FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report June 9, 1994
Rockefeller Center Properties, Inc.
(Exact name of registrant as specified in its charter)
Delaware 13-3280472
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
1270 Avenue of the Americas, New York, N.Y. 10020
(Address of principal executive offices) (Zip Code)
(212) 698-1440
(Registrant's telephone number, including area code)
(Former name, former address and former fiscal year, if changed
since last report)
Item 5. Other Events.
On May 20, 1994, Rockefeller Center Properties and RCP
Associates (collectively, the "Borrowers"), Rockefeller Center
Properties, Inc. (the "Company") and Mellon Bank, N.A. entered
into an escrow agreement (the "Escrow Agreement") pursuant to
which the Borrowers have agreed to deposit from time to time in
an escrow account cash and/or eligible securities so that the
aggregate fair market value of the cash and/or eligible
securities on deposit at any time is at least $46,500,000. The
Company may withdraw the cash and/or eligible securities
deposited in this escrow account at any time or from time to time
after (a) the occurrence and during the continuation of an Event
of Default under the loan agreement dated as of September 19,
1985, as amended, between the Company and the Borrowers (the
"Loan Agreement") or (b) November 30, 1994, if the interest
payment due under the Loan Agreement on November 30, 1994 has not
been paid when due. The Escrow Agreement shall terminate upon
the earlier of (a) payment in full, when due, of the interest
payment due under the Loan Agreement on November 30, 1994 or (b)
payment in full of all principal of and interest on the Loan and
all other amounts owing by the Borrowers under the Loan
Agreement.
Item 7. Exhibits.
(99.1) Conformed copy of the Escrow and Collateral
Security Agreement dated May 20, 1994
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused report to be signed
on its behalf by the undersigned hereunto duly authorized.
ROCKEFELLER CENTER PROPERTIES, INC.
Date: June 9, 1994 By: /s/RICHARD M. SCARLATA
Richard M. Scarlata
Senior Vice President
Finance Administration
(Principal Financial Officer and
Principal Accounting Officer)
This ESCROW AND COLLATERAL SECURITY AGREEMENT, dated
as of May 20, 1994 (this "Agreement"), is among Rockefeller
Center Properties, a New York general partnership, and RCP
Associates, a New York limited partnership (collectively, the
"Borrowers"), Rockefeller Center Properties, Inc., a Delaware
corporation (the "Lender") and Mellon Bank, N.A., a national
banking association, as escrow and collateral security agent
(the "Escrow Agent").
RECITALS
A. The Borrowers and the Lender are parties to a
Loan Agreement, dated as of September 19, 1985, as amended by a
Consent and Agreement, dated as of December 1, 1988, the Second
Amendment to the Loan Agreement, dated April 6, 1993, the Third
Amendment to the Loan Agreement, dated as of April 6, 1993 and
the Fourth Amendment to the Loan Agreement, dated February 22,
1994 (as amended, the "Loan Agreement"). Capitalized terms not
otherwise defined herein shall have the meanings ascribed to
them in the Loan Agreement.
B. The Borrowers have agreed to provide additional
security for the payment of the interest due November 30, 1994
under the Notes.
C. The Escrow Agent has agreed to act as escrow and
collateral security agent on behalf of the Lender with respect
to this additional security, on the terms and conditions set
forth herein.
AGREEMENT
In consideration of the mutual agreements hereinafter
contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows.
Section 1. Definitions. (a) All capitalized terms
used herein and not defined herein shall have the meaning
ascribed to them in the Loan Agreement.
(b) As used in this Agreement, the following
terms shall have the meaning indicated below:
"Account Statement" has the meaning ascribed to it in
Section 2(c)(ii).
"Collateral" has the meaning ascribed to it in
Section 3.
"Eligible Securities" means securities which are:
(a) debt obligations with initial or
remaining maturities of 270 days or less which
either (i) have a short-term credit rating of A-1
or P-1 (or the equivalent) as rated by either S&P
or Moody's or (ii) are issued by obligors whose
long-term debt obligations have a credit rating
of A (or the equivalent) or better as rated by
two Nationally Recognized Statistical Rating
Organizations (one of which shall be either
Moody's or S&P);
(b) debt obligations with remaining
maturities (calculated from the date when such
debt obligation is to be deposited in the Escrow
Account) of less than five years (but not having
initial or remaining maturities of 270 days or
less) issued by obligors whose long-term debt
obligations have a credit rating of A2 or A (or
the equivalent) or better as rated by two
Nationally Recognized Statistical Rating
Organizations (one of which shall be either
Moody's or S&P); or
(c) debt obligations with remaining
maturities (calculated from the date when each
such debt obligation is to be deposited in the
Escrow Account) of five years or greater issued
by obligors whose long-term debt obligations have
a credit rating of Aa2 or AA (or the equivalent)
or better as rated by two Nationally Recognized
Statistical Rating Organizations (one of which
shall be either Moody's or S&P).
If either Moody's or S&P is not then in the
business of rating the applicable security in the Escrow
Account, the Borrowers may replace Moody's or S&P, as the
case may be, with one other Nationally Recognized
Statistical Rating Organization then rating such security.
"Escrow Account" means the escrow account
established pursuant to Section 2(a).
"Escrow Fund" has the meaning ascribed to it in
Section 2(a).
