warrant Agreement should be deleted and
replaced with "4,155,927".
You are hereby directed to exchange the Temporary Warrant Certificate
(No. 0001) issued in the name of Whitehall Street Real Estate Limited
Partnership V evidencing 4,156,927 Warrants, upon presentation thereof, for a
permanent Warrant Certificate(s) evidencing an aggregate of 4,155,927 Warrants.
On and after the effective date of this letter amendment, each reference
in the Warrant Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the Warrant Agreement", "thereunder", "thereof" or
words of like import referring to the Warrant Agreement, shall mean and be a
reference to the Warrant Agreement as amended by this letter amendment. The
Warrant Agreement, as amended by this letter amendment, is and shall continue
to be in full force and effect and is hereby in all respects ratified and
confirmed.
Your agreement to this letter amendment will be evidenced by the
execution hereof. This letter amendment is subject to the provisions of
of Section 12.10 of the Warrant Agreement.
This letter amendment may be executed in counterparts by the parties
hereto,
<PAGE>
2
each of which counterparts shall be an original and all of which
taken together shall constitute one and the same letter amendment.
Very truly yours,
ROCKEFELLER CENTER
PROPERTIES, INC.
By: /s/ Richard M. Scarlata
--------------------------
Title: President and Chief
Executive Officer
Agreed as of the date
first above written:
CHEMICAL BANK
By: /s/ Michael Nespoli
-------------------------------
Title: Vice President
Acknowledged as of the date
first above written:
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V
By: WH Advisors, L.P. V., General Partner
By: WH Advisors, Inc. V., General Partner
By: /s/ Ralph F. Rosenberg
-----------------------------
Title: Vice-President
<PAGE>
Exhibit 4.13
[Conformed Copy]
As of December 29, 1994
Chemical Bank, agent
430 West 33rd Street
New York, N.Y. 10001
Ladies and Gentlemen:
We refer to the SAR Agreement dated as of December 18, 1994 (the "SAR
Agreement") between the undersigned (the "Company") and you. Unless otherwise
defined herein, the terms defined in the SAR Agreement shall be used herein as
therein defined.
It is hereby agreed by you and us that the numerical reference to the
number of SARS to be issued under the SAR Agreement in (i) the preamble to the
SAR Agreement and (ii) Section 2.2 of the SAR Agreement should be deleted and
replaced with "5,349,541)".
You are hereby directed to exchange the Temporary Stock Appreciation
Rights Certificate (No. 0001) issued in the name of Whitehall Street Real
Estate Limited Partnership V evidencing 5,348,541 SARs, upon presentation
thereof, for a permanent Stock Appreciation Rights Certificate(s) evidencing
an aggregate of 5,349,541 Stock Appreciation Rights.
On and after the effective date of this letter amendment, each reference
in the SAR Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the SAR Agreement", "thereunder", "thereof" or words
of like import referring to the SAR Agreement, shall mean and be a reference
to the SAR Agreement as amended by this letter amendment. The SAR Agreement,
as amended by this letter amendment, is and shall continue to be in full
force and effect and is hereby in all respects ratified and confirmed.
Your agreement to this letter amendment will be evidenced by the
execution hereof. This letter amendment is subject to the provisions of
of Section 11.10 of the SAR Agreement.
<PAGE>
2
This letter amendment may be executed in counterparts by the parties
hereto, each of which counterparts shall be an original and all of which
taken together shall constitute one and the same letter amendment.
Very truly yours,
ROCKEFELLER CENTER
PROPERTIES, INC.
By: /s/ Richard M. Scarlata
--------------------------
Title: President and Chief
Executive Officer
Agreed as of the date
first above written:
CHEMICAL BANK
By: /s/ Michael Nespoli
-------------------------------
Title: Vice President
Acknowledged as of the date
first above written:
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V
By: WH Advisors, L.P. V, General Partner
By: WH Advisors, Inc. V., General Partner
By: /s/ Ralph F. Rosenberg
-----------------------------
Title: Vice-President
<PAGE>
EXHIBIT 10.35
[CONFORMED COPY]
LOAN AGREEMENT
among
ROCKEFELLER CENTER PROPERTIES, INC.,
THE LENDERS PARTIES HERETO
and
GOLDMAN SACHS MORTGAGE COMPANY, as Agent
dated as of
December 18, 1994
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.................... 1
1.01 Definitions......................................... 1
1.02 Computation of Time Periods......................... 11
1.03 Accounting Terms.................................... 11
SECTION 2 THE LOAN............................................ 11
2.01 The Loan............................................ 11
2.02 Maturity............................................ 12
(a) Maturity Date................................. 12
(b) Payment....................................... 12
2.03 Interest............................................ 12
2.04 The Notes........................................... 12
2.05 Prepayments......................................... 12
(a) Voluntary Prepayments......................... 12
(b) Mandatory Prepayments......................... 13
2.06 Payments and Computations........................... 13
2.07 Taxes; Regulatory Change............................ 14
(a) Taxes.......................................... 14
(b) Regulatory Change.............................. 16
2.08 Unavailability...................................... 16
2.09 Break Funding Costs................................. 17
2.10 Mitigation.......................................... 17
2.11 Pro Rata Treatment.................................. 17
2.12 Sharing of Payments................................. 17
SECTION 3 CONDITIONS PRECEDENT................................ 18
3.01 Disbursement of Loan................................ 18
(a) Executed Loan Documents....................... 18
(b) Procedures Regarding Collateral............... 18
(c) No Default; Representations and
Warranties.................................. 19
(d) Opinion of Counsel............................ 19
(e) Corporate Documents........................... 19
(f) Related Transactions.......................... 19
(g) Fee and Expenses.............................. 20
(h) Other Documents................................ 20
(i) Loan Agreement Default......................... 20
(j) Market Conditions............................. 20
(k) Consent to Assignment......................... 20
(l) Business Combination.......................... 20
3.02 Obligation of Borrower to Close..................... 21
SECTION 4 REPRESENTATIONS AND WARRANTIES OF
BORROWER............................................ 21
4.01 Existence, Power and Ownership...................... 21
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Page
----
4.02 Authorization....................................... 21
4.03 No Violations or Conflicts ......................... 21
4.04 Consents............................................ 22
4.05 Enforceable Obligations............................. 22
4.06 Financial Condition; Securities and
Exchange Commission Filings................... 22
4.07 No Default.......................................... 23
4.08 Liens............................................... 23
4.09 Indebtedness........................................ 23
4.10 Litigation.......................................... 23
4.11 Material Agreements................................. 23
4.12 Taxes............................................... 23
4.13 Compliance with Law................................. 24
4.14 ERISA............................................... 24
4.15 Subsidiaries........................................ 24
4.16 Use of Proceeds; Margin Stock....................... 24
4.17 Government Regulation............................... 25
4.18 Pari Passu Obligations.............................. 25
4.19 Ownership of Real Estate............................ 25
4.20 No Pending Condemnation or Eminent Domain........... 26
4.21 Capitalization...................................... 26
SECTION 5 AFFIRMATIVE COVENANTS OF THE BORROWER............... 26
5.01 Information Covenants............................... 26
(a) Annual Financial Statements................... 26
(b) Auditor's Certificate......................... 27
(c) Quarterly Financial Statements................ 27
(d) Officer's Certificate......................... 27
(e) Auditor's Reports............................. 27
(f) Real Estate and Other Information............. 28
(g) Other Information............................. 28
(h) Notice of Default or Litigation............... 28
(i) Changes to Indebtedness....................... 29
5.02 Preservation of Existence
and Franchises................................ 29
5.03 Books, Records and Inspections...................... 29
5.04 Compliance with Law................................. 29
5.05 Insurance........................................... 29
5.06 Maintenance of Property............................. 30
5.07 Plan Assets......................................... 30
5.08 Intercreditor Agreement............................. 30
5.09 Resale of Loan...................................... 30
SECTION 6 NEGATIVE COVENANTS.................................. 31
6.01 Indebtedness........................................ 32
6.02 Liens............................................... 32
6.03 Nature of Business.................................. 32
6.04 Consolidation, Merger, Sale or Purchase
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Page
----
of Assets......................................... 33
6.05 Advances, Investments and Loans..................... 33
6.06 Transactions with Affiliates........................ 33
6.07 Operating Lease Obligations......................... 33
6.08 Sale and Leaseback.................................. 34
6.09 Governing Documents................................. 34
6.10 ERISA............................................... 34
6.11 Dividends........................................... 34
6.12 Modifications to Mortgage........................... 34
6.13 Mortgage Conversion................................. 35
6.14 Coverage Test....................................... 35
6.15 Modification or Prepayment of
Indebtedness...................................... 35
SECTION 7 EVENTS OF DEFAULT................................... 35
7.01 Events of Default................................... 35
(a) Payment....................................... 35
(b) Representations............................... 36
(c) Covenants..................................... 36
(d) Other Agreements.............................. 36
(e) Bankruptcy, etc............................... 36
(f) Defaults under Other Agreements............... 37
(g) Judgments..................................... 37
7.02 Remedies............................................ 38
SECTION 8 THE AGENT AND THE LENDERS........................... 38
8.01 The Agency.......................................... 38
8.02 The Agent's Duties.................................. 39
8.03 The Agent's Liabilities............................. 39
8.04 The Agent as a Lender............................... 40
8.05 Lender Credit Decision.............................. 40
8.06 Indemnification..................................... 40
8.07 Successor Agent..................................... 41
SECTION 9 MISCELLANEOUS....................................... 42
9.01 Notices............................................. 42
9.02 Benefit of Agreement; Assignments and
Participations................................ 42
9.03 No Waiver; Remedies Cumulative...................... 44
9.04 Payment of Expenses; Indemnification................ 44
9.05 Amendments, Waivers and Consents.................... 47
9.06 Counterparts........................................ 47
9.07 Headings............................................ 47
9.08 Survival of Indemnities............................. 47
9.09 Governing Law; Submission to Jurisdiction;
Venue............................................. 48
9.10 Severability........................................ 48
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Page
----
9.11 Entirety............................................ 48
9.12 Survival of Representations and
Warranties........................................ 48
Schedules
- ---------
Schedule 3.01 - Fees
Schedule 4.09 - Indebtedness
Schedule 4.10 - Litigation
Schedule 4.11 - Material Agreements
Schedule 5.05 - Insurance
Exhibits
- --------
Exhibit A - Form of Floating Rate Promissory Note
Exhibit B - Form of Officer's Certificate
Exhibit C - Form of Assignment of Mortgage
Exhibit D - Form of Collateral Trust Agreement
Exhibit E - Form of Letter Agreement
Exhibit F - Form of Registration Rights Agreement
-iv-
<PAGE>
LOAN AGREEMENT
LOAN AGREEMENT, dated as of December 18, 1994 (the "Loan
Agreement"), among Rockefeller Center Properties, Inc., a Delaware corporation
(the "Borrower"), the lenders identified on the signature pages hereto (each, a
"Lender" and, collectively, the "Lenders") and Goldman Sachs Mortgage Company, a
New York limited partnership, as Agent for the Lenders (the "Agent").
RECITALS
WHEREAS, the Borrower has requested that the Lenders make loans to
it in the aggregate principal amount of $150,000,000, the proceeds of such loans
to be used by the Borrower to retire its outstanding commercial paper, to pay
fees and expenses in connection with this Loan Agreement and to satisfy the
interest rate swap agreements specified in Schedule 4.09; and
WHEREAS, the Lenders have agreed to make the requested loans to the
Borrower on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.01. DEFINITIONS. As used herein, the following terms shall
have the meanings specified herein unless the context otherwise requires.
Defined terms herein shall include in the singular number the plural and in the
plural the singular:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all partners,
directors and officers of such Person), controlled by or under direct or
indirect common control with such Person. A Person shall be deemed to control a
corporation or a partnership if such Person possesses, directly or indirectly,
the power (i) to vote 10% or more of the securities having ordinary voting power
for the election of directors of such corporation or to vote 10% or more of the
partnership interests of such partnership or (ii) to direct or cause direction
of the management and policies of such corporation or partnership, whether
through the ownership of voting securities, as managing or general partner, by
contract or otherwise.
<PAGE>
"ASSIGNMENT OF MORTGAGE" means the Assignment of Mortgage in the
form of Exhibit C hereto from the Borrower to the Collateral Agent providing for
an assignment of the Mortgage as security for the Loan, the 14% Debentures and
the Indenture Securities.
"BASE RATE" means the average of the rates of interest per annum
publicly announced by each of Citibank, N.A., Chemical Bank and Chase Manhattan
Bank, N.A. from time to time as its prime or reference rate, the Base Rate to
change as and when the base rate of any such bank shall change.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, a
legal holiday in New York, New York or a day on which banking institutions in
New York, New York are authorized by law or other governmental action to close;
PROVIDED, HOWEVER, if the day in question relates to the determination of
the LIBO Rate, an Interest Period or an Interest Payment Date, a "Business Day"
means a day upon which banks are open for the transaction of business in London,
England and New York, New York and dealings in U.S. dollar deposits are also
carried on in the London interbank market.
"CASH EQUIVALENTS" means (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) U.S. dollar denominated time
deposits and certificates of deposit of a bank (an "Approved Bank") that is
either (x) any domestic commercial bank of recognized standing having capital
and surplus in excess of $500,000,000 or (y) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Moody's is at least P-1 or the equivalent thereof, in each case with
maturities of not more than six months from the date of acquisition, (iii)
commercial paper and variable or fixed rate notes issued by any Approved Bank
(or by the parent company thereof) or any variable rate notes issued or
guaranteed by any Approved Bank rated at least A-1 (or the equivalent thereof)
by S&P or at least P-1 (or the equivalent thereof) by Moody's and maturing
within six months of the date of acquisition, (iv) repurchase agreements with a
bank or trust company or recognized securities dealer having capital and surplus
in excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States of America in which the
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Borrower shall have a perfected first priority security interest (subject to no
other Liens) and having, on the date of purchase thereof, a fair market value of
at least 100% of the amount of the repurchase obligations, and (v) publicly
traded short-term notes, bonds and other obligations having short-term unsecured
debt ratings of at least A-1 (or the equivalent thereof) by S&P or at least P-1
(or the equivalent thereof) by Moody's.
