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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 22, 1994
(December 18, 1994)
ROCKEFELLER CENTER PROPERTIES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 1-8971 13-3280472
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(State or other (Commission File (IRS Employer
jurisdiction) Number) Identification No.)
1270 Avenue of the Americas New York, N.Y. 10020
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(Address of principal executive offices (Zip Code)
Registrant's telephone number, including area code: (212) 698-1440
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2
Item 5. OTHER EVENTS.
Rockefeller Center Properties, Inc. (the "Company") executed the
following agreements, each dated as of December 18, 1994: (i) a loan agreement
among the Company, the lenders parties thereto and Goldman Sachs Mortgage
Company ("GSMC"), as agent, relating to a $150,000,000 loan to be made to the
Company; (ii) a debenture purchase agreement between the Company and Whitehall
Street Real Estate Limited Partnership V ("Whitehall"), relating to the issuance
by the Company of $75,000,000 principal amount of its 14% Debentures due 2007
(the "Debentures") to be sold to Whitehall; (iii) a warrant agreement between
the Company and Chemical Bank, agent, relating to the issuance and sale to
Whitehall of warrants to purchase 4,156,927 shares of the Company's common
stock, par value $.01 per share; (v) a stock appreciation rights agreement
between the Company and Chemical Bank, agent, relating to the issuance and sale
to Whitehall of 5,348,541 stock appreciation rights exchangeable for warrants of
the Company and exercisable for Debentures; and (vi) a letter agreement among
the Company, Whitehall and Goldman Sachs & Co. relating to board representation
and other matters.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits. The following are being filed as exhibits to this
Report:
4.5 Conformed copy of the Debenture Purchase Agreement
dated as of December 18, 1994 between the Company and
Whitehall, relating to the issuance by the Company of
$75,000,000 principal amount of its 14% Debentures due
2007 (the "Debentures") to be sold to Whitehall.
4.6 Conformed copy of the Warrant Agreement dated as of
December 18, 1994 between the Company and Chemical
Bank, agent, relating to the issuance and sale to
Whitehall of warrants to purchase 4,156,927 shares of
the Company's common stock, par value $0.01 per share.
4.7 Conformed copy of the Stock Appreciation Rights
Agreement dated as of December 18, 1994 between the
Company and Chemical Bank, agent, relating to the
issuance and sale to Whitehall of 5,348,541 stock
appreciation rights exchangeable for warrants of the
Company and exercisable for Debentures.
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3
4.8 Conformed copy of the Letter Agreement dated December
18, 1994 among the Company, Whitehall and Goldman Sachs
& Co. relating to board representation and other
matters.
10.34 Conformed copy of the Loan Agreement dated as of
December 18, 1994 among the Company, the lenders
parties thereto and GSMC, as agent, relating to a
$150,000,000 loan to be made to the Company.
99.4 Press release dated December 19, 1994 stating that the
Company has executed certain definitive financing
agreements referred to above.
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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
-----------------------
Title: President and Chief Executive
Officer
Dated: December 22, 1994
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5
Index to Exhibits
Exhibit No. Description
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4.5 Conformed copy of the Debenture Purchase Agreement
dated as of December 18, 1994 between the Company
and Whitehall Street Real Estate Limited
Partnership V ("Whitehall"), relating to the
issuance by the Company of $75,000,000 principal
amount of its 14% Debentures due 2007 (the
"Debentures") to be sold to Whitehall;
4.6 Conformed copy of the Warrant Agreement dated as
of December 18, 1994 between the Company and
Chemical Bank, agent, relating to the issuance and
sale to Whitehall of warrants to purchase
4,156,927 shares of the Company's common stock,
par value $0.01 per share;
4.7 Conformed copy of the Stock Appreciation Rights
Agreement dated as of December 18, 1994 between
the Company and Chemical Bank, agent, relating to
the issuance and sale to Whitehall of 5,348,541
stock appreciation rights exchangeable for
warrants of the Company and exercisable for
Debentures;
4.8 Conformed copy of the Letter Agreement dated
December 18, 1994 among the Company, Whitehall and
Goldman Sachs & Co. relating to board
representation and other matters.
10.34 Conformed copy of the Loan Agreement dated as of
December 18, 1994 among the Company, the lenders
parties thereto and Goldman Sachs Mortgage Company
("GSMC"), as agent, relating to a $150,000,000
loan to be made to the Company;
99.4 Press release dated December 19, 1994 stating that
the Company has executed certain definitive
financing agreements.
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EXHIBIT 4.5
DEBENTURE PURCHASE AGREEMENT
between
ROCKEFELLER CENTER PROPERTIES, INC.,
and
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V
dated as of
December 18, 1994
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TABLE OF CONTENTS
PAGE
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
(i) 1985 Loan Agreement Default.................... 24
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PAGE
(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
5.04. Compliance with Law.................................. 34
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PAGE
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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PAGE
SECTION 8 REDEMPTION........................................... 43
8.01. Redemption........................................... 43
(a) Voluntary Redemption............................ 43
(b) Mandatory Redemptions........................... 43
(c) Partial Redemption.............................. 43
(d) Notice of Redemption............................ 44
(e) Interest after Redemption Date.................. 44
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........... 50
9.13. Intercreditor Agreement...............................50
EXHIBIT A Debenture............................................ 55
EXHIBIT B Officer's Certificate................................ 59
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.................
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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:
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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.
"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
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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.
"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
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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 (iv) to otherwise assure or
hold harmless the owner of such Indebtedness or obligation against loss in
respect thereof.
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"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.
"LENDERS" means the lender or lenders under the Loan Agreement.
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"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.
"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
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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.
"NEW DOCUMENTS" has the meaning specified in Section 5.09.
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"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 in the ordinary
course of business (other than obligations in respect of the payment of borrowed
money); (vi) easements, rights-of-way, restrictions (including
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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).
"REDEMPTION PRICE" mean the product of the principal amount of
Debentures held by a Person and the
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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, the letter
of credit and draft thereunder 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.
"SUBSEQUENT HOLDER" means, with respect to each issuance of
Debentures pursuant to Section 2.01(b), each
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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.
"WARRANTS" means the warrants for the purchase of shares of the
Common Stock issued pursuant to the Warrant Agreement.
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"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.
(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
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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, 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
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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 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
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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 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
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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 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.
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(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.
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.
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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
(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
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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:
(1) the offer of Debentures is not made to a person in
the United States;
(2) either:
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(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).
(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
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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.
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.
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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 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).
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(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 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
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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 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).
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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
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
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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 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
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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, (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
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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.
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,
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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 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
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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:
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
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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 such Sections, of copies of
its reports on Form 10-K and Form 10-Q, respectively, with the Securities and
Exchange Commission.
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(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 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
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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 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,
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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 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
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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 Loans 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 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
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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
(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,
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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.
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
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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 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
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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 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.
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<PAGE>
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
(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
(ii) the Security Documents, the
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<PAGE>
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 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
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<PAGE>
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
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
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<PAGE>
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) 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 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.
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<PAGE>
(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,
(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.
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<PAGE>
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:
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
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<PAGE>
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 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 &
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<PAGE>
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 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
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<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 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 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
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<PAGE>
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.