"Escrow Value" means at any time the sum of
(i) the amount of cash held in the Escrow Account at such
time and (ii) the fair market value of Eligible Securities
held in the Escrow Account at such time as determined by
the Escrow Agent, net of any income earned with respect to
each of the foregoing.
"Indemnified Person" has the meaning ascribed to
it in Section 6.
"Moody's" shall mean Moody's Investor's Service,
Inc.
"Nationally Recognized Statistical Rating
Organization" means any entity recognized as such by the
Division of Market Regulation of the Securities and
Exchange Commission for the purposes of net capital rules
applicable to brokers.
"Resolution Notice" has the meaning ascribed to it in
Section 2(f).
"S&P" shall mean Standard & Poor's Corporation.
Section 2. Escrow.
(a) Establishment of Escrow Account. There is hereby
established with the Escrow Agent a segregated trust account
(the "Escrow Account") designated "Mellon Bank, N.A., as Escrow
and Collateral Security Agent -- Notes due December 31, 2007
issued by Rockefeller Center Properties and RCP Associates,
November 1994 interest payment" which account shall be
maintained by the institutional trust department of the Escrow
Agent. The Escrow Account shall constitute a single non-
interest bearing corporate trust account held by the Escrow
Agent on behalf and solely for the benefit of the Lender
pursuant to this Agreement. The Eligible Securities and cash
deposited by the Borrowers from time to time in the Escrow
Account, and (subject to Section 2(d)(i)), all income thereon
deposited in the Escrow Account (collectively, the
"Escrow Fund") shall be held by the Escrow Agent in the Escrow
Account, on the terms and subject to the conditions of this
Agreement. With respect to the Escrow Account, the Lender
shall be entitled to the priorities afforded to the
beneficiaries of a trust account as provided by applicable law.
(b) Deposits in Escrow Account. The Escrow Agent
hereby acknowledges receipt from the Borrowers of the Eligible
Securities listed on Exhibit A, together with appropriate
instruments of transfer, duly executed in blank, which property
shall be deposited by the Escrow Agent in the Escrow Account.
The Borrowers shall, on or prior to the 15th day of each
calendar month, deposit in the Escrow Account cash and/or
Eligible Securities with an aggregate fair market value (as
determined by the Borrowers in good faith) equal to the
deficiency, if any, between the sum of $46,500,000 and the
Escrow Value of the Escrow Fund, as shown on the most recent
Account Statement.
(c) Investment of the Escrow Fund; Account Statement;
Taxes.
(i) The proceeds of amounts deposited in the
Escrow Account and other amounts from time to time on deposit
in the Escrow Account shall be invested in Eligible Securities
as directed in writing by the Borrowers; provided, however,
that if the Escrow Agent does not receive investment
instructions from the Borrowers, the Escrow Agent is hereby
authorized to invest the Escrow Fund in the Laurel Treasury II
Money Market Fund, a portfolio of The Laurel Funds, Inc., for
which the Borrowers have received a prospectus, and the Escrow
Agent states that The Laurel Funds, Inc. (A) is a registered
investment company for which the Escrow Agent or its affiliate
performs custodian, transfer agent and investment advisor
services for a fee, (B) is not sponsored by the Escrow Agent or
any of its affiliates, (C) is not endorsed or guaranteed by,
and does not constitute an obligation of, the Escrow Agent or
any of its affiliates, (D) is not insured by the Federal
Deposit Insurance Corporation, and (E) is distributed by
Russell Funds Distributors, Inc.; and provided, further, that
upon the occurrence and during the continuance of an Event of
Default, such proceeds and other amounts on deposit in the
Escrow Account shall be invested in Eligible Securities as
directed in writing by the Lender; and if no such directions by
the Lender are received with respect to any such proceeds and
other amounts held in the Escrow Account, such proceeds and
other amounts shall not be invested. The Escrow Agent shall be
under no obligation, in directing the investment of amounts
held in the Escrow Account, to maximize the return on such
amounts, and, except as provided in the foregoing proviso, the
Borrowers shall have the right to direct the investment in non-
interest bearing investments so long as such investments are
Eligible Securities. All investments of amounts held in the
Escrow Account shall be made in the name of the Escrow Agent
(or a depositary or a clearing house with which the Escrow
Agent has an account or their respective nominees) as escrow
and collateral agent for the Lender and held by, or on behalf
of, the Escrow Agent in the Escrow Account. All investment
earnings on amounts or Eligible Securities held in the Escrow
Account shall be distributed from time to time as provided in,
and subject to the requirements of, paragraphs (d) and (e) of
this Section 2.
(ii) Within five Business Days following the
last day of each calendar month, commencing with the first
calendar month during which cash and/or Eligible Securities
have been deposited in the Escrow Account, the Escrow Agent
shall deliver to the Borrowers and the Lender a statement (the
"Account Statement") which sets forth the Escrow Value of the
Escrow Fund as of such last day and the income earned with
respect to the Escrow Fund.
(iii) All taxes in respect of income of the
Escrow Fund shall be the obligation of and shall be paid when
due by the Borrowers.
(d) Withdrawals from Escrow Account by the Borrowers.