"CLOSING DATE" has the meaning specified in Section 2.01 hereof.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL AGENT" means the Trustee under the Collateral Trust
Agreement.
"COLLATERAL TRUST AGREEMENT" means the Collateral Trust Agreement
in the form of Exhibit D hereto among the Collateral Agent, the Agent,
Whitehall, the Borrower and the Trustee providing for a pledge of the Mortgage
Note and other collateral as security for the Loans, the 14% Debentures and the
Indenture Securities.
"COMMON STOCK" means common shares, par value $.01, of the
Borrower.
"CONSISTENT BASIS" or "CONSISTENT BASIS" means, with regard to
the application of accounting principles, accounting principles consistent in
all material respects with the accounting principles used and applied in
preparation of the financial statements previously delivered to the Lenders and
referred to in Section 4.06.
"DEBENTURE PURCHASE AGREEMENT" means the Debenture Purchase
Agreement dated the date hereof between the Borrower and Whitehall.
"DEFAULT" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated thereunder.
"ERISA AFFILIATE" means each person (as defined in Section 3(9) of
ERISA) which together with the Borrower would be deemed to be a member of the
same "controlled
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group" within the meaning of Section 414(b), (c), (m) or (o) of the Code.
"EVENT OF DEFAULT" has the meaning specified in Section 7.01
hereof.
"FIXED AMORTIZATION AMOUNT" has the meaning specified in Section
2.05(b).
"14% DEBENTURES" means the Borrower's 14% Debentures issued
pursuant to the Debenture Purchase Agreement.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES" means generally accepted accounting principles in the
United States in effect as of the date of this Loan Agreement.
"GUARANTY OBLIGATIONS" means any obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) guaranteeing any Indebtedness, leases, dividends or other
obligations of any other Person in any manner, whether direct or indirect, and
including, without limitation, any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or other obligation or any property constituting
security therefor, (ii) to advance or provide funds or other support for the
payment or purchase of such Indebtedness or obligation or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance agreements,
comfort letters or similar agreements or arrangements), (iii) to lease or
purchase property, securities or services primarily for the purpose of assuring
the owner of such Indebtedness or obligation, or (iv) to otherwise assure or
hold harmless the owner of such Indebtedness or obligation against loss in
respect thereof.
"INDEBTEDNESS" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money, (ii) the
deferred purchase price of assets which in accordance with generally accepted
accounting principles would be shown to be a liability (or on the liability side
of a balance sheet) of such Person, (iii) all Guaranty Obligations of such
Person, (iv) the maximum amount of all letters of credit issued or acceptance
facilities established for the account of such Person and, without duplication,
all drafts drawn thereunder (other than letters of credit (x) supporting other
Indebtedness of such Person, or (y) offset by a like amount of cash or
government securities held in escrow to secure such letter of credit
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and draws thereunder), (v) all capitalized lease obligations of such Person,
(vi) all indebtedness of another Person secured by any lien on any property of
such Person, whether or not such indebtedness has been assumed, (vii) all
obligations under take-or-pay or similar arrangements or under interest rate
swap, currency swap, or commodities agreements of such Person, (viii)
indebtedness created or arising under any conditional sale or title retention
agreement of such Person, (ix) obligations of such Person with respect to
withdrawal liability or insufficiency in excess of $5,000,000 (calculated on an
accumulated benefit obligation basis) under ERISA or under any qualified plan or
related trust and (x) all other obligations which in accordance with generally
accepted accounting principles would be shown to be a liability (or on the
liability side of a balance sheet) of such Person; PROVIDED, HOWEVER, that
Indebtedness shall not include trade payables and accrued expenses arising or
incurred in the ordinary course of business.
"INDENTURE SECURITIES" means the securities of the Borrower issued
pursuant to the 1985 Indenture.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement dated
as of the date hereof among the Agent, the Lenders, Whitehall and the Borrower.
"INTEREST PAYMENT DATE" means the last day of each Interest
Period.
"INTEREST PERIOD" means (a) with respect to the initial Interest
Period, the period beginning on the Closing Date and ending on the first day of
the next succeeding March, June, September or December, as the case may be, and
(b) with respect to each succeeding Interest Period, the three-month period
beginning on the day after the end of the preceding Interest Period; PROVIDED,
HOWEVER, (A) if any Interest Period would end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next succeeding
calendar month, then the Interest Period shall end on the next preceding
Business Day), (B) no Interest Period shall extend beyond the Maturity Date and
(C) where an Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is to end,
such Interest Period shall end on the last Business Day of such calendar month.
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"LENDER" has the meaning given to such term in the first paragraph
of this Loan Agreement.
"LETTER AGREEMENT" means the letter agreement in the form of
Exhibit E hereto regarding the assignment by the Borrower of its title insurance
benefits to the Collateral Agent.
"LIBO RATE" means, with respect to each Interest Period, a rate of
interest per annum equal to either (i) the rate per annum for U.S. dollar
deposits in the London interbank Eurodollar market appearing on Telerate Page
3750 as of 11:00 a.m. New York City time on the day that is two Business Days
before the first day of the applicable Interest Period or (ii) if the rate
referred to in the preceding subparagraph (i) is not available or cannot be
determined, the rate per annum as determined by the Agent to be the rate per
annum then being paid by first-class banking organizations in the London
interbank Eurodollar market at 11:00 a.m. (New York City time) on the day that
is two Business Days before the first day of the applicable Interest Period, in
each case in an amount substantially equal to the then aggregate outstanding
balance of the Loans and for a period equal to three months.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice perfecting a security
interest under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction, or other similar recording or notice statute, and any
lease in the nature thereof).
"LOAN" and "LOANS" shall have the meanings given to such terms
in Section 2.01 hereof.
"LOAN DOCUMENTS" means this Loan Agreement, the Note, the
Assignment of Mortgage, the Collateral Trust Agreement, the Intercreditor
Agreement, the Registration Rights Agreement, the Letter Agreement, the
Debenture Purchase Agreement, the 14% Debentures, the Security Documents, the
Stock Appreciation Rights Agreement, the Stock Appreciation Rights, the Warrant
Agreement and the Warrants.
"MATURITY DATE" shall have the meaning given to such term in
Section 2.02(a) hereof.
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"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGE" means, collectively, the Mortgage and Security
Agreement, dated as of September 19, 1985, by RCPA and RCP to the Borrower, the
Consolidation, Extension, Modification and Spreader Agreement, dated as of
September 19, 1985, among RCPA, RCP and the Borrower, recorded with and
certified by the City Register of the City of New York, and the Assignment of
Rents, dated as of September 19, 1985, by RCPA and RCP to the Borrower, recorded
with and certified by the City Register of the City of New York, each as amended
from time to time.
"MORTGAGE NOTE" means, collectively, the Mortgage Note, dated as
of September 19, 1985, in the amount of $1,255,160,004, in favor of the Borrower
and the Consolidated Mortgage Note, dated as of September 19, 1985, in the
amount of $44,839,996, each as amended from time to time.
"NET CASH FLOW" means, for the period in question and based on a
cash basis of accounting (as modified to deduct accruals for any taxes and
insurance), (i) gross receipts and/or income related to the Mortgage Note and
Real Estate (including all rents, tax escrows, insurance proceeds, condemnation
proceeds, and any other receipts or payments actually received by or on behalf
of the Borrower under or in connection with the Real Estate or the Mortgage Note
except tax escrows and condemnation and insurance proceeds legally or
contractually required to be paid over to another Person by the Borrower whether
or not within the period in question) and receipts from any other source,
including the net proceeds of any sale of equity by the Borrower, minus (ii) the
sum of (x) those actual operating, renting, administrative, legal and other
ordinary expenses incurred by the Borrower, (y) interest paid or (without
duplication) accrued (on a straight line basis) with respect to the Loan, the
14% Debentures, the Indenture Securities and any other Indebtedness permitted by
Section 6.01, and (z) dividends paid to holders of Common Stock or (without
duplication) accrued (on a straight line basis) and distributions, if any, paid
or (without duplication) accrued (on a straight line basis) to holders of the
Warrants or the Stock Appreciation Rights as permitted by Section 6.11;
PROVIDED, HOWEVER, for purposes of this calculation, expenses specified in
clause (x) shall not include (except for the accruals described in the first
parenthetical of this definition) any non-cash charges of the Borrower,
including, without limitation, any depreciation or amortization; and,
PROVIDED, FURTHER, that amounts accrued in respect of interest, dividends or
distributions as specified
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in clauses (y) and (z) above may not be used for any purpose other than such
interest payments, dividends or distributions, and, if not so used, such amounts
shall be included in the calculation of Net Cash Flow hereunder.
"1985 INDENTURE" means the Indenture, dated as of September 15,
1985 from the Borrower to United States Trust Company (as successor to
Manufacturers Hanover Trust Company), as Trustee, as amended by the First
Supplemental Indenture dated as of December 15, 1985, as further amended from
time to time.
"1985 LOAN AGREEMENT" means the Loan Agreement dated as of
September 19, 1985 among the Borrower, RCPA and RCP, as amended from time to
time.
"NOTES" means, collectively, the floating rate promissory notes of
the Borrower in favor of each of the Lenders evidencing the Loans and provided
in accordance with Section 2.04 hereof, as such promissory notes may be amended,
modified, supplemented or replaced from time to time.
"PERMITTED INVESTMENTS" means cash and Cash Equivalents.
"PERMITTED LIENS" means (i) Liens created by the Collateral Trust
Agreement, the Security Documents, the Assignment of Mortgage and the Letter
Agreement or otherwise created by, under or in connection with this Loan
Agreement or the other Loan Documents in favor of the Collateral Agent; (ii)
Liens for taxes not yet due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves have been established (and
as to which the property subject to such Lien is not yet subject to foreclosure,
sale or loss on account thereof); (iii) Liens in respect of property imposed by
law arising in the ordinary conduct of business such as materialmen's,
mechanics', warehousemen's and other like Liens; provided that such Liens secure
only amounts not yet due and payable or amounts being contested in good faith by
appropriate proceedings for which adequate reserves have been established (and
as to which the property subject to such lien is not yet subject to foreclosure,
sale or loss on account thereof); (iv) pledges or deposits made to secure
payment under worker's compensation insurance, unemployment insurance, pensions,
social security programs, public liability laws or similar legislation; (v)
Liens arising from good faith deposits in connection with or to secure
performance of tenders, statutory obligations, surety and
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appeal bonds, bids, leases, contracts, performance and return-of-money bonds and
other similar obligations incurred in the ordinary course of business (other
than obligations in respect of the payment of borrowed money); (vi) easements,
rights-of-way, restrictions (including zoning restrictions), defects or
irregularities in title and other similar charges or encumbrances not, in any
material respect, interfering with the ordinary course of business of the
Borrower; (vii) leases or subleases granted to others, whether existing now or
hereafter entered into, in the ordinary conduct of business, not in any material
respect, interfering with the ordinary conduct of business of the Borrower; and
(viii) any attachment or judgment lien, unless the judgment it secures shall
not, within 30 days after the entry thereof, have been discharged or execution
thereof stayed pending appeal, or shall not have been discharged within 30 days
after the expiration of any such stay.
"PERSON" means any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise (whether or not
incorporated), or any government or political subdivision or any agency,
department or instrumentality thereof.
"PLAN" means any multiemployer or tax-qualified single-employer
plan as defined in Section 4001 of ERISA.
"PLAN ASSETS" means such term within the meaning and as defined in
the Department of Labor Regulation 29 CFR Section 2510.3-101, as amended, and
the advisory opinions or other administrative interpretations thereunder.
"PURCHASE OPTION" means the Purchase Option, dated as of September
19, 1985, among RCPA, RCP and the Borrower.
"RCP" means Rockefeller Center Properties, a New York general
partnership.
"RCPA" means RCP Associates, a New York limited partnership.
"REAL ESTATE" means the real property identified in Exhibit A to
the Mortgage and Security Agreement, dated as of September 19, 1985, by RCPA and
RCP to the Borrower, but excluding any Development Rights (as defined therein)
available to the land identified in Exhibit A and Exhibit C thereto and the area
identified in Exhibit B thereto.
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"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement in the form of Exhibit F hereto among the Borrower, the Agent and
Whitehall.
"REGULATION G, T, U OR X" means, respectively, Regulation G, T, U
and X of the Board of Governors of the Federal Reserve System as from time to
time in effect and any successor to all or a portion thereof.
"REQUIRED LENDERS" means Lenders holding more than 50% of the
aggregate outstanding principal amount of the Loans.
"RGI PLAN" shall have the meaning given to such term in Section
4.14 hereof.
"S&P" means Standard & Poor's Corporation.
"SAR AGENT" means the SAR Agent under the Stock Appreciation
Rights Agreement.
"SECURITY DOCUMENTS" means the Assignment of Mortgage and the
letters of credit delivered in accordance with the Collateral Trust Agreement.
"STOCK APPRECIATION RIGHTS" means the stock appreciation rights
issued pursuant to the Stock Appreciation Rights Agreement.
"STOCK APPRECIATION RIGHTS AGREEMENT" means the Stock Appreciation
Rights Agreement dated the date hereof between the Borrower and the SAR Agent.
"SUBSIDIARY" of any Person means, with respect to such Person, (i)
any corporation more than 25% of whose stock of any class or classes having by
the terms thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries, and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries has more than 25% equity interest at any time.
"TRUSTEE" means United States Trust Company, as Trustee, under the
1985 Indenture, or any successor trustee thereto.
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"WARRANT AGENT" means the Warrant Agent under the Warrant
Agreement.
"WARRANT AGREEMENT" means the Warrant Agreement dated the date
hereof between the Borrower and the Warrant Agent.