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
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<PAGE>
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 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.
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<PAGE>
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.
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<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
------------------------------------
Name: Richard M. Scarlata
-----------------------------
Title: President and
Chief Executive Officer
-----------------------------
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
--------------------------
Name: Daniel M. Neidich
Title: President
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<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.
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<PAGE>
SCHEDULE 4.09
INDEBTEDNESS
A. OUTSTANDING INDEBTEDNESS
<TABLE>
<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 separate schedule) 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>
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<PAGE>
B. OUTSTANDING INDEBTEDNESS TO BE
REPAID ON OR AFTER CLOSING DATE
<TABLE>
<S> <C>
Letter of Credit supporting Company's Commercial Paper Program $200,000,000
Interest rate swaps (see separate schedule) 13,005,995
------------
$213,005,995
------------
------------
</TABLE>
<TABLE>
<CAPTION>
SWAPS
30-Nov-94
National Maturity Net Receipt\
Financial Institution Principal Date RCPI Receives RCPI Pays (Payment)
- ---------------------------------------------------------------------------------------------------------------------
SWAP # Float Rate Fixed Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C>
AIC 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>
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) (1,531,500)
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>
Asset swaps 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>
SWAPS
30-Nov-94 Mark-to-
Market
Financial Institution Net Rate Floating rate Re-sets 30-Nov-94
- --------------------- -------- --------------- -----------
<S> <C> <C> <C>
AIC 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)
----------
- ------------------------------------------------------------
- ------------------------------------------------------------
SWAPS to be settled on or after closing date
Liability swaps
<S> <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% 1/21, 7/12 (1,906,000)
-----------
4.51296% (14,348,695)
-----------
<CAPTION>
Asset swaps
<S> <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>
-55-
<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.
-56-
<PAGE>
SCHEDULE 4.11
Material Agreements and
Negotiations with RCP or RCPA
Material Agreements -- No exceptions
Negotiations with RCP or RCPA -- The Company has requested the consent
specified in Section 3.01(k) and discussions
with respect to such consent are ongoing.
-57-
<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, compounded semi-annually 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
-58-
<PAGE>
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any 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 ............, 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:
.........................................
[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 __, 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
-59-
<PAGE>
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
Appreciate 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.
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
-60-
<PAGE>
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.
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.
-61-
<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 day of _______________, 19___.
_________________________
Richard A. Scarlata
President
-62-
<PAGE>
EXHIBIT C
Form of Assignment of Mortgages
See Exhibit A of the Collateral Trust Agreement,
filed as Exhibit D of this Debenture
Purchase Agreement (Exhibit 4.5 of this 8-K).
<PAGE>
EXHIBIT D
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
COLLATERAL
TRUST AGREEMENT
BY AND AMONG
ROCKEFELLER CENTER PROPERTIES, INC.
and
------------------------------------------------
and
------------------------------------------------,
Trustees
--------------
DATED AS OF
---------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<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 _____________ by
and among ROCKEFELLER CENTER PROPERTIES, INC., a Delaware corporation (the
"Borrower"), and _____________________________, a ____________________ (the
"Corporate Trustee"), and _______________________________ (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");
<PAGE>
2
(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 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.
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
<PAGE>
3
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
_________ 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.
<PAGE>
4
"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 _________ 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.
<PAGE>
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 _________ between the Borrower and Whitehall Street Real Estate Limited
Partnership
<PAGE>
8
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 an
acknowledgment by 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
<PAGE>
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
maintaning 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
<PAGE>
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, [name of 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
<PAGE>
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.
<PAGE>
13
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
<PAGE>
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 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 the full faith and credit of
the United States of America is pledged in support
<PAGE>
15
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 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.
(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
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16
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: 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;
SECOND: 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;
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.
(c) The term "unpaid" as used in such clause SECOND and THIRD of
subsection (b) shall mean all amounts of outstanding Trustee's Fees and Secured
Debt as to
<PAGE>
17
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 ___ 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
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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 Majority Holders, 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
<PAGE>
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 [name of Corporate Trustee] or
[name of Individual Trustee], 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 [name of Corporate Trustee], or
its successors as 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. In the event
that the Borrower shall not have joined in the execution of any such
<PAGE>
25
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 Section 6.1(a)(ii)(A) of this Agreement has
occurred, the Trustee shall not have received a
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26
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 transfer, or
cause to be assigned and transferred, and shall deliver or cause to be delivered
to
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27
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,
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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 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 date 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 Company:
<PAGE>
29
if to the Corporate Trustee:
if to the Individual Trustee,
and New Trustee or any
New Private Lender: to it at the address specified
from time to time in the list provided by the
Holders 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.
(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 ______________ 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.
<PAGE>
30
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 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
<PAGE>
31
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
----------------------
----------------------
[Name]
[Title]
Attest:
By:
-------------------
--------------------
[Name]
[Title]
[AFFIX CORPORATE SEAL]
[Name of Corporate Trustee]
By
----------------------
----------------------
[Name]
[Title]
<PAGE>
33
Attest:
By
----------------------------
--------------------
[Name]
[Title]
[AFFIX CORPORATE SEAL]
[Name of Individual Trustee]
------------------------
<PAGE>
STATE OF }
COUNTY OF } ss:
On this day of ___________, ___________ before me personally came
and , to me personally known and known to me to be the
persons described in and who executed the foregoing instrument as
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
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 }
COUNTY OF } ss:
On this day of _____________, __________ 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 _________________________, a ________________________, who,
being by me duly sworn, did depose and say that he resides at
; that he is
of ___________________________, 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 }
COUNTY OF } ss:
On this day of _____________, ____________, before me
personally came _________________________, 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
- --------------------------------------------------------------------------------
ASSIGNMENT OF MORTGAGES
Dated as of , 199
--------------- --
by
ROCKEFELLER CENTER PROPERTIES, INC.
("Assignor")
to
-------------------------------------------------
(the "Corporate Trustee")
and
-------------------------------------------------
(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 (600 Fifth Avenue)
<PAGE>
ASSIGNMENT OF MORTGAGES
THIS ASSIGNMENT OF MORTGAGES (this "ASSIGNMENT") made as of the ___
day of _____, 199__, by ROCKEFELLER CENTER PROPERTIES, INC., a Delaware
corporation having an office at 1270 Avenue of the Americas, New York, New York
10020 ("ASSIGNOR"), to __________, a ____________ having an office at _____,
______, ______ _____ (the "CORPORATE TRUSTEE") and ________________, a
_______________ having an office at ____________, ____________, ______ _____
(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
___ day of _______, 199__.
ASSIGNOR
ROCKEFELLER CENTER PROPERTIES, INC.
By:
---------------------------------
Richard M. Scarlata
President
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of __________, 1994, before personally came Richard M.
Scarlata, to me known, who, being by me duly sworn, did depose and say that he
resides at _____________, ________, ________________; 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. Mortgage 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
$1,255,160,004.00.
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 (F/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, 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 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 plot, 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 71)
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 pary 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
[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
------------------------------------------------
Acknowledged and Agreed:
RCP ASSOCIATES
By
-------------------
ROCKEFELLER CENTER PROPERTIES
By
--------------------
<PAGE>
EXHIBIT C
Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
________________, 19__
[Lawyers Title Insurance Corporation]
[Chicago Title Company]
[Ticor Title Guarantee Company]
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.