(i) So long as (a) the Lender has not notified
the Escrow Agent that an Event of Default has occurred and is
continuing and (b) the Borrowers shall have complied with their
obligations under Section 2(b) hereof, the Borrowers shall be
entitled to retain all income received with respect to the
Escrow Fund, and such income shall be remitted to the Borrowers
on a daily basis or at such other times as the Borrowers may
otherwise direct. If the Lender notifies the Escrow Agent that
an Event of Default has occurred and is continuing or if the
Borrowers shall not have complied with their obligations under
Section 2(b), income received with respect to the Escrow Fund
shall be retained by the Escrow Agent in the Escrow Account and
be reinvested in accordance with Section 2(c)(i).
(ii) So long as the Lender has not notified the
Escrow Agent that an Event of Default has occurred and is
continuing, the Borrowers shall be entitled to withdraw cash
and/or Eligible Securities having a fair market value, as
determined by the Escrow Agent, equal to the positive
difference between the Escrow Value of the Escrow Fund, as
shown on the most recent Account Statement, and the sum of
$46,500,000, less an amount equal to the fair market value, as
determined by the Escrow Agent, of any withdrawals pursuant to
this Section 2(d)(ii) since the date of the most recent Account
Statement, by delivering to the Escrow Agent and the Lender a
disbursement instruction in the form of Exhibit B, duly
executed by a Responsible Officer of a general partner of each
of the Borrowers. If within three Business Days after receipt
by the Escrow Agent of such disbursement instruction, the
Lender shall not have objected to such disbursement instruction
in writing to the Escrow Agent and the Borrowers, the Escrow
Agent shall promptly deliver to the Borrowers or the Person or
Persons designated in such instruction, against receipt, but
without recourse, representation or warranty whatsoever, such
cash and/or Eligible Securities (as directed by the Borrowers)
deposited in the Escrow Account with an Escrow Value equal to
such positive difference, net of such withdrawals.
(iii) So long as the Lender has not notified the
Escrow Agent that an Event of Default has occurred and is
continuing, the Borrowers shall be entitled to direct the
Escrow Agent to sell, as directed by the Borrowers, all or any
portion of the Escrow Fund and to direct the Escrow Agent to
use portion(s) of the proceeds to pay the Lender the November
30, 1994 installment of interest under the Notes.
(iv) So long as the Lender has not notified the
Escrow Agent that an Event of Default has occurred and is
continuing, the Borrowers shall be entitled to substitute
(x) for cash on deposit in the Escrow Account, Eligible
Securities having a fair market value, as determined by the
Escrow Agent, equal to the amount of cash to be withdrawn and
paid to the Borrowers and (y) for Eligible Securities on
deposit in the Escrow Account, cash and/or other Eligible
Securities having a fair market value, as determined by the
Escrow Agent, equal to the fair market value, as determined by
the Escrow Agent, of the Eligible Securities to be withdrawn
and delivered to the Borrowers, in any such case, by delivering
to the Escrow Agent and the Lender a substitution instruction
in the form of Exhibit C, duly executed by a Responsible
Officer of a general partner of each of the Borrowers. Upon
receipt of (I) such substitution instruction and (II) the
substitute Eligible Securities or cash, the Escrow Agent shall
promptly deliver to the Borrowers or the Person or Persons
designated in such instruction, against receipt, but without
recourse, representation or warranty whatsoever, such cash
and/or Eligible Securities withdrawn from the Escrow Account
(as directed by the Borrowers).
(v) Upon delivery by the Borrowers to the Escrow
Agent of a disbursement instruction in the form of Exhibit D,
duly executed by the general partner of each of the Borrowers
and duly confirmed by an authorized officer of the Lender
(which the Lender hereby agrees to execute upon the earlier of
(x) payment in full of all principal of and interest on the
Loan, and all other amounts owing by the Borrowers, under the
Loan Agreement or (y) the payment in full when due of the
interest payment due Lender on November 30, 1994), the Escrow
Agent shall promptly deliver to the Borrowers, against receipt,
but without recourse, representation or warranty whatsoever,
all securities, monies and other property then held in the
Escrow Account.
(e) Withdrawal from Escrow Account by the Lender. At
any time or from time to time (i) after the occurrence and
during the continuance of any Event of Default as a result of
which the Notes have been accelerated or have otherwise become
due and payable in full prior to their Maturity Date or (ii) if
the interest payment due on the Notes on November 30, 1994 has
not been paid when due, the Escrow Agent shall, at the
direction of the Lender as provided herein, deliver to the
Lender cash and/or Eligible Securities on deposit in the Escrow
Account up to the amount which remains due and payable and
unpaid under the Notes for application by the Lender in payment
of the obligations of the Borrowers under the Notes and the
other Loan Documents in the manner provided in Section 5.06 of
the Mortgages or the amount of the November 30, 1994 interest
payment which remains payable but unpaid, as the case may be.
Within three days after delivery by the Lender to the Escrow
Agent of a disbursement instruction in the form of Exhibit E (a
copy of which shall have been sent concurrently to the
Borrowers), duly executed by a Responsible Officer of the
Lender and stating that (A) an Event of Default has occurred
and is continuing and the Notes have been accelerated or (B)
that the November 30, 1994 interest payment shall not have been
paid in full when due, the Escrow Agent shall, at the request
of the Lender, promptly liquidate all Eligible Securities held
in the Escrow Account and deliver to the Lender, against
receipt, but without recourse, representation or warranty
whatsoever, all proceeds therefrom and all cash then held in
the Escrow Account for application in accordance with this
Agreement and the Loan Agreement.