"WARRANTS" means the warrants for the purchase of shares of Common
Stock issued pursuant to the Warrant Agreement.
"WHITEHALL" means Whitehall Street Real Estate Limited Partnership
V, a Delaware limited partnership.
1.02. COMPUTATION OF TIME PERIODS. For purposes of computation
of periods of time hereunder, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding."
1.03. ACCOUNTING TERMS. Accounting terms used but not otherwise
defined herein shall have the meanings provided, and be construed in accordance
with, generally accepted accounting principles.
SECTION 2
THE LOAN
2.01. THE LOAN. Subject to the terms and conditions set forth
herein, each Lender agrees to make a term loan (each a "Loan", and collectively,
the "Loans") to the Borrower on the Closing Date (as defined below) in a
principal amount equal to its loan commitment as set forth on the signature
pages hereto, the aggregate principal amount of the Loans to be equal to
$150,000,000. Each Lender will make available to the Agent no later than 12:00
noon, New York time, on the Closing Date, the amount of its Loan in immediately
available funds at the office of the Agent specified in Section 8.01. Upon
receipt by the Agent of all such funds and upon satisfaction of the conditions
set forth in Section 3.01, the Agent shall disburse the Loans to the Borrower by
making a wire transfer in the aggregate principal amount of the Loans to the
account designated by the Borrower. Subject to the provisions of Sections 3.01
and 3.02, the date of the making of the Loans (the "Closing Date") shall occur
as soon as practicable but in no event more than 5 Business Days following
satisfaction of the condition specified in Section 3.01(k); PROVIDED, that the
Closing Date shall not occur later than the close
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of business on March 31, 1995 unless the parties hereto otherwise agree.
2.02. MATURITY.
(a) MATURITY DATE. The Loans shall be due and payable on
December 31, 2000 (the "Maturity Date").
(b) PAYMENT. The Borrower agrees to pay the outstanding
principal amount of the Loans, together with all accrued but unpaid interest
thereon and all other amounts owing from the Borrower to the Lenders, on the
Maturity Date.
2.03. INTEREST. The outstanding principal balance of the Loans
from time to time shall bear interest at a rate per annum equal to the LIBO Rate
plus 4%, or, in the event the interest rate conversion provided by Section 2.08
is elected by the Agent, the Base Rate plus 3%, from the Closing Date through
and including the Maturity Date. The interest rate shall be set two Business
Days prior to the Closing Date and two Business Days prior to the first day of
each Interest Period thereafter. Notwithstanding the foregoing, upon the
occurrence and during the continuance of an Event of Default, the principal of
and, to the extent permitted by law, interest on the Loans shall bear interest,
payable on demand, at a rate equal to 4% per annum in excess of the rate
otherwise applicable hereunder. Except as otherwise provided herein, accrued
interest shall be payable in arrears on each Interest Payment Date.
2.04. THE NOTES. The Loans shall be evidenced by duly executed
floating rate promissory notes of the Borrower, one such Note for each Lender in
the principal amount of each such Lender's Loan, substantially in the form of
Exhibit A attached hereto.
2.05. PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS. The Borrower shall have the right to
prepay the Loans at any time in whole or in part upon 30 days advance written
notice to the Agent; PROVIDED, HOWEVER, such prepayments may be made only on
the last day of an Interest Period (unless the Borrower pays the breakage costs
provided for in Section 2.10 hereof). Voluntary prepayments made during the
period from the Closing Date through the first anniversary thereof shall be made
at 103% of the principal amount prepaid; voluntary prepayments made during the
period from the day after the first anniversary of the Closing Date through the
second anniver-
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sary of the Closing Date shall be made at 101.5% of the principal amount
prepaid; and voluntary prepayments made thereafter shall be made at 100% of the
principal amount prepaid, in each case with interest accrued to the date of
prepayment. Voluntary prepayments of the Loans shall be applied first to
accrued but unpaid interest and then to the principal balance of the Loans.
Amounts prepaid hereunder may not be reborrowed.
(b) MANDATORY PREPAYMENTS. On each Interest Payment Date
commencing June 1, 1995 through the Maturity Date the Borrower shall prepay the
Loans in an amount equal to Net Cash Flow calculated as of the last day of the
most recent fiscal quarter; PROVIDED, HOWEVER, that for each fiscal year
through 1999, the prepayment to be made by the Borrower on the last Interest
Payment Date in each such fiscal year shall be in an amount equal to the greater
of (i) the amount payable hereunder pursuant to the preceding clause and (ii)
the Fixed Amortization Amount minus the aggregate amount of prepayments
previously made pursuant to this Section 2.05(b) during such fiscal year.
"Fixed Amortization Amount" means, for 1995, $3,000,000, for 1996, $9,000,000,
for 1997, $10,000,000, for 1998, $12,000,000 and, for 1999, $15,000,000.
Amounts so prepaid may not be reborrowed.
2.06. PAYMENTS AND COMPUTATIONS. All payments hereunder shall be
made to the Agent, for the benefit of the Lenders, in U.S. dollars in
immediately available funds to the account of the Agent as notified to the
Borrower not later than 2:00 p.m. (New York City time) on the date when due.
Payments received after such time shall be deemed to have been received on the
next succeeding Business Day. Subject to the definition of Interest Period,
whenever any payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day (subject to accrual of interest and fees for the period of such
extension). All computations of interest and fees shall be made on the basis of
actual number of days elapsed over a year of 360 days. Interest shall accrue
from and include the date of the Loans, but exclude the date on which the Loans
are repaid. All payments received from the Borrower hereunder shall be applied
in the following order: FIRST, to the payment of any costs and expenses and
other amounts due pursuant to Section 9.04; SECOND, to the payment of any
amount due under this Loan Agreement other than any amount referred to in this
sentence; THIRD, to the ratable payment of interest due on the Notes;
FOURTH, to the ratable payment of principal and premium, if any, due on the
Notes.
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2.07. TAXES; REGULATORY CHANGE. (a) TAXES. (i) To the extent
permitted by law, all payments under this Loan Agreement and under the Notes
(including payments of principal and interest) shall be payable to each Lender
free and clear of any and all present and future taxes, levies, imposts, duties,
deductions, withholdings, fees, liabilities and similar charges (collectively,
the "Taxes"); PROVIDED, that "Taxes" shall not include taxes imposed on or
measured by the overall net income of each Lender by the United States of
America or any political subdivision or taxing authority thereof or therein, or
taxes on or measured by the net income of any foreign office, branch or
subsidiary of such Lender by any foreign country or subdivision thereof in which
such office, branch or subsidiary is doing business or is organized or
considered to be resident. If any Taxes are required to be withheld or deducted
from any amount payable under this Loan Agreement or any Note, then the amount
payable under this Loan Agreement or such Note shall be increased to the amount
which, after deduction from such increased amount of all Taxes required to be
withheld or deducted therefrom, will yield to such Lender the amount stated to
be payable under this Loan Agreement or such Note. The Borrower shall execute
and deliver to any Lender upon its request such further instruments as may be
necessary or desirable to give full force and effect to any such increase. The
Borrower shall also hold each Lender harmless and indemnify it for any stamp or
other similar taxes with respect to the preparation, execution, delivery,
recording or enforcement of the Loan Documents (all of which shall be included
within "Taxes"). If any of the Taxes specified in this Section 2.07(a) are paid
by any Lender, the Borrower shall, upon demand of such Lender, promptly
reimburse such Lender for such payments, together with any interest, penalties
and expenses incurred in connection therewith. The Borrower shall deliver to
the Agent certificates or other valid vouchers for all Taxes or other changes
deducted from or paid with respect to payments made by the Borrower hereunder.
(ii) If any Lender or the Agent receives an official notice of
refund in respect of any Taxes as to which it has been indemnified by the
Borrower pursuant to this Section 2.07, it shall promptly notify the Borrower of
the availability of such refund and apply for such refund at the Borrower's
expense. If any Lender or the Agent receives a refund in respect of any Taxes
as to which it has been indemnified by the Borrower, it shall promptly pay such
refund (including interest and penalties, if any) to the Borrower, net of
reasonable out-of-pocket expenses of such Lender or the Agent.
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(iii) Each Lender organized under the laws of a jurisdiction outside
the United States (a "Non-U.S. Lender"), on or prior to the date of its
execution and delivery of this Loan Agreement in the case of each original
Lender or on the date of the assignment and acceptance pursuant to which it
becomes a Lender in the case of each other Lender (in each such case, the
"Initial Date"), and from time to time thereafter as appropriate (but only so
long as such Lender remains lawfully able to do so), shall provide each of the
Borrower and the Agent two true and complete copies of Internal Revenue Service
Form 1001 or 4224 or (in the case of a Lender that has delivered to the Borrower
and the Agent a duly executed certificate described below) Form W-8, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Non-U.S. Lender is exempt from United States
withholding tax on all payments pursuant to this Loan Agreement or the Notes or,
in the case of a Lender providing a Form W-8, certifying that the Lender is a
foreign corporation, partnership, estate or trust. If such Non-U.S. Lender
delivers a Form W-8, it shall thereafter deliver a certificate representing that
such Non-U.S. Lender is not a "bank" for the purposes of Section 881(c) of the
Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code). A Non-U.S. Lender shall not be entitled to indemnification under the
Loan Documents in respect of United States withholding tax to the extent that
the obligation to withhold amounts with respect to such tax is imposed under the
law (including for purposes of this subparagraph (iii), without limitation,
statutes, regulations, and proposed regulations) in existence on the Initial
Date or, with respect to payments to a new lending office, the date such
Non-U.S. Lender designated such new lending office with respect to a Loan.
Nothing in the preceding sentence shall release the Borrower from its obligation
to indemnify a Lender other than an original Lender in respect of United States
withholding taxes to the extent that those taxes are imposed as a result of a
change after the date hereof in the portfolio interest exemption. Further, for
any period with respect to which a Non-U.S. Lender has failed to provide the
Borrower with the appropriate form and, if applicable, certificate described in
this subsection (other than if the Lender is legally unable to provide such form
or certificate due to a change in law occurring subsequent to the date on which
a form originally was required to be provided, or if such form or certificate
otherwise is not required under the first sentence of this subsection (iii),
such Lender shall not be
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entitled to indemnification under the Loan Documents with respect to withholding
taxes imposed by the United States.
(b) REGULATORY CHANGE. If, as a result of any change in law or
regulation or in the interpretation thereof by any court or governmental or
administrative authority or the enactment of any law or regulation, (a) any
reserve, special deposit, capital adequacy or similar requirements (other than
such requirements as are taken into account in determining the LIBO Rate)
relating to any extensions of credit or other assets of, or any deposits with or
other liabilities of any Lender is imposed, modified or deemed applicable; or
(b) any other condition affecting a Loan subject to the LIBO Rate (other than in
respect of taxes covered by Section 2.07(a)or expressly excluded from the
definition of Taxes as specified in Section 2.07(a)) is imposed on any Lender
and such Lender reasonably determines that, by reason thereof, the cost to such
Lender of making or maintaining its Loan is increased, or any amount receivable
by such Lender hereunder in respect of any portion of its Loan is reduced, in
each case by an amount deemed by such Lender to be material (such increases in
cost and reductions in amounts receivable being herein called "Increased
Costs"), then the Borrower agrees that it will pay to such Lender upon its
request such additional amount or amounts as will compensate such Lender for
such Increased Costs to the extent such Lender reasonably determines that such
Increased Costs are allocable to its Loan. Each Lender will notify the Borrower
of any event occurring after the date hereof which will entitle such Lender to
compensation pursuant to this Section 2.07 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation.
Notwithstanding the foregoing, in no event shall the Borrower be required to
compensate any Lender for any portion of its income or franchise taxes, whether
or not attributable to payments made by such Lender. If any Lender requests
compensation under this Section 2.07, the Borrower may, by notice to such
Lender, require that such Lender furnish to the Borrower a statement setting
forth the basis for requesting such compensation and the method for determining
the amount thereof.
2.08. UNAVAILABILITY. Without limiting the effect of Section
2.07, in the event that, (a) the Agent shall have determined in good faith after
reasonable investigation that dollar deposits in the principal amount of the
Loans are not generally available in the London interbank market, or (b)
reasonable means do not exist for ascertaining the LIBO Rate, then, if the Agent
so elects, by notice to the Borrower, the interest rate applicable to the
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then outstanding principal balance of the Loans shall be converted to a rate
equal to the then Base Rate as in effect from time to time plus 3%. If the
Agent elects to convert the interest rate applicable to the Loans to the Base
Rate plus 3% pursuant to the terms of this Section 2.08 the Borrower may, by
notice to the Agent, require that the Agent furnish to the Borrower a statement
setting forth the basis for such election.
2.09. BREAK FUNDING COSTS. The Borrower agrees that it will
reimburse each Lender on demand for any loss incurred or to be incurred by such
Lender in the reemployment of the funds released by any prepayment of any
principal balance of the Loans if such prepayment occurs other than on the last
day of an Interest Period. Such loss shall be the difference as reasonably
determined by such Lender between the amount that would have been realized by
such Lender for the remainder of such Interest Period based on the LIBO Rate
applicable for such Interest Period (without regard to the applicable spread
over the LIBO Rate referred to in Section 2.03) and any lesser amount that would
be realized by such Lender in reemploying the funds received in prepayment by
making loans of the same type (but utilizing the then applicable LIBO Rate) in
the principal amount prepaid during the period from the date of prepayment to
the last day of the then applicable Interest Period.
2.10. MITIGATION. The Lenders shall use reasonable efforts to
avoid or mitigate any indemnifiable Taxes, increased cost, reduced receivable or
suspension of the availability of the LIBO Rate under Sections 2.07 and 2.08 to
the greatest extent practicable (including transferring the Loan to an
affiliate) unless, in the opinion of any Lender, such efforts would be likely to
have any adverse effect upon it.