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.
Very truly yours,
ROCKEFELLER CENTER PROPERTIES, INC.
By:________________________________
Richard M. Scarlata
President
<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
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 Gentlement:
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>
2
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
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
$1,255,160,004.00.
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>
SCHEDULE II
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
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 E
Form of Letter Agreement
See Exhibit E of the Collateral Trust Agreement,
filed as Exhibit D to this Debenture
Purchase Agreement (Exhibit 4.5 of this 8-K).
<PAGE>
EXHIBIT 4.6
[CONFORMED COPY]
WARRANT AGREEMENT
between
ROCKEFELLER CENTER PROPERTIES, INC.
and
CHEMICAL BANK,
Warrant Agent
Dated as of December 18, 1994
<PAGE>
TABLE OF CONTENTS
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . 1
1. DEFINITIONS
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Certificate of Incorporation. . . . . . . . . . . . . . . . . . . 2
Common Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Convertible Debentures. . . . . . . . . . . . . . . . . . . . . . 2
Current Market Value. . . . . . . . . . . . . . . . . . . . . . . 2
14% Debentures. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Exercise Price. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . 2
GS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Guaranty Obligations. . . . . . . . . . . . . . . . . . . . . . . 2
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Independent Financial Expert. . . . . . . . . . . . . . . . . . . 3
Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
LIBOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Loan Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Piggyback Registration Rights . . . . . . . . . . . . . . . . . . 4
Prospectus. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Registrable Common Stock. . . . . . . . . . . . . . . . . . . . . 4
Registration Demand . . . . . . . . . . . . . . . . . . . . . . . 4
Registration Rights . . . . . . . . . . . . . . . . . . . . . . . 5
Registration Statement. . . . . . . . . . . . . . . . . . . . . . 5
Representative(s) . . . . . . . . . . . . . . . . . . . . . . . . 5
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Securities Act. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Shelf Registration. . . . . . . . . . . . . . . . . . . . . . . . 5
<PAGE>
ii
Page
Shelf Registration Statement. . . . . . . . . . . . . . . . . . . 5
Stock Appreciation Rights . . . . . . . . . . . . . . . . . . . . 5
Takedown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Telerate Page . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Underlying Common Stock . . . . . . . . . . . . . . . . . . . . . 5
Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Warrant Certificates. . . . . . . . . . . . . . . . . . . . . . . 5
Warrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Whitehall . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. ORIGINAL ISSUE OF WARRANTS
2.1. Form of Warrant Certificates. . . . . . . . . . . . . . . . 6
2.2. Execution and Delivery of Warrant Certificates. . . . . . . 6
3. EXERCISE PRICE; EXERCISE OF WARRANTS AND EXPIRATION OF WARRANTS.
3.1. Exercise Price. . . . . . . . . . . . . . . . . . . . . . . 7
3.2. Exercise of Warrants. . . . . . . . . . . . . . . . . . . . 7
3.3. Expiration of Warrants. . . . . . . . . . . . . . . . . . . 7
3.4. Method of Exercise; Payment of Exercise Price . . . . . . . 7
3.5. Compliance with the Securities Act. . . . . . . . . . . . . 9
3.6. Compliance with Plan Asset Regulations. . . . . . . . . . . 11
4. REGISTRATION RIGHTS AND PROCEDURES
4.1. Demand Registration . . . . . . . . . . . . . . . . . . . . 11
4.2. Piggyback Registration Rights . . . . . . . . . . . . . . . 14
4.3. Company's Ability to Postpone Registration Rights . . . . . 15
4.4. Holder Withdrawal Rights. . . . . . . . . . . . . . . . . . 16
5. REGISTRATION PROCEDURES
5.1. Covenants of the Company Applicable to All Registration
Statements . . . . . . . . . . . . . . . . . . . . . . 16
5.2. Covenants of the Selling Holders. . . . . . . . . . . . . . 21
5.3. Registration Expenses . . . . . . . . . . . . . . . . . . . 22
5.4. Indemnification . . . . . . . . . . . . . . . . . . . . . . 23
5.5. Contribution. . . . . . . . . . . . . . . . . . . . . . . . 25
5.6. Representations, Warranties and Indemnities to Survive. . . 25
5.7. Rule 144. . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.8. Participation in Underwritten Offerings . . . . . . . . . . 26