(f) Objections to Disbursement Requests. If the
Escrow Agent receives timely notice from the Lender objecting
to a disbursement request by the Borrowers under Section
2(d)(ii), the Escrow Agent shall not honor such disbursement
request, and shall continue to hold the Escrow Fund in
accordance with the applicable provisions of this Agreement,
unless and until the Escrow Agent receives a notice (the
"Resolution Notice") signed by both parties or a final order
signed by a court of competent jurisdiction authorizing a
disbursement, whereupon the Escrow Agent shall follow the
Resolution Notice or such court order. However, the Escrow
Agent shall also have the right, at any time after a claim of
entitlement is disputed, to deposit the Escrow Fund and all
undisbursed interest and dividends thereon with a court having
jurisdiction and petition the court to interplead the Lender
and the Borrowers for the purpose of determining the rights of
the parties. Upon such deposit and notice thereof to the
Lender and the Borrowers, the Escrow Agent shall be relieved
and discharged of all further obligations and responsibilities
hereunder.
(g) Termination of Agreement. This Agreement shall
terminate on the earliest of the date on which the Notes have
been paid in full, the date on which the Escrow Fund is
delivered to the Borrower in accordance with Section 2(d)(v) or
to the Lender in accordance with Section 2(e) or the date on
which the Escrow Agent receives a notice of termination signed
by a Responsible Officer of the Lender and a general partner of
each of the Borrowers; provided that the obligations of the
Borrowers under Sections 6 and 7, and the benefits afforded to
the Escrow Agent under Section 6, shall survive any such
termination. Unless the Lender has notified the Escrow Agent
that one of the events described in Section 2(e) hereof has
occurred and is continuing, the Escrow Agent shall on the date
of termination of this Agreement deliver to the Borrowers the
entire Escrow Fund.
Section 3. Grant of Security Interest.
(a) Grant of Security Interest. The Borrowers hereby
pledge, transfer and assign to the Lender, and grant to the
Lender, a first priority security interest in and to, and a
first lien upon, all of the Borrowers' right, title and
interest in, to and under all cash, property or securities
transferred to or deposited in the Escrow Account from time to
time by the Borrowers in accordance with the provisions hereof,
all investments and securities held in the Escrow Account in
accordance with Section 2, and any and all proceeds of the
foregoing (collectively, the "Collateral"), subject, however,
to the release to the Borrowers of Collateral from such Escrow
Account pursuant to Section 2(d) hereof. The pledge,
assignment and grant of a security interest in the Collateral
made pursuant to this Agreement shall secure (i) the payment of
all indebtedness evidenced by the Notes, (ii) the payment of
all other obligations secured by the Mortgages and the other
Loan Documents and (iii) the performance of the covenants and
agreements contained in the Loan Agreement and this Agreement.
(b) Custody of Collateral. The Borrowers agree to
deliver to the Escrow Agent, as custodian acting on behalf of
the Lender (x) possession of any certificated securities or
money constituting Collateral, together with appropriate
undated stock and bond powers duly executed in blank and
(y) such documentation as may be reasonably requested by the
Lender or the Escrow Agent to effect the transfer and pledge
of, security interest in, and sale or transfer of, any
uncertificated securities constituting Collateral and (z) an
instrument stating that such Collateral is delivered in pledge
and subject to the security interest provided in this
Agreement.
(c) Preservation of Collateral. The Borrowers (and,
if necessary, the Escrow Agent) agree to do any and all acts
and execute and deliver any and all documents the Lender may
reasonably request to maintain, protect and perfect the
Borrowers' rights in the Collateral and the Lender's lien on
the Collateral provided hereunder as a fully perfected, first
priority security interest in the Collateral, and without
limiting the generality of the foregoing, the Borrowers:
(i) will not create or suffer to exist any lien
whatsoever (other than the lien of the Lender granted
by this Agreement) on or with respect to the
Collateral;
(ii) will defend the Collateral against all
liens, claims and demands adverse to the Lender and
its lien hereunder;
(iii) will not, after the occurrence of any
Event of Default and for so long as such Event of
Default exists, sell, lease, exchange, hypothecate,
assign, loan, deliver or otherwise dispose of the
Collateral or any part thereof without the prior
written consent of the Lender;
(iv) will execute and deliver all UCC financing
statements, continuation statements or other documents
requested by the Lender to perfect or maintain
perfection of its lien on the Collateral under this
Agreement; and
(v) will pay or cause to be paid any and all
recording, filing, stamp or other fees and expenses
incurred or required to be paid under any applicable
law, this Agreement or the Loan Agreement in order to
perfect or maintain perfection of the Lender's lien on
the Collateral under this Agreement, promptly on
demand by the Lender, which fees and expenses shall be
deemed obligations secured by the Collateral until so
paid.