2.11. PRO RATA TREATMENT. Except to the extent otherwise
provided herein, each Loan, each payment or prepayment of principal of any Loan,
and each payment of interest on the Loans, shall be allocated pro rata among the
Lenders. The Agent agrees to forward to the Lenders such principal and interest
payments on the same Business Day as such amounts are received, collected or
applied by the Agent from the Borrower unless the Agent receives such amounts
after 2:00 p.m., New York time, in which case such payments shall be forwarded
by the Agent to the Lenders on the next Business Day.
2.12. SHARING OF PAYMENTS. Each Lender agrees that, in the event
that any Lender shall obtain any payment
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in respect of any Loan owing to such Lender under this Loan Agreement through
the exercise of a right of set-off, banker's lien, counterclaim or otherwise in
excess of its pro rata share as provided for in this Loan Agreement, such Lender
shall promptly purchase from the other Lenders a participation in such Lenders'
Loans, in such amounts and with such other adjustments from time to time, as
shall be equitable in order that all Lenders share such payment in accordance
with their respective ratable shares as provided for in this Loan Agreement.
Each Lender further agrees that if a payment to a Lender (which is obtained by
such Lender through the exercise of a right of set-off, banker's lien,
counterclaim or otherwise) shall be rescinded or must otherwise be restored,
each Lender which shall have shared the benefit of such payment shall, by
repurchase of a participation theretofore sold, return its share of that benefit
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a participation may, to
the fullest extent permitted by law, exercise all rights of payment, including
set-off, banker's lien or counterclaim, with respect to such participation as
fully as if such Lender were a holder of such Loan or other obligation in the
amount of such participation.
SECTION 3
CONDITIONS PRECEDENT
3.01. DISBURSEMENT OF LOAN. The obligation of the Lenders to
disburse the principal amount of the Loans is subject to the satisfaction (or
waiver by the Lenders, PROVIDED, that the Lenders shall not waive the
condition set forth in Section 3.01(k) without the consent of the Borrower which
consent shall not be unreasonably withheld by the Borrower) on or prior to the
Closing Date of the following conditions (in form and substance acceptable to
the Lenders) and the Borrower agrees to use its best efforts to the extent
possible to satisfy such conditions as promptly as practicable after the date
hereof:
(a) EXECUTED LOAN DOCUMENTS. Each of the Loan Documents shall
have been duly executed and delivered by the parties thereto and the Lenders
shall have received executed copies of each of the Loan Documents, including the
Assignment of Mortgage in recordable form.
(b) PROCEDURES REGARDING COLLATERAL. Completion to the
satisfaction of the Lenders of all steps necessary to create in favor of the
Collateral Agent a valid, binding and
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perfected first priority pledge of the Mortgage Note and assignment of the
Mortgage, including recordation of the Assignment of Mortgage.
(c) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. Receipt by the
Agent of a certificate signed by the President of the Borrower to the effect
that both at the time of the making of the Loans and after giving effect thereto
(i) there shall exist no Default or Event of Default, and (ii) all
representations and warranties contained herein and in the other Loan Documents
then in effect shall be true and correct in all material respects.
(d) OPINION OF COUNSEL. Receipt by the Agent of a legal opinion,
or opinions, in form and substance reasonably satisfactory to the Agent and
dated as of the Closing Date, from legal counsel to the Borrower as to legal
matters referred to in Section 4.
(e) CORPORATE DOCUMENTS. Receipt by the Agent of all documents
reasonably requested by the Agent relating to the existence of the Borrower, the
validity of the Loan Documents and other matters relating thereto, in form and
substance satisfactory to the Agent, including, but not limited to:
(i) CERTIFICATES OF AUTHORIZATION AND INCUMBENCY. Certificate
of the Secretary of the Borrower, dated as of the Closing Date, as to
resolutions approving and adopting the Loan Documents and authorizing the
execution and delivery thereof and as to the authority of the persons
executing such documents.
(ii) CERTIFICATES OF INCORPORATION AND BY-LAWS. Copies of the
Certificate of Incorporation and By-laws of the Borrower, together with
all amendments thereto certified as of the Closing Date.
(iii) CERTIFICATES OF GOOD STANDING OR EXISTENCE. Certificates
of good standing or existence for the Borrower issued as of a recent date
by its state of organization and each other state where the Borrower, by
the nature of its business, is required to qualify or register.
(f) RELATED TRANSACTIONS. Closing of the transactions relating
to the issuance of the 14% Debentures, the Stock Appreciation Rights and the
Warrants and review and approval by the Agent of the documents relating thereto.
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(g) FEE AND EXPENSES. Payment to the Agent of a fee as set forth
in Schedule 3.01 and all expenses of the Agent in connection herewith shall be
made on the Closing Date. Such fee and expenses shall be paid out of the
proceeds of the Loans.
(h) OTHER DOCUMENTS. Receipt by the Agent of such other
certificates and documents as it may reasonably request.
(i) LOAN AGREEMENT DEFAULT. No Event of Default under the 1985
Loan Agreement, no event of the nature described in Section 5.01(a) of the
Mortgage which with the giving of notice or lapse of time or both would
constitute such an Event of Default, and no event of the nature described in
Sections 5.01(f) and (g) of the New Mortgage (as defined in the 1985 Loan
Agreement) or Sections 5.01(e) and (f) of the Consolidated Mortgage (as defined
in the 1985 Loan Agreement) shall have occurred and be continuing.
(j) MARKET CONDITIONS. There shall be no (i) suspension or
material limitation in trading in securities generally on the New York Stock
Exchange (the "NYSE"); (ii) suspension or material limitation in trading in the
Company's securities on the NYSE; (iii) general moratorium on commercial banking
activities in New York declared by either Federal or New York State authorities;
or (iv) since November 21, 1994, outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause (iv)
in the judgment of the Agent makes it impracticable or inadvisable to proceed
with the transactions contemplated hereunder on the terms and in the manner
contemplated herein.
(k) CONSENT TO ASSIGNMENT. The Borrower shall have obtained the
unconditional consent of RCP and RCPA to the assignment to the Collateral Agent
of the Mortgage and the Mortgage Note and such consent shall be in full force
and effect.
(l) BUSINESS COMBINATION. Except with respect to the issuance of
the Warrants and the Stock Appreciation Rights, the Borrower shall not have
entered into any arrangement or agreement in respect of a "business combination"
as defined in the Certificate of Incorporation of the Borrower (but disregarding
any reference to an "Acquiring Person" in such definition).
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3.02. OBLIGATION OF BORROWER TO CLOSE. The obligation of the
Borrower to close the loan transaction contemplated hereby is subject to
Whitehall not being in default of its obligation to close the purchase of the
14% Debentures.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower hereby represents and warrants to the Lenders that on
the date hereof and on the Closing Date (before and after giving effect to the
making of the Loans):
4.01. EXISTENCE, POWER AND OWNERSHIP.
(a) It is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and is in good standing as
a foreign corporation in each other jurisdiction where ownership of its
properties or the conduct of its business requires it to be so, and it has all
power and authority under such laws and its certificate of incorporation and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
(b) It is subject to taxation as a real estate investment trust (a
"REIT") under Subchapter M of the Code and has satisfied all requirements to
continue to qualify as a REIT. It is not aware of any fact or circumstance that
could reasonably be expected to prevent it from continuing to so qualify in the
future.
4.02. AUTHORIZATION. It has the corporate power and authority to
enter into this Loan Agreement and the other Loan Documents and to perform its
obligations under and consummate the transactions contemplated by such Loan
Documents and has by proper action duly authorized the execution and delivery of
the Loan Documents.
4.03. NO VIOLATIONS OR CONFLICTS. Neither the execution and
delivery of the Loan Documents, nor the consummation of the transactions
contemplated therein, nor performance of and compliance with the terms and
provisions thereof will (i) violate or conflict with any provision of its
certificate of Incorporation or By-laws, (ii) violate any law, regulation
(including without limitation Regulation G, T, U or X), order, writ, judgment,
injunction, decree or permit applicable to it, (iii) violate or materially
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conflict with any contractual provisions of, or cause an event of default under,
any indenture, loan agreement, mortgage, deed of trust, contract or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, or (iv) result in or require the creation of any lien,
security interest or other charge or encumbrance (other than those contemplated
in or in connection with the Loan Documents) upon or with respect to its
properties.
4.04. CONSENTS. No consent, approval, authorization or order of,
or filing, registration or qualification with, any court or governmental
authority or other Person is required in connection with the execution, delivery
or performance of this Loan Agreement or any of the other Loan Documents, except
for the consent of RCP and RCPA to the assignment to the Collateral Agent of the
Mortgage and the Mortgage Note and except for any Hart-Scott-Rodino Act filings
in connection with the exercise of the Warrants.
4.05. ENFORCEABLE OBLIGATIONS. This Loan Agreement and the other
Loan Documents have been duly executed and delivered by the Borrower and
constitute legal, valid and binding obligations of the Borrower, enforceable in
accordance with their respective terms.
4.06. FINANCIAL CONDITION; SECURITIES AND EXCHANGE COMMISSION
FILINGS. (a) Since January 1, 1992, the Borrower has made all required filings
with the Securities and Exchange Commission, and such filings are complete and
correct in all material respects and do not contain any untrue statement of a
material fact or omit any material fact required to be stated therein necessary
to make the statements therein not misleading. The financial statements of the
Borrower contained in such filings are true and correct and fairly present the
financial condition and results of operations of the Borrower as of their dates
and for the respective periods covered thereby; such financial statements were
prepared in accordance with generally accepted accounting principles applied on
a consistent basis (except as noted therein); and since the date of such
financial statements, except as disclosed in such filings with the Securities
and Exchange Commission made on or prior to the date hereof, there have occurred
no changes or circumstances which have had or are likely to have a material
adverse effect on the Borrower and the financial statements referenced above.
(b) The Borrower has delivered to the Agent true and correct copies
of correspondence between the Borrower
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and the Securities and Exchange Commission relating to the Borrower's filing on
Form 10-K for the year ended December 31, 1993.
4.07. NO DEFAULT. No Default or Event of Default presently
exists.
4.08. LIENS. Except for Permitted Liens, it has good and
marketable title to all of its properties and assets free and clear of all
Liens.
4.09. INDEBTEDNESS. It has no Indebtedness (including, without
limitation, any Guaranty Obligations) except for the Loan, the 14% Debentures
and the other Indebtedness specified on Schedule 4.09 hereto.
4.10. LITIGATION. Except as specified in Schedule 4.10 hereto,
there are no actions, suits or legal, equitable, arbitration or administrative
proceedings (including those relating to environmental matters), pending or, to
the knowledge of the Borrower threatened, against the Borrower which, if
adversely determined, would have a material adverse effect on the financial
condition of the Borrower. The Borrower is not aware of any fact or condition
in respect of the Real Estate that could reasonably be expected to result in any
such action, suit, or proceeding or in the incurrence of any material liability
in respect of environmental matters.
4.11. MATERIAL AGREEMENTS. Except as specified on Schedule 4.11
hereto and except agreements filed as exhibits to its filings with the
Securities and Exchange Commission prior to the date hereof, it is not a party
to any material contract, lease, loan agreement, indenture, mortgage, security
agreement or other material agreement or obligation other than (i) the Loan
Documents, (ii) the documents evidencing the Indebtedness described in Section
4.09, and (iii) the Mortgage, Mortgage Note, 1985 Loan Agreements and any
agreement or obligation relating to the mortgage loan evidenced by the
foregoing. Except as specified in Schedule 4.11 hereto and except as disclosed
in its filings with the Securities and Exchange Commission prior to the date
hereof, it is not engaged in any negotiations with, and has no plans or
intention to enter into any other agreements, or modifications of agreements,
with RCP or RCPA.
4.12. TAXES. It has filed, or caused to be filed, all material
reports and returns with respect to taxes (federal, state, local and foreign)
required to be
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filed and such reports and returns were true, complete and accurate in all
material respects and it has paid all amounts of taxes shown thereon to be due
(including interest and penalties) and has paid all other material taxes, fees,
assessments and other governmental charges (including documentary stamp taxes
and intangible taxes) owing (or necessary to preserve any Liens in favor of the
Collateral Agent), by it, except for such taxes (i) which are not yet delinquent
or (ii) as are being contested in good faith and by proper proceedings, and
against which adequate reserves are being maintained in accordance with
generally accepted accounting principles, but only so long as there is no
material liability or any risk of material loss, sale or forfeiture of any
collateral pledged to the Collateral Agent. It is not aware of any proposed
material tax assessments against it. No extension of time for assessment or
payment by the Borrower of any federal, state or local tax is in effect. All
mortgage recording taxes in respect of the Mortgage have been paid.
4.13. COMPLIANCE WITH LAW. It is in compliance with all laws,
rules, regulations, orders and decrees applicable to it or to its properties.
4.14. ERISA. Except for the Retirement Income Plan for Salaried
Employees of Rockefeller Group, Inc., as amended or supplemented in the ordinary
course of business from time to time (the "RGI Plan"), neither it nor its ERISA
Affiliates have established, maintained or been obligated to contribute to any
Plan at any time during the five calendar years preceding the Closing Date.
4.15. SUBSIDIARIES. It has no Subsidiaries other than Deucalion
Capital Corporation, a Delaware corporation.
4.16. USE OF PROCEEDS; MARGIN STOCK. It will use the proceeds of
the Loans hereunder on the Closing Date solely to retire its outstanding
commercial paper, to pay fees and expenses in connection with this Loan
Agreement and to satisfy the interest rate swap agreements specified in
paragraph B. of Schedule 4.09; PROVIDED, that, if any such commercial paper
may not be prepaid on the Closing Date, the Borrower will place sufficient funds
for prepayment in full thereof in escrow with the applicable paying agent. None
of such proceeds will be used for the purpose of purchasing or carrying any
"margin stock" as defined in Regulation G, T, U, or X or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry "margin stock" or for any other purpose which might constitute this
transaction a "purpose credit" within the
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meaning of Regulation G, T, U or X. As of the Closing Date the Borrower does
not own any "margin stock".