5.9. Lock-Up Agreements. . . . . . . . . . . . . . . . . . . . . 26
<PAGE>
iii
Page
6. ADJUSTMENTS
6.1. Adjustments upon Certain Transactions . . . . . . . . . . . 27
6.2. Consent of Warrant Holders to Certain Transactions. . . . . 27
6.3 Issuance of Common Stock for Noncash Consideration. . . . . 30
6.4 Distributions of Debt, Assets, Subscription Rights or
Convertible Securities . . . . . . . . . . . . . . . . . 30
6.5 Certain Issues Excepted . . . . . . . . . . . . . . . . . . 31
6.6. Notice of Adjustment. . . . . . . . . . . . . . . . . . . . 31
6.7. Statement on Warrants . . . . . . . . . . . . . . . . . . . 32
6.8. Fractional Interests. . . . . . . . . . . . . . . . . . . . 32
7. WARRANT TRANSFER BOOKS. . . . . . . . . . . . . . . . . . . . . . 32
8. WARRANT HOLDERS
8.1. No Voting Rights. . . . . . . . . . . . . . . . . . . . . . 33
8.2. Right of Action . . . . . . . . . . . . . . . . . . . . . . 34
9. WARRANT AGENT
9.1. Nature of Duties and Responsibilities Assumed . . . . . . . 34
9.2. Right to Consult Counsel. . . . . . . . . . . . . . . . . . 35
9.3. Compensation and Reimbursement. . . . . . . . . . . . . . . 35
9.4. Warrant Agent May Hold Company Securities . . . . . . . . . 36
9.5. Resignation and Removal; Appointment of Successor . . . . . 36
10. REPRESENTATIONS AND WARRANTIES
10.1. Existence, Power and Ownership . . . . . . . . . . . . . . 37
10.2. Authorization. . . . . . . . . . . . . . . . . . . . . . . 37
10.3. No Conflicts or Consents . . . . . . . . . . . . . . . . . 37
10.4. Consents . . . . . . . . . . . . . . . . . . . . . . . . . 38
10.5. Enforceable Obligations. . . . . . . . . . . . . . . . . . 38
10.6. Capitalization . . . . . . . . . . . . . . . . . . . . . . 38
10.7. Percentage Interests . . . . . . . . . . . . . . . . . . . 38
11. COVENANTS.
11.1. Reservation Of Common Stock For Issuance On Exercise Of
Warrants . . . . . . . . . . . . . . . . . . . . . . . . 39
11.2. Notice of Dividends. . . . . . . . . . . . . . . . . . . . 39
11.3. Distributions on Warrants. . . . . . . . . . . . . . . . . 39
11.4. Restriction on the Company's Incurrence of Indebtedness. . 39
11.5. Limitation on Ownership of Common Stock. . . . . . . . . . 40
<PAGE>
iv
Page
12. MISCELLANEOUS.
12.1. Money and Other Property Deposited with the Warrant Agent. 40
12.2. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 41
12.3. Surrender of Certificates. . . . . . . . . . . . . . . . . 41
12.4. Mutilated, Destroyed, Lost and Stolen Warrant Certificates 41
12.5. Removal of Legends . . . . . . . . . . . . . . . . . . . . 42
12.6. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 42
12.7. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 42
12.8. Persons Benefitting. . . . . . . . . . . . . . . . . . . . 43
12.9. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 43
12.10. Amendments. . . . . . . . . . . . . . . . . . . . . . . . 43
12.11. Headings. . . . . . . . . . . . . . . . . . . . . . . . . 43
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
EXHIBIT A Form of Warrant Certificate. . . . . . . . . . . . . . . . A-1
<PAGE>
WARRANT AGREEMENT
AGREEMENT dated as of December 18, 1994 between Rockefeller Center
Properties, Inc., a Delaware corporation (the "Company"), and Chemical Bank, a
New York banking corporation, Warrant Agent (together with its successors and
assigns, the "Warrant Agent").
The Company proposes to issue and deliver its warrant certificates
(the "Warrant Certificates") evidencing Warrants to purchase up to an aggregate
of 4,156,927 shares, subject to adjustment, of its Common Stock, in connection
with the execution and delivery of a loan agreement dated the date hereof (the
"Loan Agreement") among the Company, the lenders parties thereto (the "Lenders")
and Goldman Sachs Mortgage Company, as agent, pursuant to which the Lenders will
make loans to the Company evidenced by floating rate notes (the "Notes") and a
debenture purchase agreement pursuant to which the Company will issue and sell
its 14% Debentures due 2007 (the "14% Debentures") to Whitehall Street Real
Estate Limited Partnership V. Simultaneously with the delivery of the Warrants,
the Company will also issue and deliver certain Stock Appreciation Rights to the
original Holders of the Warrants. Each Warrant will entitle the registered
holder thereof to purchase one share of the Company's Common Stock, subject to
adjustment.
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder of the Company and the record holders of the Warrants, the Company
and the Warrant Agent each hereby agrees as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
AFFILIATE: of any Person, any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For purposes of this definition, "control" when used with respect
to any Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
BUSINESS DAY: 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 principal corporate trust office of the Warrant Agent is located;
PROVIDED, HOWEVER, that if
<PAGE>
2
the day in question relates to the determination of LIBOR, 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.
CERTIFICATE OF INCORPORATION: the Company's Restated Certificate of
Incorporation, as amended from time to time.
COMMON STOCK: the common stock, par value $.01 per share, of the
Company and any other capital stock of the Company into which such common stock
may be converted or reclassified or that may be issued in respect of, in
exchange for, or in substitution of, such common stock by reason of any stock
splits, stock dividends, distributions, mergers, consolidations or other like
events.
COMPANY: the meaning set forth in the preamble to this Agreement and
its successors and assigns.
CONVERTIBLE DEBENTURES: the Company's outstanding Current Coupon
Convertible Debentures due 2000 and Zero Coupon Convertible Debentures due 2000.
CURRENT MARKET VALUE: the meaning set forth in Section 6.1(f).
14% DEBENTURES: the meaning set forth in the preamble to this
Agreement.
EXCHANGE ACT: the Securities Exchange Act of 1934, as amended.
EXERCISE PRICE: the meaning set forth in Section 3.1.
EXPIRATION DATE: the meaning set forth in Section 3.3.
GS: Goldman, Sachs & Co.
GUARANTY OBLIGATIONS: 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
<PAGE>
3
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.
HOLDERS: from time to time, the holders of the Warrants and, unless
otherwise provided or indicated herein, the holders of the Registrable Common
Stock.
INDEBTEDNESS: with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money, (ii) the deferred
purchase price of assets that 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 the
Employment Retirement Income Security Act of 1974, as amended from time to time,
and the regulations promulgated thereunder or under any qualified plan or
related trust and (x) all other obligations that 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.
INDEPENDENT FINANCIAL EXPERT: a nationally recognized investment
banking firm, ranking in the top ten (as determined by the Securities Dealers
Association or a similar securities information data company) as lead manager
for primary common stock offerings in the year prior to the year in which it is
called upon to give independent financial advice to the Company as described
herein and that does not (and whose directors, officers, employees and
Affiliates do not) have a direct or indirect financial interest in the Company
or any of its Affiliates, that has not been and at the time it is called upon to
give independent financial advice to the Company, is not (and none of whose
directors, officers, employees or Affiliates is) a promoter, director or officer
of the Company or any of its Affiliates or an underwriter or placement agent
with respect to any of the securities of the Company or any of its Affiliates,
and that does not provide any advice or opinions to the Company or any of its
Affiliates except as an Independent Financial Expert.
LENDERS: the meaning set forth in the preamble to this Agreement.
<PAGE>
4
LIBOR: with respect to any date of determination, the interest rate
per annum in effect for deposits in United States dollars in the London
interbank market for a period of three months as reported on Telerate Page 3750
in the column headed "3MO" for the date that is two Business Days prior to such
date of determination. Notwithstanding the foregoing, LIBOR for a day that is
not a Business Day shall be deemed to be the rate for the next preceding day
that is a Business Day.
LOAN AGREEMENT: the meaning set forth in the preamble of this
Agreement.
NOTES: the meaning set forth in the preamble to this Agreement.
PERSON: any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
PIGGYBACK REGISTRATION RIGHTS: the meaning set forth in
Section 4.2(a).
PROSPECTUS: the prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any of the Registrable Common Stock covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
REGISTRABLE COMMON STOCK: all shares of Underlying Common Stock and
unless otherwise provided or indicated herein, the related Warrants; PROVIDED,
HOWEVER, that particular shares of Underlying Common Stock or Warrants shall
cease to be Registrable Common Stock when (i) such shares or Warrants shall have
been disposed of in accordance with an effective registration statement covering
the sale of such shares or Warrants; (ii) such shares or Warrants have been
distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act or (iii) such shares or Warrants shall have otherwise
been transferred and new shares or Warrants not subject to transfer restrictions
under any federal securities laws and not bearing any legend restricting further
transfer shall have been delivered by the Company, all applicable holding
periods shall have expired and no other applicable and legally binding
restriction on transfer shall exist.
As used in Section 4, the number of shares of "Registrable Common
Stock deemed outstanding" on a particular date shall be equal to the sum of
(i) the number of shares of Registrable Common Stock issuable upon exercise of
Warrants outstanding on such date, plus (ii) the number of shares of Registrable
Common Stock outstanding on such date.
REGISTRATION DEMAND: the meaning set forth in Section 4.1.
<PAGE>
5
REGISTRATION RIGHTS: the rights of Holders set forth in Sections 4.1
and 4.2 to have shares of Registrable Common Stock or Warrants registered under
the Securities Act for sale under one or more effective Registration Statements.
REGISTRATION STATEMENT: any registration statement filed by the
Company under the Securities Act that covers any of the Registrable Common
Stock, including the Prospectus, any amendments and supplements to such
Registration Statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such registration statement.