(d) Further Assurances Regarding Collateral. At any
time and from time to time hereafter at the request of the
Lender, the Borrowers shall execute and deliver to the Lender
such documentation as may be reasonably requested by the Lender
to perfect its security interest in and pledge of the
Collateral (including without limitation, one or more financing
statements and continuation statements pursuant to the UCC in
form sufficient to perfect a security interest in such of the
Collateral as to which a filing is effective to perfect a
security interest) and will pay the costs of preparing and
filing any and all such documents in all public offices
wherever filing is necessary. The Lender may prepare and file
financing statements and continuation statements signed only by
the Lender covering the Collateral in all jurisdictions where
that is permitted by the UCC. The Borrowers hereby agree that
this Agreement (or a photocopy of it) may be filed or recorded
as a financing statement to the extent permitted by applicable
law.
Section 4. Expenses. The Borrowers hereby agree to
pay or reimburse the Escrow Agent for all reasonable out-of-
pocket costs and expenses of the Escrow Agent, in connection
with the negotiation, preparation, execution and delivery of
this Agreement and any amendment, modification or waiver of any
of the terms of this Agreement. The Escrow Agent agrees that
amounts owed to the Escrow Agent hereunder shall not be paid
from, or offset against, the Escrow Fund.
Section 5. Escrow Agent.
(a) Appointment of Escrow Agent. Each of the
Borrowers and the Lender hereby irrevocably appoints and
authorizes the Escrow Agent to act as escrow and collateral
agent for the Lender hereunder with such powers as are
specifically delegated to the Escrow Agent by the terms of this
Agreement, together with such other powers as are reasonably
incidental thereto. The Escrow Agent (which term as used in
this sentence shall include reference to its affiliates and its
own and its affiliates' officers, directors, employees and
agents) hereby accepts its duties as escrow and collateral
agent hereunder on behalf and for the benefit of the Lender on
the terms and subject to the conditions set forth herein;
provided, however, that the Escrow Agent (i) shall have no
duties or responsibilities, except those expressly set forth in
this Agreement, and shall not by reason of this Agreement be a
trustee for either of the Borrowers; (ii) shall not be
responsible to either Borrower for any recitals, statements,
representations or warranties contained in this Agreement or in
any other document referred to or provided for herein, or in
any certificate or other document referred to or provided for
in, or received by any of them under, this Agreement or any
other such document or for the failure by either Borrower or
any other person or entity (other than the Escrow Agent) to
perform any of its obligations hereunder or thereunder (whether
or not the Escrow Agent shall have any knowledge thereof);
(iii) shall not be responsible for any loss of the cash,
securities or other properties held by the Escrow Agent
hereunder or in the Escrow Account resulting from the
investment or payment thereof in accordance with the terms of
this Agreement; and (iv) shall not be responsible for any
action taken or omitted to be taken by it hereunder or any
document or instrument referred to or provided for herein or
therein or in connection herewith or therewith, except for its
own gross negligence or willful misconduct.
(b) Reliance by Escrow Agent. The Escrow Agent shall
be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, facsimile
transmission, telegram or cable) reasonably believed by it to be
genuine and correct and to have been signed or sent by or on
behalf of the proper person or entity or persons or entities,
and upon advice and statements of legal counsel of nationally
recognized standing, independent accountants and other experts
selected by the Escrow Agent. As to any matters not expressly
provided for by this Agreement, the Escrow Agent shall in all
cases be fully protected in acting, or in refraining from
acting, hereunder or thereunder in accordance with instructions
given by the Borrowers and the Lender.
(c) Other Rights. Mellon Bank, N.A. and any
successor thereto acting as Escrow Agent, and its affiliates
may (without having to account therefor to either Borrower)
accept deposits from, lend money to and generally engage in any
kind of banking, trust or other business with either Borrower
(and its subsidiaries and affiliates) as if it were not acting
as the Escrow Agent.
(d) Resignation or Removal of Escrow Agent. Subject
to the appointment and acceptance of a successor Escrow Agent
as provided below, the Escrow Agent may resign at any time by
giving notice thereof to the Borrowers and the Lender, and the
Escrow Agent may be removed at any time with or without cause
by the Borrowers. Upon any such resignation or removal, the
Borrowers shall have the right to appoint a successor Escrow
Agent, which shall be a Qualified Institution. If no successor
Escrow Agent shall have been so appointed by the Borrowers and
shall have accepted such appointment within 30 days after the
retiring Escrow Agent's giving of notice of resignation or the
Borrowers' removal of the retiring Escrow Agent, then the
retiring Escrow Agent, on behalf of the Borrowers, may appoint
a successor Escrow Agent, which shall be a Qualified
Institution. If the Escrow Agent is unable to locate a
Qualified Institution to act as successor Escrow Agent
hereunder after using its best efforts to do so, the Escrow
Agent shall so notify the Borrowers and the Lender. If the
Borrowers and the Lender are unable to locate an Escrow Agent
acceptable to them both within 15 days after receipt of said
notification, the Escrow Agent may place the Escrow Fund and
all undisbursed interest and dividends thereon at the disposal
of a court and petition the court to interplead the Borrowers
and the Lender for the purpose of determining the rights of the
parties. Upon the acceptance of any appointment as Escrow
Agent hereunder by a successor Escrow Agent, such successor
Escrow Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring
Escrow Agent, and the retiring Escrow Agent shall be discharged
from its duties and obligations hereunder arising after such
acceptance of appointment. After any retiring Escrow Agent's
resignation or removal hereunder as Escrow Agent, the
provisions of this Section 5 and Section 6 hereof shall
continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the
Escrow Agent.