4.17. GOVERNMENT REGULATION. It is not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, or
the Interstate Commerce Act, each as amended. In addition, it is not (i) an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, and is not controlled by such a
company, or (ii) a "holding company," or a "Subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "Subsidiary" or a
"holding company," within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
4.18. PARI PASSU OBLIGATIONS. The obligations of the Borrower
hereunder and under the Notes and under the Debenture Purchase Agreement and the
14% Debentures rank and will at all times rank PARI PASSU with all other
obligations of the Borrower in respect of its unsubordinated indebtedness for
borrowed money, and there is no indebtedness for borrowed money of the Borrower
senior to the Notes or the 14% Debentures.
4.19. OWNERSHIP OF REAL ESTATE. The Borrower has good and
marketable title to the Mortgage Note, the Mortgage, the Letters of Credit (as
specified on Schedule II to the Collateral Trust Agreement (the "Letters of
Credit")) and the Title Insurance (as defined in the Collateral Trust
Agreement), free and clear of all liens, except (i) the liens to be granted
pursuant to the Loan Documents and (ii) the restrictions on transfer contained
in the 1985 Loan Agreement, the Letters of Credit and the Title Insurance. The
Borrower has not granted to any other person any rights, recorded or unrecorded,
in the Mortgage or the Mortgage Note. To the best of the Borrower's knowledge,
no person, other than the Borrower, has any right or option, recorded or
unrecorded, to acquire the Real Estate or any portion thereof or interest
therein. The Mortgage remains a valid lien on all the Real Estate and on the
Lessor's interest in all Leases (as defined in the Mortgage), with a priority in
all material respects no less than its priority as of September 19, 1985 except
as such priority may be affected by the subordination referred to in Clause (ii)
of Recital G to the Amendment and Restatement of the Mortgage dated as of
December 1, 1988. The outstanding aggregate principal amount of the Mortgage
Note is $1,300,000,000, and no default exists thereunder.
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4.20. NO PENDING CONDEMNATION OR EMINENT DOMAIN. The Borrower
has no knowledge of any pending or threatened condemnation or eminent domain
proceedings which would affect the Real Estate.
4.21. CAPITALIZATION. As of the date hereof, the Borrower's
authorized capital stock consists of 150,000,000 shares of Common Stock and
38,260,704 shares of Common Stock were issued and outstanding, no shares of
Common Stock were held in treasury, and there were no outstanding employee stock
options. The Common Stock constitutes all of the issued and outstanding capital
stock of the Borrower. There are no other classes of capital stock of the
Borrower authorized or outstanding. The outstanding Common Stock is duly
authorized, validly issued, fully paid and non-assessable. Except for the
transactions contemplated by the Loan Documents and except in respect of the
Indenture Securities, there are no preemptive or other outstanding rights,
options, warrants, conversion rights or agreements or commitments of any
character relating to the Borrower's authorized and issued, unissued or treasury
shares of capital stock, and the Borrower has not issued any debt securities,
other securities, rights or obligations that are currently outstanding and are
convertible into or exchangeable for, or giving any Person a right to subscribe
for or acquire, capital stock of the Borrower.
SECTION 5
AFFIRMATIVE COVENANTS OF THE BORROWER
The Borrower hereby covenants and agrees that so long as this Loan
Agreement is in effect and until the Loans, together with interest, fees and
other obligations hereunder, have been paid in full:
5.01. INFORMATION COVENANTS. The Borrower will furnish, or cause
to be furnished, to the Lenders:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within 90 days after the close of each fiscal year of the Borrower, a
balance sheet of the Borrower as at the end of such fiscal year together with
related statements of income and retained earnings and of cash flows for such
fiscal year, all in reasonable detail and examined by independent certified
public accountants of recognized national standing whose opinion shall be to the
effect that such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis (except
for changes with which
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such accountants concur) and shall not be qualified as to the scope of the
audit, all of the foregoing to be in reasonable detail and in form and substance
satisfactory to the Agent.
(b) AUDITOR'S CERTIFICATE. At the time of delivery of the
financial statements provided for in Section 5.01(a) hereof, a certificate from
the accountants examining such financial statements, that, to the best of their
knowledge, no Event of Default exists, or, if any Event of Default does exist,
providing a reasonably detailed summary of all relevant information known to
such accountants.
(c) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in
any event within 45 days after the end of each fiscal quarter of each fiscal
year of the Borrower, (i) except for the fourth fiscal quarter of each fiscal
year, a balance sheet of the Borrower as at the end of such quarterly period
together with related statements of income and retained earnings for such
quarterly period and for the portion of the fiscal year ending with such period,
all in reasonable detail and in form and substance satisfactory to the Agent,
and accompanied by a certificate of the President of the Borrower as being true
and correct and as having been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, subject to changes
resulting from audit and normal year-end audit adjustments, (ii) a report
showing the calculation of Net Cash Flow for such fiscal quarter and (iii)
estimates made in good faith by the Borrower of the items specified in (ii)
above relating to the next fiscal quarter. For so long as the Borrower is
required to file reports pursuant to the Securities Exchange Act of 1934, the
Borrower may satisfy its obligations under Section 5.01(a) and 5.01(c)(i) hereof
by delivering to the Agent, within the time periods specified in such Sections,
copies of its reports on Form 10-K and Form 10-Q, respectively, with the
Securities and Exchange Commission.
(d) OFFICER'S CERTIFICATE. At the time of delivery of the
financial statements provided for in Section 5.01(c) hereof, a certificate of
the President of the Borrower substantially in the form of Exhibit B to the
effect that no Default or Event of Default exists, or, if any Default or Event
of Default does exist, specifying the nature and extent thereof and what action
the Borrower proposes to take with respect thereto.
(e) AUDITOR'S REPORTS. Promptly upon receipt thereof, a copy of
any other report or management letter
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submitted by independent accountants to the Borrower in connection with any
annual, interim or special audit of the books of Borrower.
(f) REAL ESTATE AND OTHER INFORMATION. Promptly upon receipt
thereof, copies of all financial information, reports and other documents
received by the Borrower pursuant to the 1985 Loan Agreement and the Mortgage,
including without limitation, all documents delivered to Borrower pursuant to
Sections 6.05 and 6.08 of the 1985 Loan Agreement and Sections 704 and 1010 of
the Mortgage .
(g) OTHER INFORMATION. With reasonable promptness upon any such
request, such other information regarding the business, properties or financial
condition of the Borrower as the Agent may reasonably request, including without
limitation copies or summaries of, as the case may be, all non-routine
correspondence to or from and summaries of contacts and conversations with RCP,
RCPA or any of their affiliates, subject to compliance with any applicable
confidentiality restrictions agreed to by the Borrower in good faith.
(h) NOTICE OF DEFAULT OR LITIGATION. Upon the Borrower obtaining
knowledge thereof, it will give written notice to the Agent promptly, but in any
event within five Business Days, of the occurrence of any of the following with
respect to the Borrower: (i) the occurrence of an event or condition consisting
of a Default, specifying the nature and existence thereof and what action the
Borrower proposes to take with respect thereto, (ii) the pendency or
commencement of any litigation, arbitral or governmental proceeding against the
Borrower in which damages are sought or environmental remediation demanded which
exceeds $1,000,000 in any instance or $5,000,000 in the aggregate or which might
otherwise materially adversely affect the business, properties, assets,
condition (financial or otherwise) or prospects of the Borrower, (iii) any levy
of an attachment, execution or other process against its assets in excess of
$1,000,000, (iv) the occurrence of an event or condition which shall constitute
a default or event of default under any other agreement for borrowed money in
excess of $1,000,000, (v) any development in its business or affairs which has
resulted in, or which the Borrower reasonably believes may result in, a material
adverse effect on the business, properties, assets, condition (financial or
otherwise) or prospects of the Borrower, (vi) the institution of any proceedings
against, or the receipt of notice of potential liability or responsibility for
any violation, or alleged violation of, any federal, state or local law, rule
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or regulation, the violation of which could give rise to a material liability,
or have a material adverse effect on the business, assets, properties condition
(financial or otherwise) or prospects of the Borrower, or (vii) the occurrence
of an event or condition which may render the Borrower unable to qualify as a
REIT under the Code.
(i) CHANGES TO INDEBTEDNESS. Within 30 days prior thereto,
notice of any proposed extension, renewal, refinancing or modification of
Indebtedness made pursuant to Section 6.01(iv) or Section 6.15.
5.02. PRESERVATION OF EXISTENCE AND FRANCHISES. The Borrower
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights, franchises and authority and will at all
times take all reasonable steps necessary to qualify to be taxed as a REIT as
long as a REIT is accorded substantially the same treatment under the United
States income tax laws from time to time in effect as under Sections 856-860 of
the Code, in effect at the date of this Loan Agreement, as originally executed.
5.03. BOOKS, RECORDS AND INSPECTIONS. The Borrower will keep
complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of generally accepted accounting
principles applied on a consistent basis (including the establishment and
maintenance of appropriate reserves). The Borrower will permit, on reasonable
notice, officers or designated representatives of the Lender to visit and
inspect its books of account and records and any of its properties or assets and
to discuss the affairs, finances and accounts of the Borrower with, and be
advised as to the same by, its officers, directors and independent accountants.
5.04. COMPLIANCE WITH LAW. The Borrower will comply in all
material respects with all applicable laws, rules, regulations and orders of,
and all applicable restrictions imposed by, all applicable governmental bodies,
foreign or domestic, or authorities and agencies thereof (including
quasi-governmental authorities and agencies), in respect of the conduct of its
business and the ownership of its property.
5.05. INSURANCE. Except as specified in Schedule 5.05, the
Borrower will at all times maintain in full force and effect insurance
(including worker's compensation insurance, liability insurance, casualty
insurance and business
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interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
normal industry practice.
5.06. MAINTENANCE OF PROPERTY. The Borrower will maintain and
preserve its properties and assets in good repair, working order and condition,
normal wear and tear excepted, and will make, or cause to be made, in such
properties and assets from time to time all repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto as may be needed or
proper, to the extent and in the manner customary for companies in similar
businesses.
5.07. PLAN ASSETS. The Borrower will use its best efforts to
not take any action that would cause it to be deemed to hold Plan Assets at any
time.
5.08. INTERCREDITOR AGREEMENT. The Borrower will comply with the
terms of the Intercreditor Agreement in respect of payments to be made in
respect of the Notes and the 14% Debentures notwithstanding that such terms may
alter the provisions set forth herein, in the Notes, in the Debenture Purchase
Agreement or in the 14% Debentures.
5.09. RESALE OF LOAN. The Borrower, upon the request of the
Required Lenders from time to time, will exchange the Notes for any other
evidences of indebtedness or debt securities, whether floating rate notes,
debentures or otherwise (the "New Debt"), and shall enter into any such
agreements, whether in the form of an amendment hereto, an indenture, a note
purchase agreement or otherwise (the "New Documents"), as shall be deemed
necessary or desirable by the Lenders in connection with the resale of the
Loans, whether as a private placement, a registered public offering or
otherwise, provided only that the aggregate principal amount of the New Debt
shall be equal to the unpaid principal amount of the Loans at the time of
exchange and the business terms (including aggregate interest) of the New
Documents shall be substantially the same as the business terms (including
affirmative and negative covenants) contained herein. Notwithstanding the
foregoing, it is understood by the parties that (a) the definition of the terms
"LIBO Rate" and "Interest Period" may be revised to provide for one-month
Interest Periods and a corresponding adjustment of the 4% margin if the
definition of the term "Interest Period" (but not the definition of "LIBO Rate")
should change, (b) the New Debt shall be in such denominations and tranches and
have such other features (including,
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without limitation, intercreditor and/or priority arrangements) as may be deemed
appropriate by the Lenders, (c) the New Documents will contain additional terms
and provisions governing the voting rights of the holders of the New Debt
including the requirement of unanimous approval of the holders of New Debt for
waivers or amendments in respect of Section 6.12 and any release of security for
the New Debt, in each case, to the extent desired by the Lenders, any provision
relating to payment of interest, repayment of principal or payment of any fees
or indemnities and any other provisions customarily so treated, (d) the New
Documents will contain such additional terms and provisions as are customarily
contained in such documents governing the issuance of debt including provisions
governing the rights of indenture trustees and/or administrative agents and bank
set-off and sharing provisions, as applicable, (e) the New Documents will
contain such other additional terms and provisions as are reasonably requested
by the Lenders in order to effectuate the resale of the Loans and such other
additions hereto or variations herefrom as are requested by any rating agency
rating the New Debt, including, without limitation, requiring accrual of
payments that are due in escrow or trust accounts, except to the extent
otherwise prohibited by the 1985 Indenture and except that no such escrow shall
be required in respect of regularly scheduled payments on account of the Loans
and (f) the New Documents will be in such form and will contain such terms and
provisions as are necessary to comply with all applicable securities laws,
including, in the case of an indenture, the Trust Indenture Act of 1939, as
amended. In furtherance of the foregoing, the Borrower will provide the Lenders
with all such documents and information, financial or otherwise, assist in all
such due diligence and do such other things and enter into such other agreements
as are necessary or, in the judgment of the Lenders, desirable to resell the
Loans and carry out the intent of this Section 5.09. The term "Lender" as used
in this Loan Agreement shall include any trustee for an indenture pursuant to
which the New Debt is issued.