REPRESENTATIVE(S): the meaning set forth in Section 5.8(a).
SEC: the Securities and Exchange Commission.
SECURITIES ACT: the Securities Act of 1933, as amended.
SHELF REGISTRATION: the meaning set forth in Section 4.1(c).
SHELF REGISTRATION STATEMENT: the meaning set forth in
Section 4.1(c).
STOCK APPRECIATION RIGHTS: stock appreciation rights issued by the
Company to the original Holders pursuant to the Stock Appreciation Rights
Agreement dated as of the date hereof between the Company and Chemical Bank, SAR
Agent.
TAKEDOWN: the meaning set forth in Section 4.1(c)(ii).
TELERATE PAGE: the display designated as page "3750" and entitled
"BBA US$ Interest Settlement Rate-Recap" on the Telerate Monitor (or such other
page as may replace the 3750 page on the service for the purpose of displaying
London interbank offered rates of major banks).
UNDERLYING COMMON STOCK: the shares of Common Stock issuable or
issued upon the exercise of the Warrants.
WARRANT AGENT: the meaning set forth in the preamble to this
Agreement.
WARRANT CERTIFICATES: the meaning set forth in the preamble to this
Agreement.
WARRANTS: the warrants issued by the Company on the date hereof
pursuant to this Agreement, any additional warrants issued upon exchange of
Stock Appreciation Rights pursuant to the Stock Appreciation Rights Agreement
and upon adjustments made pursuant to Sections 6.1 and 6.2.
<PAGE>
6
WHITEHALL: Whitehall Street Real Estate Limited Partnership V, a
Delaware limited partnership, and its Affiliates.
Certain terms, used principally in Sections 4, 5 and 6, are defined in
those Sections.
2. ORIGINAL ISSUE OF WARRANTS.
2.1. FORM OF WARRANT CERTIFICATES. The Warrant Certificates shall be
in registered form only and substantially in the form attached hereto as
Exhibit A, shall be dated the date on which countersigned by the Warrant Agent
and may have such legends and endorsements typed, stamped, printed, lithographed
or engraved thereon as provided in Section 3.5(f) and as required by the
Certificate of Incorporation or as may be required to comply with any law or
with any rule or regulation pursuant thereto or with any rule or regulation of
any securities exchange on which the Warrants may be listed.
Pending the preparation of definitive Warrant Certificates, temporary
Warrant Certificates may be issued, which may be printed, lithographed,
typewritten, mimeographed or otherwise produced, which will be substantially of
the tenor of the definitive Warrant Certificates in lieu of which they are
issued and which are not required to be countersigned by the Warrant Agent.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates to the Warrant Agent, without
charge to the Holder. Until so exchanged the temporary Warrant Certificates
shall in all respects be entitled to the same benefits under this Agreement as
definitive Warrant Certificates.
2.2. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Simultaneously with
the execution of this Agreement, Warrant Certificates evidencing Warrants to
purchase an aggregate of up to 4,156,927 shares of Common Stock, subject to
adjustment, shall be executed by the Company and delivered to the Warrant Agent
for countersignature, and the Warrant Agent shall thereupon countersign and
deliver such Warrant Certificates to Whitehall. Warrant Certificates evidencing
additional Warrants issued in exchange for Stock Appreciation Rights may be
executed, on or after the date of this Agreement, by the Company and delivered
to the Warrant Agent for countersignature, and the Warrant Agent shall thereupon
countersign and deliver such Warrant Certificates upon the order and at the
direction of the Company to the purchasers thereof on the date of issuance. The
Warrant Agent is hereby irrevocably authorized to countersign and deliver
Warrant Certificates as
<PAGE>
7
required by this Section 2.2, Section 7, Section 12.4 or Section 12.5. The
Warrant Certificates shall be executed on behalf of the Company by its President
or Vice President, either manually or by facsimile signature printed thereon.
The Warrant Certificates shall be manually countersigned by the Warrant Agent
and shall not be valid for any purpose unless so countersigned. In case any
officer of the Company whose signature shall have been placed upon any of the
Warrant Certificates shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issue and delivery thereof, such
Warrant Certificates may, nevertheless, be countersigned by the Warrant Agent
and issued and delivered with the same force and effect as though such person
had not ceased to be such officer of the Company.
3. EXERCISE PRICE; EXERCISE OF WARRANTS AND EXPIRATION OF WARRANTS.
3.1. EXERCISE PRICE. Each Warrant Certificate shall, when
countersigned by the Warrant Agent, entitle the Holder thereof, subject to the
provisions of this Agreement, to purchase, except as provided in Section 3.4
hereof, one share of Common Stock for each Warrant represented thereby, subject
to all adjustments made on or prior to the date of issuance thereof, at an
exercise price (the "Exercise Price") of $5.00 per share, subject to all
adjustments made on or prior to the date of issuance thereof as herein provided.
3.2. EXERCISE OF WARRANTS. The Warrants shall be exercisable from
time to time on any Business Day beginning on the earliest of (i) the time
immediately after the Loans (as defined in the Loan Agreement) have been made by
the Lenders and the 14% Debentures have been purchased by Whitehall, (ii) such
time as any condition precedent specified in Section 3.01 of the Loan Agreement
(other than Section 3.01(c) as it relates to Sections 7.01(f) and (g) thereof)
is no longer capable of being fulfilled in accordance with the terms thereof and
(iii) March 31, 1995, and ending on the Expiration Date in the manner provided
for herein.
3.3. EXPIRATION OF WARRANTS. The Warrants shall expire and the
rights of the Holders of such Warrants shall terminate at the close of business
on the earlier of (i) March 31, 1995 in the event the Lenders fail to fund
under the Loan Agreement even though all of the conditions precedent set forth
in Section 3.01 thereof have been satisfied and (ii) December 31, 2007 (such
earlier date being referred to as the "Expiration Date").
3.4. METHOD OF EXERCISE; PAYMENT OF EXERCISE PRICE. In order to
exercise a Warrant, the Holder thereof must surrender the Warrant Certificate
evidencing such Warrant to the Warrant Agent, with the form on the reverse of or
attached to the Warrant Certificate duly executed, together with any required
payment in full of the Exercise Price then in effect for the shares of
Underlying Common Stock as to which a Warrant Certificate is submitted
<PAGE>
8
for exercise. Any such payment of the Exercise Price shall be by certified or
official bank check drawn on a New York City bank payable to the order of the
Company. All funds received upon the tender of Warrants shall be deposited by
the Warrant Agent for the account of the Company, unless otherwise instructed in
writing by the Company.
If fewer than all the Warrants represented by a Warrant Certificate
are surrendered, such Warrant Certificate shall be surrendered and a new Warrant
Certificate of the same tenor and for the number of Warrants that were not
surrendered shall promptly be executed and delivered to the Warrant Agent by the
Company. The Warrant Agent shall promptly countersign the new Warrant
Certificate, register it in such name or names as may be directed in writing by
the Holder and deliver the new Warrant Certificate to the Person or Persons
entitled to receive the same.