Section 6. Indemnification. (a) The Borrowers agree
to indemnify and hold harmless the Escrow Agent and its
affiliates, their respective directors, officers, agents,
employees and representatives and each other person or entity,
if any, controlling the Escrow Agent or any of its affiliates
(the Escrow Agent and each such person and entity being
referred to as an "Indemnified Person"), to the fullest extent
permitted by applicable law, from and against any losses,
claims, damages or liabilities (or actions, including, without
limitation, shareholders' actions in respect thereof) related
to or arising out of this Agreement or the Escrow Agent's role
in connection herewith, and will reimburse each Indemnified
Person, subject to Section 6(b), for all expenses (including,
without limitation, reasonable counsel fees and disbursements)
incurred by such Indemnified Person in connection with
investigating, preparing or defending any such action or claim,
whether or not in connection with pending or threatened
litigation in which any Indemnified Person is a party. The
Borrowers will not, however, be responsible for any losses,
claims, damages, liabilities or expenses which result from
(i) the gross negligence or willful misconduct of any
Indemnified Person, (ii) breaches of law or contract by any
Indemnified Person or (iii) tortious conduct of any Indemnified
Person to third parties. The foregoing agreement shall be in
addition to any rights that any Indemnified Person may have at
common law or otherwise, including, but not limited to, any
right to contribution.
(b) In case any proceeding (including any
governmental investigation) shall be instituted involving an
Indemnified Person, such Indemnified Person shall promptly
notify the Borrowers in writing and the Borrowers, upon request
of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Borrowers may designate
in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person
unless the Borrowers and such Indemnified Person shall have
mutually agreed to the retention of such counsel or
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. It is understood that the Borrowers shall not,
in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for
all such Indemnified Persons and that all such fees and
expenses shall be reimbursed as they are incurred. The
Borrowers shall not be liable for any settlement of any
proceeding effected without their written consent, which shall
not be unreasonably withheld, but if settled with such consent
or if there be a final judgment for the plaintiff, the
Borrowers agree to indemnify the Indemnified Person from and
against any loss or liability by reason of such settlement or
judgment.
Section 7. Further Assurances. Each of the Borrowers
and the Lender will take such actions, and execute such other
documents, as may be reasonably requested by the Escrow Agent
in order to effectuate the purposes of this Agreement and the
performance by the Escrow Agent of its obligations hereunder.
Section 8. Miscellaneous.
(a) Waiver. No failure to exercise and no delay in
exercising, and no course of dealing with respect to, any
right, power or privilege under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement preclude any
other or further exercise thereof or the exercise of any other
right, power or privilege.
(b) Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed
to have been duly given if delivered personally or by facsimile
transmission to the parties at the following addresses or
facsimile numbers:
If to the Borrowers, to:
c/o Rockefeller Group, Inc.
1230 Avenue of the Americas
New York, New York 10020
Facsimile: 212-698-8660
Attention: Secretary
with a copy to:
Rockefeller Group, Inc.
1230 Avenue of the Americas
New York, New York 10020
Facsimile: 212-698-8624
Attention: Treasurer
If to the Lender, to:
Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
Facsimile: 212-698-1453
Attention: Secretary
If to the Escrow Agent, to:
Mellon Bank, N.A.
c/o Mellon Securities Trust Co.
120 Broadway, 33rd Floor
New York, New York 10271
Facsimile: 212-791-8543
Attention: Sandy McKenna (193-0261)
All such notices, requests and other communications shall
(a) if delivered personally to the address as provided in this
Section 8 be deemed given upon delivery and (b) if delivered by
facsimile transmission to the facsimile number as provided in
this Section 8 be deemed given upon receipt. Any party may
from time to time change its address, facsimile number or other
information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
(c) Lender Notification. If the Lender shall have
delivered a notice of the types referred to in Section 2(e) and
the Event of Default described in that notice is cured by the
Borrowers within the applicable cure period or waived by the
Lender, the Lender shall promptly so notify the Escrow Agent
and, upon the Escrow Agent's receipt of such notice, the rights
of the parties hereunder shall be identical to those prior to
the occurrence of the Event of Default or the giving of notice,
except as modified by the mutual consent of the Lender and the
Borrowers.
(d) Amendment, Modification or Waiver. This
Agreement may be amended or modified, and any of the terms
hereof may be waived, only by a written instrument duly
executed by or on behalf of the Borrowers and the Lender and,
with respect to any amendment that would adversely affect the
Escrow Agent, the Escrow Agent. The Escrow Agent shall receive
a copy of all amendments to this Agreement. No waiver by any
party of any term or condition contained in this Agreement, in
any one or more instances, shall be deemed to be or construed
as a waiver of the same or any other term or condition of this
Agreement on any future occasion.
(e) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
(f) Assignments. No party hereto may assign any of
its rights or obligations hereunder without the prior consent
of each other party; provided that the Lender may assign its
rights hereunder in their entirety (but not in part) to any
transferee who has succeeded the Lender as the Lender pursuant
to Section 8.04(c) of the Loan Agreement.
(g) Captions. The captions and section headings
appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of
any provision of this Agreement.
(h) Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be identical
and all of which, taken together, shall constitute one and the
same instrument, and any of the parties hereto may execute this
Agreement by signing any such counterpart.