SECTION 6
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Loan
Agreement is in effect and until the Loans, together with all interest, fees and
other obligations hereunder, have been paid in full:
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6.01. INDEBTEDNESS. The Borrower will not contract, create,
incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness arising under this Loan Agreement and the other
Loan Documents;
(ii) Current liabilities for taxes and assessments incurred or
arising in the ordinary course of business;
(iii) Indebtedness in respect of current accounts payable or accrued
(other than for borrowed money or purchase money obligations) and incurred
in the ordinary course of business; PROVIDED, that all such liabilities,
accounts and claims shall be paid when due (or in conformity with
customary trade terms);
(iv) Indebtedness in effect on the date hereof (as specified in
Schedule 4.09) and any extensions, renewals or refinancings thereof in an
amount not to exceed the outstanding accreted amount thereof on the date
of refinancing; PROVIDED that no such Indebtedness may be renewed,
extended or refinanced if, as a result thereof, quarterly debt service of
the Borrower would be materially increased or Net Cash Flow of the
Borrower would be materially decreased;
(v) Unsecured Indebtedness in an aggregate amount not to exceed
$10,000,000 at any time outstanding incurred by the Borrower to cover
working capital needs; and
(vi) 14% Debentures issued in connection with the conversion of
Stock Appreciation Rights.
6.02. LIENS. Except with respect to Permitted Liens, the
Borrower will not (i) contract, create, incur, assume or permit to exist any
Lien with respect to any of its property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or hereafter acquired, (ii)
sell any of its property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable or notes with recourse to it) or (iii) assign any right
to receive income.
6.03. NATURE OF BUSINESS. The Borrower (i) will not alter the
character or conduct of its business from that conducted as of the Closing Date
which is and shall be limited to the ownership and management of the Mortgage,
the
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Mortgage Note and the partnership interests in any partnership which owns the
Real Estate and (ii) will not permit its Subsidiary to engage in any business
activity whatsoever or to own any assets or incur any liabilities.
6.04. CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS. The
Borrower will not dissolve, liquidate, or wind up its affairs, and will not
enter into any transaction of merger or consolidation, or sell or otherwise
dispose of all or any part of its property or assets or, other than in the
ordinary course of its business, purchase, lease or otherwise acquire (in a
single transaction or a series of related transactions) all or any part of the
property or assets of any Person, except that the Borrower may merge or be
consolidated with any other U.S. corporation so long as (i) the Borrower shall
be the surviving corporation, (ii) after giving effect to any such transaction,
no Default or Event of Default shall exist, including, without limitation, any
Default in respect of Section 6.03 and (iii) the surviving corporation shall
have a number of authorized, issued and outstanding shares of capital stock no
greater than that of the Borrower immediately prior to such transaction.
6.05. ADVANCES, INVESTMENTS AND LOANS. The Borrower will not
lend money or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any Person except for Permitted Investments.
6.06. TRANSACTIONS WITH AFFILIATES. The Borrower will not
enter into any transaction or series of transactions with any stockholder,
employee or Affiliate other than on terms and conditions substantially as
favorable to the Borrower as would be obtainable by it in a comparable
arm's-length transaction with a Person other than a stockholder, employee or
Affiliate, except for employment contracts and other employee benefit plans and
arrangements entered into in the ordinary course of business and approved by the
compensation committee of the Board of Directors of the Borrower, and
compensation arrangements with directors approved by the Board of Directors of
the Borrower.
6.07. OPERATING LEASE OBLIGATIONS. The Borrower will not enter
into, assume or permit to exist any obligations for the payment of rent for any
property (real, personal or mixed, tangible or intangible) under leases,
subleases or similar arrangements as lessee, except for the Borrower's leases
for office space on reasonable terms.
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6.08. SALE AND LEASEBACK. The Borrower will not enter into any
arrangement pursuant to which it will lease back, as lessee, any property (real,
personal or mixed, tangible or intangible) previously owned by it and sold or
otherwise transferred or disposed of, directly or indirectly, to the
owner-lessor of such property.
6.09. GOVERNING DOCUMENTS. The Borrower will not propose or
initiate any action in respect of any amendment, modification, supplement,
waiver or termination of any provisions of its Certificate of Incorporation or
By-Laws, except for an amendment to its Certificate of Incorporation to
eliminate or modify the "Limit" provided for in Article Ninth (A) thereof.
6.10. ERISA. Except for the RGI Plan, the Borrower will not
establish any Plan or take any action that would cause it to become obligated
under any Plan.
6.11. DIVIDENDS. The Borrower will not declare or pay any
dividend on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, Common Stock, (i) subject to clauses (ii)
and (iii) below, in an amount in excess of $.80 per share per annum, adjusted to
reflect any stock splits, stock dividends or similar transactions, unless and to
the extent required to meet qualification rules for a REIT requiring
distributions of 95% (or such other percentage as may be required by a change in
the Code applicable to REITs) (such required distributions are referred to
herein as "REIT Distributions"), (ii) at any time when a payment default exists
under the Mortgage, the Mortgage Note or the 1985 Loan Agreement except for REIT
Distributions and (iii) if the Borrower shall not qualify to be taxed as a REIT
under the Code. The Borrower will not make any payment on account of a Warrant
or Stock Appreciation Right in an amount per share in excess of the positive
difference between (x) any amounts per share paid to holders of Common Stock
pursuant to the preceding sentence and (y) $.60 per annum, adjusted to reflect
any stock splits, stock dividends or similar transactions; PROVIDED, that this
Section 6.11 shall not operate to prevent the exercise of Warrants or conversion
of Stock Appreciation Rights in accordance with their respective terms or any
payment on 14% Debentures issued on conversion of Stock Appreciation Rights.
6.12. MODIFICATIONS TO MORTGAGE. The Borrower will not amend or
in any way waive or modify any payment provision of the Mortgage or the Mortgage
Note and will not
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amend Article X of the 1985 Loan Agreement or the Purchase Option.
6.13. MORTGAGE CONVERSION. The Borrower will not exercise the
rights granted to it in the Purchase Option and Article X of the 1985 Loan
Agreement.
6.14. COVERAGE TEST. Net Cash Flow of the Borrower for each
twelve-month period ending December 31, determined as of December 1 in each such
period (but giving effect to payments due and revenues anticipated through
December 31), shall not be less than 125% of the Fixed Amortization Amount for
such period.
6.15. MODIFICATION OR PREPAYMENT OF INDEBTEDNESS. The Borrower
will not modify any Indebtedness if (i) quarterly debt service of the Borrower
would be materially increased or Net Cash Flow of the Borrower would be
materially decreased as a result thereof or (ii) the business, properties,
assets, condition (financial or otherwise) or prospects of the Borrower might
otherwise be materially adversely affected. The Borrower will not prepay or
acquire any of its Indebtedness (other than as required by the terms thereof as
in effect on the date hereof or permitted hereunder in respect of the Loans or
under the Debenture Purchase Agreement in respect of the 14% Debentures and
except for the Indebtedness permitted under Section 6.01(v)) and will cause to
remain outstanding in full force and effect until their respective termination
dates the interest rate swap agreements specified in paragraph A of Schedule
4.09.
SECTION 7
EVENTS OF DEFAULT
7.01. EVENTS OF DEFAULT. An Event of Default shall exist upon
the occurrence of any of the following specified events (each an "Event of
Default"):
(a) PAYMENT. The Borrower shall (i) default in the payment when
due of any principal owing hereunder or under the Notes (including any
mandatory prepayment required hereunder or any voluntary prepayment after
giving notice thereof in accordance with Section 2.05), or (ii) default in
the payment when due of any interest, fees or other amounts owing
hereunder, under the Notes, the Collateral Trust Agreement, the Security
Documents or the Letter Agreement or in connection herewith and such
default referred to in this subpara-
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graph (ii) shall continue unremedied for at least ten days; or
(b) REPRESENTATIONS. Any representation, warranty or statement
made on the date hereof or deemed to be made as of the Closing Date by the
Borrower herein or in any of the Security Documents, the Collateral Trust
Agreement or the Letter Agreement or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto shall
prove untrue in any material respect on the date as of which it was made
or deemed to have been made; or
(c) COVENANTS. The Borrower shall (i) default in the due
performance or observance of any term, covenant or agreement contained in
Section 5.01(h)(i) or in Section 6 (other than Sections 6.06, 6.07 and
6.10), or (ii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in subsection
(a), (b) or (c) (i) of this Section 7.01) contained in this Loan Agreement
and such default referred to in this subparagraph (ii) shall continue
unremedied for a period of at least 30 days after notice from the Agent of
such default; or
(d) OTHER AGREEMENTS. The Borrower shall default in the due
performance or observance of any term, covenant or agreement in any of the
Security Documents, the Collateral Trust Agreement or the Letter Agreement
(subject to applicable grace or cure periods, if any) applicable to it, or
the Security Documents, the Collateral Trust Agreement or the Letter
Agreement shall fail to be in full force and effect or to give the
Collateral Agent, the Agent and the Lenders the Liens, rights, powers and
privileges purported to be created thereby (except insofar as such failure
is due to the act of the Collateral Agent, the Agent or any Lender); or
(e) BANKRUPTCY, ETC. (i) The Borrower shall commence a voluntary
case concerning itself under the Bankruptcy Code in Title 11 of the United
States Code (as amended, modified, succeeded or replaced, from time to
time, the "Bankruptcy Code"); or (ii) an involuntary case is commenced
against the Borrower under the Bankruptcy Code and the petition is not
dismissed within 90 days after commencement of the case; or (iii) a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of all or substantially all of the property of the Borrower; or
(iv) the
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Borrower commences any other proceeding under any reorganization,
arrangement, adjustment of the debt, relief of creditors, dissolution,
insolvency or similar law of any jurisdiction whether now or hereafter in
effect relating to the Borrower; or (v) there is commenced against the
Borrower any such proceeding which remains undismissed for a period of 90
days after commencement of such proceeding; or (vi) the Borrower is
adjudicated insolvent or bankrupt; or (vii) any order of relief or other
order approving any such case or proceeding is entered; or (viii) the
Borrower suffers appointment of any custodian or the like for it or for
any substantial part of its property and such appointment continues
unchanged or unstayed for a period of 90 days after commencement of such
appointment; or (ix) the Borrower makes a general assignment for the
benefit of creditors; or (x) any corporate action is taken by the Borrower
for the purpose of effecting any of the foregoing; or
(f) DEFAULTS UNDER OTHER AGREEMENTS. (i) The Borrower shall (x)
default in any payment in an amount of $1,000,000 or more (beyond the
applicable grace period with respect thereto, if any) with respect to any
other Indebtedness, or (y) default in the observance or performance of any
agreement or condition relating to any such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any other event or condition shall occur or condition exist, the effect of
which default, in the case of (y), or other event or condition is to
cause, or permit, the holder or holders of such Indebtedness (or trustee
or agent on behalf of such holders) to cause (determined without regard to
whether any notice or lapse of time is required), any such Indebtedness,
in an amount of $1,000,000 or more, to become due prior to stated
maturity, or (ii) any such Indebtedness of the Borrower, in an amount of
$1,000,000 or more, shall be declared due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior to
the stated maturity thereof.
(g) JUDGMENTS. One or more final judgments or decrees shall be
entered against the Borrower involving a liability of $1,000,000 or more
in any instance, or $5,000,000 or more in the aggregate for all such
judgments and decrees collectively (not paid or fully covered by insurance
provided by a carrier who has acknowledged coverage) and any such
judgments or
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decrees shall not have been vacated, discharged, paid or stayed or bonded
pending appeal within the time permitted to appeal therefrom.
7.02 REMEDIES. Upon the occurrence of an Event of Default, the
Agent shall, upon the request and direction of the Required Lenders, by written
notice to the Borrower, take any of the following actions without prejudice to
its rights to enforce its claims against the Borrower, except as otherwise
specifically provided for herein:
(i) ACCELERATION OF LOAN. Declare the unpaid principal of and
any accrued interest in respect of the Loans and the Notes to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and
(ii) ENFORCEMENT OF RIGHTS. Enforce any and all Liens and
security interests in favor of the Agent and the Lenders in respect of the
Notes and the Loans and any other amounts due, including, without
limitation, all rights and interests created and existing under any of the
Security Documents, the Collateral Trust Agreement and the Letter
Agreement and all rights of set-off;
PROVIDED, HOWEVER, that, notwithstanding the foregoing, if an Event of
Default specified in Section 7.01(e) shall occur, then the Notes and the Loans
shall immediately become due and payable without the giving of any notice or
other action by the Agent or any Lender.
SECTION 8
THE AGENT AND THE LENDERS
8.01. THE AGENCY. Each Lender appoints Goldman Sachs Mortgage
Company as its Agent hereunder and irrevocably authorizes the Agent to take such
action on its behalf and to exercise such powers hereunder and thereunder as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental hereto and thereto, including the
execution and delivery by the Agent on behalf of such Lender of the Collateral
Trust Agreement and any documents related thereto and the exercise by the Agent
of powers delegated to the Agent and the Lenders thereby, and the Agent hereby
accepts such appointment subject to the terms hereof. The relationship between
the Agent and the Lenders shall be that
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of agent and principal only and nothing herein or therein shall be construed to
constitute the Agent a trustee for any Lender nor to impose on the Agent duties
or obligations other than those expressly provided for herein.
8.02. THE AGENT'S DUTIES. The Agent shall promptly forward to
each Lender copies, or notify each Lender as to the contents, of all notices and
other communications received from the Borrower pursuant to the terms of this
Loan Agreement, the Assignment of Mortgage, the Collateral Trust Agreement and
the Letter Agreement and, in the event that the Borrower fails to pay when due
the principal of or interest on any Loan, the Agent shall promptly give notice
thereof to the Lenders. As to any other matter not expressly provided for
herein or therein, the Agent shall have no duty to act or refrain from acting
with respect to the Borrower, except upon the instructions of the Required
Lenders. The Agent shall not be bound by any waiver, amendment, supplement, or
modification of this Loan Agreement or the other Loan Documents which affects
its duties hereunder and thereunder, unless it shall have given its prior
written consent thereto. The Agent shall have no duty to ascertain or inquire
as to the performance or observance of any of the terms, conditions, covenants
or agreements binding on the Borrower pursuant to this Loan Agreement, the
Assignment of Mortgage, the Collateral Trust Agreement or the Letter Agreement
nor shall it be deemed to have knowledge of the occurrence of any Default or
Event of Default (other than a failure of the Borrower to pay when due the
principal or interest on any Loan), unless it shall have received written notice
from the Borrower or a Lender specifying such Default or Event of Default and
stating that such notice is a "Notice of Default".