Upon surrender of a Warrant Certificate in conformity with the
foregoing provisions, the Warrant Agent shall thereupon promptly notify the
Company, and the Company shall transfer to the Holder of such Warrant
Certificate appropriate evidence of ownership of any shares of Underlying Common
Stock or other securities or property (including any money) to which the Holder
is entitled, registered or otherwise placed in, or payable to the order of, such
name or names as may be directed in writing by the Holder, and shall deliver
such evidence of ownership and any other securities or property (including any
money) to the Person or Persons entitled to receive the same, together with an
amount in cash in lieu of any fraction of a share as provided in Section 6.8. A
Holder shall be deemed to own and have all of the rights associated with any
Underlying Common Stock or other securities or property (including money) to
which it is entitled pursuant to this Agreement upon the surrender of a Warrant
Certificate in accordance with this Section 3.4.
Notwithstanding anything to the contrary contained herein, in the
event of the occurrence of a business combination pursuant to which the
unaffiliated stockholders of the Company are given the opportunity to exchange
all or a portion of such stockholders' shares of Common Stock, the Holders may
exercise their Warrants by surrendering such Warrants to the Warrant Agent, with
the form on the reverse of or attached to the Warrant Certificate duly executed,
together with an indication that they are exercising these Warrants pursuant to
this paragraph and the Warrant Agent shall thereupon promptly notify the Company
of such surrender, and the Company shall promptly (i) in the case of only cash
consideration, pay to each Holder an amount equal to the number of shares for
which the Warrants submitted by each Holder may be exercised multiplied by the
difference between such cash consideration and the Exercise Price, on a per
share of Common Stock basis, and (ii) in the case of noncash consideration or
any combination of cash and noncash consideration, upon receipt from each Holder
of its Warrant Certificates, deliver to each such Holder the difference between
(x) the cash, if any, and the fair market value of the noncash consideration as
determined by an Independent Financial Expert in the same manner as Section
6.2(f) and (y) the Exercise Price, on a per share of Common Stock basis.
<PAGE>
9
3.5. COMPLIANCE WITH THE SECURITIES ACT. (a) No Warrant may be
exercised and no Warrant or share of Registrable Common Stock may be sold,
transferred or otherwise disposed of (any such sale, transfer or other
disposition, a "sale"), except in compliance with this Section 3.5 and
Section 3.6 below.
(b) A Holder may exercise its Warrants if it is an "accredited
investor" or a "qualified institutional buyer", as defined in Regulation D and
Rule 144A under the Securities Act, respectively, and a Holder may sell its
Warrants or any Registrable Common Stock to a transferee that is an "accredited
investor" or a "qualified institutional buyer", as such terms are defined in
such Regulation and such Rule, respectively, provided that each of the following
conditions is satisfied:
(i) with respect to any "accredited investor" that is not an
institution, such Holder or transferee, as the case may be, provides
certification establishing to the reasonable satisfaction of the Company
that it is an "accredited investor";
(ii) such Holder or transferee represents that it is acquiring the
Underlying Common Stock (in the case of an exercise) or the Warrants or
shares of Registrable Common Stock (in the case of a sale) for its own
account and that it is not acquiring such Underlying Common Stock or the
Warrants or shares of Registrable Common Stock 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 applicable state thereof, but subject,
nevertheless, to the disposition of its property being at all times within
its control; and
(iii) such Holder or transferee agrees to be bound by the
provisions of this Section 3.5 with respect to any exercise of the Warrants
and any sale of the Warrants or shares of Registrable Common Stock.
(c) A Holder may exercise its Warrants and may sell its Warrants or
shares of Registrable Common Stock in accordance with Regulation S under the
Securities Act; PROVIDED that such Holder and the Company shall take, and cause
any transferee to take, all actions that such Holder and the Company agree is
reasonably necessary to qualify such transaction under Regulation S under the
Securities Act.
(d) A Holder may exercise its Warrants or sell its Warrants or shares
of Registrable Common Stock if:
(i) such Holder gives written notice to the Company of its intention
to exercise or effect such sale, which notice (A) shall describe the manner
and circumstances of the proposed transaction in reasonable detail and
(B) shall designate
<PAGE>
10
the counsel for such Holder, which counsel shall be reasonably satisfactory to
the Company;
(ii) counsel for the Holder shall render a customary opinion, to the
effect that such proposed exercise or sale may be effected without
registration under the Securities Act or under applicable Blue Sky laws;
and
(iii) such Holder or transferee complies with Sections 3.5(b)(ii)
and 3.5(b)(iii).
(e) Subject to Section 12.5, all stock certificates issued pursuant
to the exercise of the Warrants shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE 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 WARRANT AGREEMENT DATED AS OF DECEMBER 18, 1994 BETWEEN
ROCKEFELLER CENTER PROPERTIES, INC. (THE "COMPANY") AND CHEMICAL BANK,
WARRANT AGENT. A COPY OF SUCH WARRANT AGREEMENT IS AVAILABLE AT THE
OFFICES OF THE COMPANY.
(f) Subject to Section 12.5, each certificate representing the
Warrants shall bear the following legend:
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS. THESE WARRANTS
AND SUCH SECURITIES 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 WARRANT
AGREEMENT DATED AS OF DECEMBER 18, 1994 BETWEEN ROCKEFELLER CENTER
PROPERTIES, INC. (THE "COMPANY") AND CHEMICAL BANK, WARRANT AGENT. A
COPY OF SUCH WARRANT AGREEMENT IS AVAILABLE AT THE OFFICES OF THE
COMPANY.
<PAGE>
11
(g) The provisions of Section 3.5(a) shall not apply to:
(i) any exercise of a Warrant in connection with a sale of the
Registrable Common Stock issued upon such exercise in a transaction that is
registered under the Securities Act.
(ii) any sale of a Warrant or shares of Registrable Common Stock in a
transaction that is registered under the Securities Act.
3.6. COMPLIANCE WITH PLAN ASSET REGULATIONS. Until such time as the
Warrants and the Underlying Common Stock constitute "publicly-offered
securities" within the meaning of Department of Labor Regulation 29 CFR
Section 2510.3-101(b), as amended, and the advisory opinions or other
administrative interpretations thereunder (collectively, the "Plan Asset
Regulations"), no Warrant may be sold to a "benefit plan investor" within the
meaning of the Plan Asset Regulations if the result of such sale would be that
benefit plan investors hold 25% or more of all nonpublicly-offered shares of
Common Stock, on a fully diluted basis (assuming, among other things, (i) an
exercise of all outstanding nonpublicly-offerered Warrants for Common Stock,
(ii) an exchange of all outstanding nonpublicly-offerered Stock Appreciations
Rights for Warrants and a subsequent exercise of such Warrants for Common Stock
and (iii) a conversion of all outstanding Convertible Debentures for Common
Stock).