(i) Governing Law. This Agreement shall be governed
by, and construed in accordance with, the law of the State of
New York, without regard to its principles of conflicts of
laws.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered as of the day
and year first above written.
ROCKEFELLER CENTER PROPERTIES RCP ASSOCIATES
By: Rockefeller Group, Inc., By: Rockefeller Group, Inc.,
a General Partner a General Partner
By:/s/GWEN A. ROWDEN By:/s/GWEN A. ROWDEN
Name: Gwen A. Rowden Name: Gwen A. Rowden
Title: Vice President Title: Vice President
By: Radio City Music Hall By: Radio City Music Hall
Productions, Inc., Productions, Inc.,
a General Partner a General Partner
By:/s/GWEN A. ROWDEN By:/s/GWEN A. ROWDEN
Name: Gwen A. Rowden Name: Gwen A. Rowden
Title: Vice President Title: Vice President
By: RCP Associates, MELLON BANK N.A.
a General Partner
By:/s/SANDY S. MCKENNA
Name: Sandy S. McKenna
By:Rockefeller Group, Title: Assistant Vice President
Inc.,
a General Partner
By:/s/GWEN A. ROWDEN
Name: Gwen A. Rowden
Title: Vice President
ROCKEFELLER CENTER
PROPERTIES, INC.
By:/s/RICHARD M. SCARLATA
Name: Richard M. Scarlata
Title: Senior Vice President
<TABLE>
<CAPTION>
EXHIBIT A
ESCROW ACCOUNT BETWEEN RCPI AND BORROWERS
DESCRIPTION OF SECURITIES DEPOSITED IN THE ESCROW ACCOUNT ON MAY
(BLANK), 1994
MATURITY MARKET VALUE AS
CMO's CUSIP # COUPON DATE FACE VALUE OF MAY 20, 1994
<S> <C> <C> <C> <C> <C>
FNR 1993-107C 31359AA90 6.000% 9/25/05 5,000,000.00 4,711,500.00
FNMA 93-8 31358TET2 7.000% 8/25/06 5,000,000.00 4,880,500.00
FNMA Remic Series 1992-
181PD 31358QP60 5.750% 8/1/12 3,000,000.00 2,918,400.00
FHLMC CMO 1214 312908T30 6.750% 2/15/15 5,000,000.00 5,036,000.00
FHLMC CMO 1030-3E 312904M90 9.000% 3/15/19 2,300,000.00 2,345,770.00
FNMA CMO 90 Series 119-H 31358FDM0 9.000% 3/25/19 2,171,941.14 2,223,416.00
FNMA CMO 91 Series 103-HB 31358H5Y7 8.750% 9/25/20 8,000,000.00 8,315,200.00
COUNTRYWIDE FUNDING CORP. 126690A89 6.500% 5/25/24 4,970,803.10 4,926,314.00
MORTGAGE PASS-THROUGHS
FNMA 269852 31372DWM4 6.00% 3/1/09 1,970,342.09 1,839,806.00
CORPORATE BONDS
TOYOTA MOTOR CREDIT TT3096712 7.25% 12/13/96 5,000,000.00 5,081,250.00
ONTARIO GLOBAL BOND 683234HD3 5.70% 10/1/97 5,000,000.00 4,850,000.00
TOTAL 47,413,086.33 47,128,156.00
</TABLE>
EXHIBIT B
[Form of Disbursement Instruction]
(blank), 199(blank)
[Name and Address
of Escrow Agent]
Attention:
Ladies and Gentlemen:
Reference is made to the Escrow Agreement, dated as of
May (blank), 1994 (the "Agreement"), among Rockefeller Center
Properties, a New York general partnership, and RCP Associates, a
New York limited partnership (collectively, the "Borrowers"),
Rockefeller Center Properties, Inc., a Delaware corporation (the
"Lender") and Mellon Bank, N.A., a national banking association,
as escrow agent (the "Escrow Agent"). Terms used but not defined
herein have the respective meanings given to such terms in the
Agreement.
The undersigned, Responsible Officers of a general
partner of each of the Borrowers, hereby certify that:
1. They are authorized representatives of the
Borrowers.
2. On the date hereof a copy of this disbursement
instruction has been sent to the Lender by [the same means of
communication as to the Escrow Agent].
3. This certification is delivered under Section
2(d)(ii) of the Agreement.
4. Prior to the date hereof, the Borrowers have not
been notified by the Lender that an Event of Default has occurred
and is continuing.
5. You are hereby instructed to promptly
deliver/transfer [the securities specified in Annex A hereto
and/or cash] with an aggregate Escrow Value equal to $(blank)
(representing the positive difference between the Escrow Value of
the Escrow Fund, as shown on the most recent Account Statement,
and the sum of $46,500,000 less an amount equal to the fair
market value, as determined by the Escrow Agent, of any
withdrawals by the Borrowers since the date of the most recent
Account Statement) to [describe transferee, account and wire
transfer/delivery information].
IN WITNESS WHEREOF, the undersigned has executed this
certificate on behalf of the Borrowers on this (blank) day of
(blank), 199(blank).
Rockefeller Center Properties
By: [General Partner]
By:(blank)
Name:
Title:
RCP Associates
By: [General Partner]
By:(blank)
Name:
Title:
cc: Rockefeller Center Properties, Inc.