8.03. THE AGENT'S LIABILITIES. Each of the Lenders and the
Borrower agrees that (i) neither the Agent in such capacity nor any of its
officers or employees shall be liable for any action taken or omitted to be
taken by any of them hereunder except for its or their own gross negligence or
wilful misconduct, (ii) neither the Agent in such capacity nor any of its
officers or employees shall be liable for any action taken or omitted to be
taken by any of them in good faith in reliance upon the advise of counsel,
independent public accountants or other experts selected by the Agent, and (iii)
the Agent in such capacity shall be entitled to rely upon any notice, consent,
certificate, statement or other document (including any telegram, cable, telex,
facsimile or telephone transmission) believed by it to be genuine and correct
and to have been signed and/or sent by the proper Persons.
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8.04. THE AGENT AS A LENDER. The Agent shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not the Agent, and the terms "Lender" or "Lenders", unless the
context otherwise indicated, include the Agent in its individual capacity. The
Agent may, without any liability to account, maintain deposits or credit
balances for, invest in, lend money to and generally engage in any kind of
banking business with the Borrower or any affiliate of the Borrower as if it
were any other Lender and without any duty to account therefor to the other
Lenders.
8.05. LENDER CREDIT DECISION. Neither the Agent nor any of its
officers or employees has any responsibility for, gives any guaranty in respect
of, nor makes any representation to the Lenders as to, (i) the condition,
financial or otherwise, of the Borrower or the truth of any representation or
warranty given or made herein or in any other Loan Document, or in connection
herewith or therewith or (ii) the validity, execution, sufficiency,
effectiveness, construction, adequacy, enforceability or value of this Loan
Agreement, the Assignment of Mortgage, the Collateral Trust Agreement or the
Letter Agreement or any other document or instrument related hereto or thereto.
Except as specifically provided herein and in the Assignment of Mortgage, the
Collateral Trust Agreement and the Letter Agreement to which the Agent is a
party, the Agent shall have no duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other information
with respect to the operations, business, property, condition or
creditworthiness of the Borrower, whether such information comes into the
Agent's possession on or before the date hereof or at any time thereafter. Each
Lender acknowledges that it has, independently and without reliance upon the
Agent or any other Lender, based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Loan Agreement and to authorize the Agent to execute on its behalf the
Collateral Trust Agreement. Each Lender also acknowledges that it will
independently and without reliance upon the Agent or any other Lender, based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Loan Agreement or any other Loan Document.
8.06. INDEMNIFICATION. Each Lender agrees (which agreement shall
survive payment of the Loans and the Notes) to indemnify the Agent, to the
extent not reimbursed by the Borrower, ratably in accordance with their Loans
(as of the
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time of the incurrence of the liability being indemnified against), from and
against any and all liabilities, obligations, losses, claims, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Loan Agreement
or any other Loan Document, or any action taken or omitted to be taken by the
Agent hereunder or thereunder; PROVIDED, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or wilful misconduct of the Agent or any of its officers or
employees. Without limiting the foregoing, each Lender agrees to reimburse the
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Agent in such capacity in connection
with the preparation, execution or enforcement of, or legal advice in respect of
rights or responsibilities under, this Loan Agreement, the Assignment of
Mortgage, the Collateral Trust Agreement or the Letter Agreement or any
amendments or supplements hereto or thereto, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
8.07 SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, and the Agent may be
removed at any time by the Required Lenders by giving written notice thereof to
the Agent, the other Lenders and the Borrower at least 10 Business Days prior to
the effective date of such removal. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the resigning Agent's giving
of notice of resignation, or the Required Lenders' giving notice of removal, as
the case may be, the resigning or removed Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be a commercial bank organized under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers
privileges and duties of the resigned or removed Agent, and the resigned or
removed Agent shall be discharged from its duties and obligations under this
Loan Agreement. After any Agent's resignation or removal hereunder as Agent,
the provisions of this Section 8 shall
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inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Loan Agreement.
SECTION 9
MISCELLANEOUS
9.01. NOTICES. Except as otherwise expressly provided herein,
all notices and other communications shall have been duly given and shall be
effective (i) when delivered, (ii) when transmitted via telecopy (or other
facsimile device) to the number set out below, (iii) the day following the day
on which the same has been delivered prepaid to a reputable national overnight
air courier service or (iv) the third Business Day following the day on which
the same is sent by certified or registered mail, postage prepaid, in each case
to the respective parties at the address set forth below, or at such other
address as such party may specify by written notice to the other party hereto:
if to the Agent: Goldman Sachs Mortgage Company
85 Broad Street, 27th Floor
New York, New York 10004
Attention: Steven Mnuchin
Telephone: 902-0100
Telecopy: 902-3000
Copy to: Frances Bermanzohn
Telephone: 902-2609
Telecopy: 902-3000
if to the Borrower: Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
Attention: Secretary
Telephone: 698-1440
Telecopy: 698-1453
if to the Lenders: at the addresses set forth on the signature pages
hereto
9.02. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS.
(a) This Loan Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto; PROVIDED that
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the Borrower may not assign and transfer any of its interests without prior
written consent of the Lenders.
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Loan. In the
event of any such grant by a Lender of a participating interest to a
Participant, whether or not upon notice to the Borrower and the Agent, such
Lender shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Loan Agreement. Any agreement pursuant to which any
Lender may grant such a participating interest shall provide that such Lender
shall retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including the right to approve any amendment, modification or
waiver of any provision of this Loan Agreement; PROVIDED, that such
participation agreement may provide that such Lender will not agree to any
modification, amendment or waiver of this Loan Agreement described in clauses
(i) through (vi), inclusive, of Section 9.05 without the consent of the
Participant. The Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.07, 2.09 and 9.04 with respect to its participating
interest; PROVIDED, that all amounts payable to a Lender for the account of a
Participant under Sections 2.07, 2.09 and 9.04 shall be determined as if such
Lender had not granted such participation to the Participant.
(c) Any Lender may at any time assign to one or more banks or other
institutions (each as "Assignee") all or a proportionate part, of its rights and
obligations under this Loan Agreement and its Note, and such Assignee shall
assume such rights and obligations, pursuant to an instrument executed by such
Assignee, such transferor Lender and the Agent. Upon execution and delivery of
such an instrument, notification to the Borrower of such Assignment and payment
by such Assignee to such transferor Lender of an amount equal to the purchase
price agreed between such transferor Lender and such Assignee, such Assignee
shall be a Lender party to this Loan Agreement and shall have all the rights and
obligations of a Lender and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent. Upon the consummation of any
assignment pursuant to this subsection (c), the transferor Lender, the Agent and
the Borrower shall make appropriate arrangements so that, if required, a new
Note is issued to the Assignee.
-43-
<PAGE>
(d) The Agent shall maintain at its address referred to in Section
9.01 a register for the recordation of the names and addresses of the Lenders
and the principal amount of the Loans owing to each Lender from time to time
(the "Register"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower, the Agent and the
Lenders shall treat only the Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
9.03. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of the Lender in exercising any right, power or privilege hereunder or
under any of the Security Documents, the Collateral Trust Agreement or the
Letter Agreement and no course of dealing between the Borrower and any Lender
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder or under any of the Security Documents,
the Collateral Trust Agreement or the Letter Agreement preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein are cumulative
and not exclusive of any rights or remedies which the Lenders would otherwise
have. No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Lenders to any other
or further action in any circumstances without notice or demand.
9.04. PAYMENT OF EXPENSES; INDEMNIFICATION. The Borrower agrees
to:
(i) pay all reasonable out-of-pocket costs and expenses of the
Agent in connection with the negotiation, preparation, execution and
delivery and administration of this Loan Agreement, the Security
Documents, the Collateral Trust Agreement and the Letter Agreement and the
documents and instruments referred to therein and in connection with the
resale of the Loans, the exchange of the Notes for the New Debt and the
negotiation, preparation, execution and delivery of any New Documents as
contemplated by Section 5.09 (including, without limitation, the fees and
expenses of Sullivan & Cromwell and Cleary, Gottlieb, Steen & Hamilton,
special counsel to the Agent, and any indenture trustee, administrative
agent
-44-
<PAGE>
or like parties in respect of the New Debt, and the reasonable travel
expenses of employees of the Agent) and any amendment, waiver or consent
relating hereto or thereto including, but not limited to, any such
amendments, waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the Borrower
under this Loan Agreement and of the Agent and the Lenders in connection
with enforcement of the Security Documents, the Collateral Trust Agreement
and the Letter Agreement and the documents and instruments referred to
therein (including, without limitation, the fees and disbursements of
counsel for the Agent and the Lenders);
(ii) pay and hold the Agent and the Lenders harmless from and
against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save the Agent and the Lenders
harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent
attributable to the Agent or the Lenders) to pay such taxes;
(iii) indemnify the Agent and the Lenders, their respective officers,
directors, partners, employees, representatives, affiliates and agents
from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a
result of, or arising out of, or in any way related to, or by reason of,
any investigation, litigation or other proceeding (whether or not the
Agent or any Lender is a party thereto) related to the entering into
and/or performance of this Agreement, the Security Documents, the
Collateral Trust Agreement or the Letter Agreement or the use of proceeds
of the Loans hereunder or the consummation of any other transactions
contemplated in this Agreement, the Security Documents, the Collateral
Trust Agreement or the Letter Agreement (including the resale of the Loans
and the exchange of the Notes as contemplated by Section 5.09), including,
without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding, as the same are incurred (but excluding any such losses,
liabilities, claims, damages or expenses to the extent incurred by reason
of gross negligence or willful misconduct on the part of the Person to be
indemnified); and
-45-
<PAGE>
(iv) if the indemnification provided for in Section 9.04(iii) is
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses (or
actions in respect thereof) referred to therein, then the Borrower shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Borrower on the one hand and
the Lenders and the Agent on the other from the consummation of the
transactions contemplated in this Loan Agreement. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Borrower on the one hand and the Lenders and the
Agent on the other in connection with the actions which resulted in such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Borrower on the one hand and the Agent
and the Lenders on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the Loans (before deducting
expenses) received by the Borrower bear to the net fees paid in accordance
with Section 3.01(g) and retained by the indemnified Agent or Lender. The
relative fault shall be determined by reference to, among other things,
whether the action of the Borrower on the one hand or the Lenders and the
Agent on the other and the parties relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Borrower and the Lenders and the Agent agree that it would
not be just and equitable if contributions pursuant to this subsection
(iv) were determined by any method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (iv). The amounts paid or payable by an indemnified party as a
result of the losses, liabilities, claims, damages or expenses (or actions
in respect thereof) referred to above in this subsection (iv) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim, as the same are incurred.
-46-
<PAGE>
Neither the Agent nor any Lender, nor any of their partners, directors,
officers, agents or employees, shall be liable to the Borrower for any action
taken or omitted to be taken by it or any of them under or in connection with
any Loan Document, except for gross negligence or willful misconduct
attributable to such Person.
9.05. AMENDMENTS, WAIVERS AND CONSENTS. Any provision of this
Loan Agreement, the Notes, any of the Security Documents, the Collateral Trust
Agreement or the Letter Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the Required
Lenders (and, if the rights or duties of the Agent are affected thereby, by the
Agent); PROVIDED, that no such amendment, waiver or modification shall, unless
signed by all the Lenders (i) subject any Lender to any additional obligation,
(ii) reduce the principal of or rate of interest on any Loan or any fees
hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder, (iv) change the percentage of the
aggregate unpaid principal amount of the Notes, or the number of Lenders, which
shall be required for the Lenders or any of them to take any action under this
Section 9.05 or any other provision of this Loan Agreement, (v) release all or
substantially all of the collateral for the Loans or (vi) amend or waive the
provisions of Section 6.12 or this Section 9.05.
9.06. COUNTERPARTS. This Loan Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Loan Agreement to produce or
account for more than one such counterpart.
9.07. HEADINGS. The headings of the sections and subsections
hereof are provided for convenience only and shall not in any way affect the
meaning or construction of any provision of this Loan Agreement.
9.08. SURVIVAL OF INDEMNITIES. All indemnities set forth herein,
including, without limitation, in Section 9.04, shall survive the execution and
delivery of this Loan Agreement, the making of the Loan, and the repayment of
the Loan and other obligations hereunder.
-47-
<PAGE>
9.09. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS LOAN AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Nothing herein shall affect
the right of the Agent or any Lender to commence legal proceedings or to
otherwise proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Loan Agreement, any of
the Security Documents, the Collateral Trust Agreement or the Letter Agreement
brought in the courts referred to in subsection (a) hereof and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS LOAN AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
9.10. SEVERABILITY. If any provision of this Loan Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
9.11. ENTIRETY. This Loan Agreement together with the other Loan
Documents represents the entire agreement of the parties hereto and thereto, and
supersedes all prior agreements and understandings, oral or written, if any,
relating to the Loan Documents or the transactions contemplated herein;
PROVIDED, HOWEVER, that nothing contained herein shall affect any of the
obligations of the Borrower to Goldman, Sachs & Co. and Whitehall (and their
respective affiliates) under the letter of intent, dated November 17, 1994 among
the Borrower and Goldman, Sachs & Co. and Whitehall.
9.12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by the Borrower
-48-
<PAGE>
herein shall survive delivery of the Notes and the making of the Loans
hereunder.
-49-
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Loan Agreement to be duly executed under seal and delivered
as of the date first above written.
ROCKEFELLER CENTER PROPERTIES, INC.
By:/s/ RICHARD M. SCARLATA
-----------------------
Richard M. Scarlata
President and CEO
GOLDMAN SACHS MORTGAGE COMPANY, as Agent and as Lender
By: Goldman Sachs Real Estate Funding Corp.,
General Partner
By:/s/ STEVEN T. MNUCHIN
---------------------
Steven T. Mnuchin
President
Loan Commitment: $150,000,000
<PAGE>
SCHEDULE 3.01
FEES
The Agent shall be paid a fee in the amount of 4.75% of the
aggregate principal amount of the Loans.