4. REGISTRATION RIGHTS AND PROCEDURES.
4.1. DEMAND REGISTRATION. (a) At any time after the Warrants have
become exercisable pursuant to Section 3.2, the Holders of (i) at least 5% of
the Registrable Common Stock then deemed outstanding shall have the right to
request in writing that the Company effect a registration of such Holders'
Registrable Common Stock pursuant to the provisions of this Section 4.1 or (ii)
at least 1% of the Registrable Common Stock then deemed outstanding shall have
the right to request in writing that the Company effect a registration of such
Holder's Registrable Common Stock pursuant to a Takedown under this Section 4.1
(each such request, a "Registration Demand"). A Registration Demand shall
specify the number of shares of Registrable Common Stock that each such Holder
proposes to sell in the offering. If no Shelf Registration Statement (as
defined in Section 4.1(c)(i) below) shall be effective as of the date of the
Registration Demand, the demanding Holders may elect to register such
Registrable Common Stock in accordance with either Section 4.1(c)(i) or
Section 4.1(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 Registrable Common Stock pursuant to Section
4.1(c)(ii). The Holders may make four Registration Demands pursuant to
Sections 4.1(c)(i) and 4.1(d) and four Registration Demands per year pursuant to
an existing Shelf Registration Statement
<PAGE>
12
pursuant to Section 4.1(c)(ii) for which the Company will pay and bear all costs
and expenses in accordance with Section 5.3 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 a Takedown),
the Company shall give written notice thereof to all of the other Holders at
least 30 days prior to the initial filing of a Registration Statement relating
to such Registration Demand. Each of the other Holders 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 Registrable Common Stock in such
Registration Statement. Upon receipt of a Registration Demand that is a
Takedown, a representative of the selling holders shall give written notice
thereof to all of the other Holders at least three Business Days prior to the
initial filing of a Registration Statement relating to such Registration Demand.
Each of the other 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 Registrable Common Stock in such Registration
Statement.
(c) (i) As promptly as practicable and in no event later than 60
days after the Company receives a Registration Demand electing to register
Registrable Common Stock pursuant to this Section 4.1(c), 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 the Registerable Securities, 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 Registerable
Common Stock 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 of 1934) so that the
Holders, through the Representative(s), have a reasonable opportunity to
comment thereon prior to its being used and/or filed with the SEC.
<PAGE>
13
(ii) As promptly as practicable after the Company receives a
Registration Demand from a Holder or Holders pursuant to which a Holder is
deemed to have elected to register Registrable Common Stock pursuant to an
existing Shelf Registration Statement (a "Takedown"), the Company shall
file 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 necessitating the Company's participation is required to
effect a sale of Registrable Common Stock pursuant to an effective Shelf
Registration Statement, a representative of the selling holder or holders
agrees to provide the Company with at least three Business Days' notice of
the proposed sale (which may or may not include the amount of shares of
Registrable Common Stock to be registered) pursuant to the Shelf
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
Registrable Common Stock pursuant to this Section 4.1(d), the Company shall file
with the SEC a Registration Statement, on any form that shall be available and
appropriate for the sale of the Registrable Common Stock in accordance with the
intended method of distribution thereof. The Company shall include in such
Registration Statement all of the Registrable Common Stock of such requesting
Holders that such Holders have requested to be included therein pursuant to
Sections 4.1(a) and 4.1(b); PROVIDED, HOWEVER, that, if the requested
registration involves an underwritten offering, the Registrable Common Stock to
be registered may be reduced if the managing underwriter delivers a notice (a
"Cutback Notice") pursuant to Section 4.1(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 Registrable
Common Stock, 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 shares of Registrable Common Stock pursuant to a Registration Demand.
<PAGE>
14
(f) If a Registration Demand involves an underwritten offering, GS
shall be the managing underwriter for such offering unless GS 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.
(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 Shares"), the provisions of this Section 4.1(g) shall be
applicable if the managing underwriter delivers a Cutback Notice stating that,
in its opinion, the aggregate number of shares of Registrable Common Stock, plus
the Company Shares proposed to be sold therein, exceeds the maximum number of
shares specified by the managing underwriter in such Cutback Notice that may be
distributed without adversely affecting the price, timing or distribution of the
Common Stock being distributed. If the managing underwriter delivers such
Cutback Notice, the number of shares of Registrable Common Stock requested to be
registered and Company Shares shall be reduced in the following order until the
number of shares to be offered has been reduced to the maximum number of shares
specified by the managing underwriter in the Cut Back Notice: first, the
Company Shares and second, the Registrable Common Stock in proportion to the
respective number of shares of Registrable Common Stock that each Holder has
requested to be registered.
(h) The underwriting agreement relating to any Registration Demand
shall provide that each requesting Holder shall have the right to sell either
its Warrants or its Registrable Common Stock to the underwriters.
(i) No Registration Demand (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.
(j) 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 an aggregate of 5% or more
of the Registrable Common Stock then deemed outstanding.
4.2. 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 equity securities of the Company, the Company shall
give written notice to all the Holders at least 30 days prior to the initial
filing of the Registration Statement relating to such offering. Each such
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
Registrable Common Stock in such Registration Statement ("Piggyback Registration
Rights").
<PAGE>
15
(b) In the event that the proposed offering is an underwritten
offering covering shares of Common Stock to be offered for the account of the
Company (the "Company Shares"), the provisions of this Section 4.2(b) shall be
applicable if the managing underwriter delivers a Cutback Notice stating that,
in its opinion, the aggregate number of shares of Registrable Common Stock and
the Company Shares that the Holders have requested to be registered, exceeds the
maximum number of shares specified by the managing underwriter in such Cutback
Notice that may be distributed without adversely affecting the price, timing or
distribution of the Common Stock being distributed. If the managing underwriter
delivers such Cutback Notice, the number of shares of Registrable Common Stock
and Company Shares requested to be included in such offering shall be reduced in
the following order until the number of shares to be offered has been reduced to
the maximum number of shares specified by the managing underwriter in the Cut
Back Notice: first, the Registrable Common Stock in proportion to the
respective number of shares of Registrable Common Stock that each Holder has
requested to be registered and second, the Company Shares.
(c) The provisions of this Section 4.2 shall not be applicable in
connection with (i) a registration statement filed by the Company pursuant to
Section 4.1 or (ii) a transaction in which a registration statement is filed by
the Company on Form S-4 or S-8 or any successor forms.
4.3. 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 4.1(i).
(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 Registrable
Common Stock 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 Registrable Common Stock 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 4.3, specifying the reasons
therefor.
<PAGE>
16
4.4. HOLDER WITHDRAWAL RIGHTS. The Company shall withdraw from
registration any Registrable Common Stock on request of a Holder; PROVIDED that,
in the case of a Registration Demand under Section 4.1, 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 4.1(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
Registrable Common Stock by a Holder, the number of shares of Registrable Common
Stock remaining subject to such Registration Statement is less than 5% of the
Registrable Common Stock deemed 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.
5. REGISTRATION PROCEDURES.
5.1. COVENANTS OF THE COMPANY APPLICABLE TO ALL REGISTRATION
STATEMENTS. This Section 5.1 applies to all Registration Statements filed by
the Company and referred to in Section 4.1 or 4.2. 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 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 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 5.1(j) cease to be true and correct
and (vi) of the existence of any fact that
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17
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 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
<PAGE>
18
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 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 5.1(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 Whitehall for so long as it is a Holder or the
Representative(s), 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.