EXHIBIT C
[Form of Substitution Instruction]
(blank), 199(blank)
[Name and Address
of Escrow Agent]
Attention:
Ladies and Gentlemen:
Reference is made to the Escrow Agreement, dated as of
May (blank), 1994 (the "Agreement"), among Rockefeller Center
Properties, a New York general partnership, and RCP Associates, a
New York limited partnership (collectively, the "Borrowers"),
Rockefeller Center Properties, Inc., a Delaware corporation (the
"Lender") and Mellon Bank, N.A., a national banking association,
as escrow agent (the "Escrow Agent"). Terms used but not defined
herein have the respective meanings given to such terms in the
Agreement.
The undersigned, Responsible Officers of a general
partner of each of the Borrowers, hereby certify that:
1. They are authorized representatives of the
Borrowers.
2. This certification is delivered under Section
2(d)(iv) of the Agreement.
3. Prior to the date hereof, the Borrowers have not
been notified by the Lender that an Event of Default has occurred
and is continuing.
4. You are hereby instructed to transfer immediately
upon receipt of [describe substitute cash and/or Eligible
Securities or evidence of delivery of substitute Letters of
Credit to Lender] the following securities and/or cash amounts
[describe cash and/or Eligible Securities to be paid/returned to
Borrowers] to [describe transferee, account and wire
transfer/delivery information].
IN WITNESS WHEREOF, the undersigned has executed this
certificate on behalf of the Borrowers on this (blank) day of
(blank), 199(blank).
Rockefeller Center Properties
By: [General Partner]
By:(blank)
Name:
Title:
RCP Associates
By: [General Partner]
By:(blank)
Name:
Title:
cc: Rockefeller Center Properties, Inc.
EXHIBIT D
[Form of Disbursement Instruction]
(blank), 199(blank)
[Name and Address
of Escrow Agent]
Attention:
Ladies and Gentlemen:
Reference is made to the Escrow Agreement dated as of
May (blank), 1994 (the "Escrow Agreement") among Rockefeller
Center Properties, a New York general partnership, and RCP
Associates, a New York limited partnership (collectively, the
"Borrowers"), Rockefeller Center Properties, Inc., a Delaware
corporation (the "Lender"), and Mellon Bank, N.A., as escrow
agent (the "Escrow Agent"). Terms used but not defined herein
have the respective meaning given to such terms in the Escrow
Agreement.
The undersigned, Responsible Officers of a general
partner of each of the Borrowers, hereby certify that:
1. They are authorized representatives of the
Borrowers.
2. This certification is delivered under Section
2(d)(v) of the Escrow Agreement.
3. All principle of and interest on the Loan
outstanding, and all other amounts owing by the Borrowers, under
the Loan Agreement have been paid in full. [or: The November
30, 1994 interest payment under the Notes has been paid in full
when due].
4. Payment made by the Escrow Agent under Section
2(d)(v) of the Escrow Account to the Borrowers should be made to
[describe account and wire transfer information].
IN WITNESS WHEREOF, the undersigned have executed this
certificate on behalf of the Borrowers on this (blank) day of
(blank), 199(blank).
Rockefeller Center Properties
By:(blank)
Title:
RCP Associates
By:(blank)
Title:
CONFIRMED:
Rockefeller Center Properties, Inc.
By:(blank)
Name:
Title:
EXHIBIT E
[Form of Disbursement Instruction]
(blank), 199(blank)
[Name and Address
of Escrow Agent]
Attention:
Ladies and Gentlemen:
Reference is made to the Escrow Agreement, dated as of
May (blank), 1994 (the "Agreement"), among Rockefeller Center
Properties, a New York general partnership, and RCP Associates, a
New York limited partnership (collectively, the "Borrowers"),
Rockefeller Center Properties, Inc., a Delaware corporation (the
"Lender"), and Mellon Bank, N.A., a national banking association,
as escrow agent (the "Escrow Agent"). Terms used but not defined
herein have the respective meanings given to such terms in the
Agreement.
The undersigned, the
of the Lender, hereby certifies that:
1. [He/She] is a Responsible Officer of the Lender.
2. On the date hereof, a copy of this disbursement
instruction has been sent to each of the Borrowers by [the same
means of communication as to the Escrow Agent].
3. This certification is delivered under Section 2(e)
of the Agreement.
4. [An Event of Default has occurred and is
continuing under the Loan Agreement and the Lender has declared
all amounts due under both of the Notes to be immediately due and
payable] [or: The November 30, 1994 interest payment under the
Notes is due and payable and has not been paid in full when due]
and the Borrowers have failed to pay upon the expiration of any
applicable grace period the Lender after a demand for payment has
been made by it.
5. You are hereby instructed to [liquidate Eligible
Securities and] to deliver to us [describe account and wire
transfer information] [the proceeds from such liquidation and]
cash on deposit in the Escrow Account in the amount of $(blank),
which amount does not exceed the amounts remaining due and unpaid
under the Notes.
IN WITNESS WHEREOF, the undersigned has executed this
certificate on behalf of the Lenders on this (blank) day of
(blank), 199(blank).
Rockefeller Center Properties
By:(blank)
Name:
Title:
cc: Rockefeller Center Properties, Inc.
RCP Associates