<PAGE>
SCHEDULE 4.09
INDEBTEDNESS
<TABLE>
<CAPTION>
A. OUTSTANDING INDEBTEDNESS
<S> <C>
Current Coupon Convertible Debentures due 2000 $213,170,000
Zero Coupon Convertible Debentures due 2000 326,863,314(1)
Letter of Credit supporting Company's Commercial Paper
Program 200,000,000
Accrued interest payable in connection with Current Coupon
Convertible Debentures due 2000 50,954,187(2)
Dividends payable December 30, 1994 5,739,106(3)
Interest rate swaps (See Part C(i)) 19,046,677(4)
-------------------
$815,773,284
-------------------
-------------------
<FN>
(1) Accreted value at 12/31/94
(2) Accrued balance at 11/30/94
(3) Dividend declared 12/12/94
(4) Net mark-to-market settlement price at 11/30/94 as reported by SWAP
counterparties
</TABLE>
<TABLE>
<CAPTION>
B. OUTSTANDING INDEBTEDNESS TO BE REPAID ON OR AFTER CLOSING DATE
<S> <C>
Letter of Credit supporting Company's Commercial Paper
Program $200,000,000
Interest rate swaps (See Part C(ii)) 13,005,995
-------------------
$213,005,995
-------------------
-------------------
</TABLE>
1 of 3
<PAGE>
SWAPS
30-Nov-94
<TABLE>
<CAPTION>
Net
Financial Notional Maturity RCPI RCPI Receipt/
C(i) Institution Principal Date Receives Pays (Payment)
- -----------------------------------------------------------------------------------------------------------------------------------
SWAP # Float Rate Fixed Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C>
AIG Finan Pr 5 (30,000,000) 14-Jan-98 5.37500% 1,612,500 9.84000% (2,952,000) (1,339,500)
Barclay's 6 (25,000,000) 12-Mar-98 5.31250% 1,328,125 9.33000% (2,332,500) (1,004,375)
Barclay's 8 (50,000,000) 20-Apr-98 5.81250% 2,906,250 9.68500% (4,842,500) (1,936,250)
------------ --------- -------------------------
(105,000,000) 5.56845% 5,846,875 9.64476% (10,127,000) (4,280,125)
------------ --------- -------------------------
------------ --------- -------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
(ii) SWAPS to be settled on or after closing date
Liability swaps SWAP # Float Rate Fixed Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Chase Manhat 7 (20,000,000) 02-Feb-98 5.31250% 1,062,500 9.14000% (1,828,000) (765,500)
Chase Manhat 1 (30,000,000) 15-Oct-99 4.87500% 1,462,500 9.98000% (2,994,000) (1,531,500)
Chase Manhat 2 (30,000,000) 15-Oct-99 4.87500% 1,462,500 9.98000% (2,994,000) (1,531,5000)
Chase Manhat 3 (20,000,000) 05-Oct-99 5.06250% 1,012,500 9.84000% (1,968,000) (955,500)
Chemical Ban 9 (50,000,000) 10-Jun-99 5.81250% 2,906,250 9.73600% (4,868,000) (1,961,750)
Bank of Amer 4 (30,000,000) 30-Jun-97 5.25000% 1,575,000 9.84190% (2,952,570) (1,377,570)
------------ --------- -------------------------
(180,000,000) 5.26736% 9,481,250 9.78032% (17,604,570) (8,123,320)
------------ --------- -------------------------
------------ --------- -------------------------
<CAPTION>
Mark-to
Financial Net Market
C(i) Institution Rate Floating Rate Re-sets 30-Nov-94
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
AIG Finan Pr 4.46500% 1/14, 7/14 (2,040,072)
Barclay's 4.01750% 3/12, 9/12 (1,231,010)
Barclay's 3.87250% 4/20, 10/20 (2,769,600)
-----------
4.07631% (6,040,682)
-----------
-----------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
(ii) SWAPS to be settled on or after closing date
<S> <C> <C> <C> <C>
Chase Manhat 3.82750% 2/2, 8/2 (954,295)
Chase Manhat 5.10500% 6/21, 12/21 (3,028,516)
Chase Manhat 5.10500% 6/22, 12/22 (3,025,333)
Chase Manhat 4.77750% 6/29, 12/29 (1,853,551)
Chemical Ban 3.92350% 4/20, 10/20 (3,581,000)
Bank of Amer 4.59190% 1/12, 7/12 (1,906,000)
-----------
4.51296% $14,348,695)
-----------
-----------
</TABLE>
2 of 3
<PAGE>
(ii) SWAPS to be settled on or after closing date (cont'd.)
(cont.)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Financial Notional RCPI Net Receipt/
Institution Principal Maturity Date Receives RCPI Pays (Payment)
- ---------------------------------------------------------------------------------------------------------------------------------
SWAP # Fixed Rate Float Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Chemical Ban 2 5,000,000 30-Nov-95 9.70000% 485,000 5.93750% (296,875) 188,125
Chemical Ban 4 5,000,000 29-Mar-96 9.23000% 461,500 5.25000% (262,500) 199,000
Chemical Ban 3 5,000,000 15-Sep-96 9.24500% 462,250 5.06250% (253,125) 209,125
Bank of Amer 8 5,000,000 15-Feb-96 9.43000% 471,500 5.81250% (290,625) 180,875
Bank of Amer 5 5,000,000 19-Sep-96 9.47000% 473,500 5.06250% (253,125) 220,375
Bank of Amer 7 5,000,000 30-Sep-97 9.56000% 478,000 5.26560% (263,280) 214,720
Bank of Amer 6 5,000,000 15-Apr-98 9.58700% 479,350 5.62500% (281,250) 198,100
---------- --------- -------------------------
35,000,000 9.46029% 3,311,100 5.43080% (1,900,780) 1,410,320
---------- --------- -------------------------
---------- --------- -------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------
Mark-to
Financial Market
Institution Net Rate Floating Rate Re-sets 30-Nov-94
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Chemical Ban 3.76250% 2/16, 5/16, 8/16, 11/16 113,700
Chemical Ban 3.98000% 3/29, 6/29, 9/29, 12/29 161,000
Chemical Ban 4.18250% 3/15, 6/15, 9/15, 12/15 135,000
Bank of Amer 3.61750% 2/15, 5/15, 8/15, 11/15 245,000
Bank of Amer 4.40750% 3/21, 6/21, 9/21, 12/21 191,000
Bank of Amer 4.29440% 3/30, 6/30, 9/30, 12/30 241,000
Bank of Amer 3.96200% 1/17, 4/17, 7/17, 10/17 256,000
-----------
4.02949% 1,342,700
-----------
SWAPS to be settled on or after closing date (13,005,995)
-----------
Total at 11/30/94 (19,046,677)
-----------
-----------
</TABLE>
3 of 3
<PAGE>
SCHEDULE 4.10
Litigation
Bear Stearns & Co. Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation have threatened to initiate litigation against the Borrower to
recover an investment banking fee in the amount of approximately $4 million
claimed to be due from the Borrower to such firms.
<PAGE>
SCHEDULE 4.11
Material Agreements and
Negotiations with RCP or RCPA
Material Agreements -- No exceptions
Negotiations with RCP or RCPA -- The Borrower has requested the consent
specified in Section 3.01(k) and discussions
with respect to such consent are ongoing.
<PAGE>
SCHEDULE 5.05
Insurance
The Borrower's Directors' and Officers' Insurance Policy contains an
endorsement (No. 7) reading as follows:
It is agreed that the Insurer shall not be liable to make any payment for
Loss in connection with any claim made against the Insureds brought by or
on behalf of Rockefeller Group, Inc., any of its subsidiaries (directly or
indirectly owned), its management and all entities controlled by or
affiliated with Rockefeller Group, Inc. and the management thereof.
<PAGE>
EXHIBIT A TO
LOAN AGREEMENT
<PAGE>
EXHIBIT A
FLOATING RATE PROMISSORY NOTE
$___________ December __, 1994
ROCKEFELLER CENTER PROPERTIES, INC., a Delaware corporation (the
"Borrower"), for value received, hereby promises to pay to the order of
______________ (the "Lender"), to the account of ________________________ at
__________________, in lawful money of the United States, the principal sum of
$____________ on December 31, 2000. This Note shall bear interest on the unpaid
principal amount hereof, payable at the rates and on the dates set forth in the
Loan Agreement (as hereinafter defined).
Except as provided in the Loan Agreement, if this Note becomes due and
payable on a day which is not a Business Day (as defined in the Agreement), the
maturity hereof shall be extended to the next succeeding Business Day, and
interest shall be payable hereon at the rate specified in the Agreement during
such extension.
Except as provided in the Loan Agreement, the Borrower waives presentment,
demand, protest or other notice of any kind.
This Note is one of the Notes referred to in the Loan Agreement, dated as
of December __, 1994, among the Borrower, the Lenders parties thereto and
Goldman Sachs Mortgage Company, as Agent (the "Loan Agreement"), and is entitled
to the benefits provided therein. This Note is subject to prepayment in whole
or in part and its maturity is subject to acceleration upon the terms provided
in the Loan Agreement.
ROCKEFELLER CENTER PROPERTIES, INC.
By
-----------------------------------
A-1
<PAGE>
EXHIBIT B TO
LOAN AGREEMENT
<PAGE>
EXHIBIT B
OFFICER'S CERTIFICATE
I, _________________________, ________________ of Rockefeller Center
Properties, Inc. (the "Borrower"), hereby certify that, to the best of my
knowledge, with respect to that certain Loan Agreement among the Borrower, the
Lenders parties thereto and Goldman Sachs Mortgage Company, as Agent, dated as
of December __, 1994, as of the date hereof no Default or Event of Default has
occurred and is continuing.
This the ________ day of _______________, 19___.
-------------------------
Name:
--------------------
Title:
-------------------
B-1
<PAGE>
EXHIBIT C TO
LOAN AGREEMENT
<PAGE>
Exhibit C
Form of Assignment of Mortgages
See Exhibit A to the Collateral Trust Agreement
(filed as Exhibit 4.10 to this 8-K).
<PAGE>
EXHIBIT D TO
LOAN AGREEMENT
<PAGE>
Exhibit D
Form of Collateral Trust Agreement
See Exhibit 4.10 to this Form 8-K
<PAGE>
EXHIBIT E TO
LOAN AGREEMENT
<PAGE>
Exhibit E
Form of Letter Agreement
See Exhibit E to Collateral Trust Agreement
(filed as Exhibit 4.10 to this Form 8-K)
<PAGE>
EXHIBIT F TO
LOAN AGREEMENT
<PAGE>
Exhibit F
Form of Registration Rights Agreement
See Exhibit 4.11 to this Form 8-K
<PAGE>
EXHIBIT 99.5
[ROCKEFELLER CENTER PROPERTIES, INC. LOGO]
FOR IMMEDIATE RELEASE
ROCKEFELLER CENTER PROPERTIES, INC.
ANNOUNCES CLOSING OF GOLDMAN, SACHS & CO. INVESTMENT
New York, N.Y. -- December 29,1994 -- Rockefeller Center Properties, Inc. (RCPI)
announced today that it had closed the previously announced transaction under
which Goldman Sachs Mortgage Company and Whitehall Street Real Estate Limited
Partnership V (Whitehall), an investment vehicle managed by Goldman, Sachs &
Co., agreed to purchase from RCPI $225 million of long-term debt. Goldman Sachs
Mortgage Company has acquired from RCPI $150 million of floating rate debt due
December 31, 2000 which will bear interest at LIBOR plus 4 percent and Whitehall
has acquired from RCPI $75 million of 14 percent debentures due December 31,
2007. RCPI has also issued to Whitehall warrants to acquire 4,155,927 shares of
newly issued common stock exercisable at $5 per share, and 5,349,541 stock
appreciation rights convertible into debentures or warrants.
Richard M. Scarlata, President & Chief Executive Officer of RCPI, reported that
the Company had received net proceeds of approximately $214.4 million, and had
used the proceeds to retire commercial paper borrowings of $193.1 million; to
retire, at a cost of approximately $10.6 million, interest rate swaps with a net
notional principal of $145 million; and to pay approximately $2.1 million of
fees and expenses incurred in connection with the review of its capital
structure, which has now been concluded. The balance of the proceeds of this
transaction will be applied by the Company to general corporate purposes.
"We are pleased to have concluded this important transaction for our Company
before the end of the year, allowing RCPI to enter 1995 on a strong financial
footing," said Mr. Scarlata.
The Company also announced that Claude M. Ballard, Jr. today stepped down as
Chairman and Director of the Company, and Dr. Peter D. Linneman, Director of the
Wharton Real Estate Center and a professor of real estate and finance at The
Wharton School of the University of Pennsylvania, had been elected as Chairman.
Dr. Linneman has been a Director of the Company since April 1993.
The Company also announced the election of Daniel M. Neidich, a partner of
Goldman Sachs to the Board of Directors of RCPI pursuant to the agreement
between the Company and Goldman Sachs entitling Goldman Sachs to designate one
member of RCPI's Board of Directors. Mr. Neidich will fulfill the remainder of
Mr. Ballard's term, which expires at RCPI's 1996 Annual Meeting of Stockholders.
- more -
<PAGE>
Page 2
RCPI, which commenced operations on September 19, 1985, was formed to permit
public investment in Rockefeller Center. RCPI's principal asset is a $1.3
billion participating mortgage loan to the owners of Rockefeller Center with an
option, exercisable on December 31, 2000, to convert the loan into a 71.5
percent ownership interest in Rockefeller Center. As of December 28, there are
38,260,704 shares outstanding. The Company's common stock is listed on the
New York Stock Exchange under the symbol "RCP".
Company Contact:
Stephanie Leggett Young
Rockefeller Center Properties, Inc.
(212) 698-1440