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19
(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 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
Warrants and/or the Registerable Common Stock, 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 Warrants and/or Registerable Common Stock, 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; 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 any Registerable Common Stock 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 or as an
underwriter, a placement or sales agent or a broker or dealer in respect of
such Registerable Common Stock 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 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 Registerable
Common Stock, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by the
Registration Statement
<PAGE>
20
is an underwritten offering or is made through a placement or sales agent,
to recommend the maximum public offering price of such Registerable Common
Stock, (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 5.4
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 By-laws 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 5.1, 5.2, 5.3, 5.4,
5.5, 5.8 and 5.9, 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 compliance with Section 5.1(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
Warrants or Underlying Common Stock, 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
<PAGE>
21
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.
5.2. 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 5.1(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 5.1(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
amended Prospectus contemplated by Section 5.1(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
<PAGE>
22
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.
5.3. 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 4.1 or 4.2,
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 5.3(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 underwriting discounts and
commissions and transfer taxes, if any;
(v) the qualification of the Registered Securities Stock under
applicable securities laws in accordance with Section 5.1(g) and any filing
for review of the offering with the National Association of Securities
Dealers, Inc., 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 in
connection with any reserve share program; 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 5.1(h).
<PAGE>
23
(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 stock 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.
5.4. INDEMNIFICATION. (a) In connection with each registration
pursuant to Section 4.1 or 4.2, 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 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
<PAGE>
24
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 5.4(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 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 5.4(a) and of the
selling holders under Section 5.4(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 5.4(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).
<PAGE>
25
(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 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.
5.5. CONTRIBUTION. (a) In order to provide for just and equitable
contribution in circumstances under which the indemnity provided for in this
Section 5 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 5.5, 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.
5.6. REPRESENTATIONS, WARRANTIES AND INDEMNITIES TO SURVIVE. The
indemnity and contribution agreements contained in this Section 5 and the
representations and
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26
warranties of the Company referred to in Section 5.1(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 consummation of the sale or successive resales of the
Registered Securities.
5.7. 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 Registrable Common Stock may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Common
Stock 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 Registrable Common
Stock, the Company will deliver to such Holder a written statement as to whether
it has complied with such requirements.
5.8. PARTICIPATION IN UNDERWRITTEN OFFERINGS. No Holder 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 shares of Registrable
Common Stock 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 stockholders and the underwriters, which underwriting agreement
shall comply with the provisions of this Section 5.
(c) Such Holder executes all questionnaires and other documents
required by the underwriting agreement to be executed by such Holder.
5.9. 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 Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock, other than any such sale or
distribution of Common Stock upon exercise of the Company's Warrants, in the
case of any registration pursuant to Section 4.1, for a period of 90 days from
the effective date of the Registration Statement pertaining to such Registrable
Common Stock.
<PAGE>
27
(b) Each Holder of Registrable Common Stock whose Registrable Common
Stock is covered by a Registration Statement filed pursuant to Section 4.1 or
4.2 agrees that it will not, directly or indirectly, sell, offer to sell, grant
any option for the sale of, or otherwise dispose of, any shares of Common Stock
or any Warrants or other securities convertible into or exchangeable or
exercisable for Common Stock, for a period of 90 days from the effective date of
the Registration Statement pertaining to such Registrable Common Stock.
(c) The lock-up agreements set forth in Sections 5.9(a) and 5.9(b)
shall be subject to customary exceptions that may be contained in an
underwriting agreement if any such registration involves an underwritten
offering.
6. ADJUSTMENTS.
6.1. ADJUSTMENTS UPON CERTAIN TRANSACTIONS. The Exercise Price and
the number of shares of Common Stock issuable upon exercise of each Warrant
shall be adjusted in case the Company shall (i) pay a dividend or make any other
distribution with respect to its Common Stock in shares of its capital stock,
(ii) subdivide its outstanding Common Stock, (iii) combine its outstanding
Common Stock into a smaller number of shares, or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock (including any such
reclassification in connection with a merger, consolidation or other business
combination in which the Company is the continuing corporation). In such event,
the number of shares of Common Stock issuable upon exercise of each Warrant
immediately prior to the record date for such dividend or distribution or the
effective date of such subdivision or combination shall be adjusted so that the
Holder of each Warrant shall thereafter be entitled to receive the kind and
number of shares of Common Stock or other securities of the Company that such
Holder would have owned or have been entitled to receive after the happening of
any of the events described above, had such Warrant been exercised immediately
prior to the happening of such event or any record date with respect thereto.
In addition, upon an adjustment pursuant to this Section 6.1(a), the Exercise
Price for each share of Common Stock payable upon exercise of such Warrant shall
be adjusted (calculated to the nearest $.0001) so that it shall equal the price
determined by multiplying such Exercise Price immediately prior to such
adjustment by a fraction, the numerator of which shall be the number of shares
issuable upon the exercise of each Warrant immediately prior to such adjustment,
and the denominator of which shall be the number of shares so issuable
immediately thereafter. Such adjustment shall become effective immediately
after the effective date of such event retroactive to the record date, if any,
for such event.
6.2. CONSENT OF WARRANT HOLDERS TO CERTAIN TRANSACTIONS. (a) Upon
any issuance of shares of Common Stock for consideration equal to or greater
than the "fair market value of Common Stock" (for purposes of this
Section 6.2(a), an "Issuance"), the
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Company shall issue to Holders of Warrants and holders of Stock Appreciation
Rights, on a pro rata basis, such additional Warrants and Stock Appreciation
Rights necessary in order that the aggregate percentage of Common Stock
represented by all outstanding Warrants and Warrants exchangeable for all
outstanding Stock Appreciation Rights shall not be diminished on account of such
Issuance. The Exercise Price for such Warrants and such additional Warrants
relating to the Stock Appreciation Rights shall equal the per share
consideration paid for the Common Stock issued.
(b) The Company shall not issue any shares of Common Stock for
consideration less than the "fair market value of Common Stock" (for purposes
of this Section 6.2(b), an "Issuance") without obtaining the prior approval of
such Issuance and of the Exercise Price of the additional Warrants and Stock
Appreciation Rights referred to in the last sentence of this Section 6.2(b) from
(i) for so long as GS and its Affiliates shall beneficially own Warrants and/or
Stock Appreciation Rights exercisable for at least 5% of the Common Stock then
outstanding on a "fully diluted basis", GS and (ii) Holders and holders of Stock
Appreciation Rights representing in the aggregate at least 75% of the Warrants
and Stock Appreciation Rights then outstanding. In the event such required
consent shall be obtained, the Company may make such approved Issuance; PROVIDED
that the Company shall simultaneously therewith issue to Holders and holders of
Stock Appreciation Rights, on a pro rata basis, such additional Warrants and
Stock Appreciation Rights, as the case may be, necessary in order that the
aggregate percentage of Common Stock represented by all outstanding Warrants and
Warrants issuable upon exchange of all outstanding Stock Appreciation Rights
shall not be diminished on account of such Issuance. The Exercise Price of any
Warrants and such additional Warrants relating to the Stock Appreciation Rights
issued pursuant to this Section 6.2(b) shall equal the per share consideration
paid for the Common Stock issued in the Issuance less any amount necessary to
compensate Holders thereof for the dilutive effect of such Issuance.
(c) The Company shall not issue any securities convertible into or
exchangeable or exercisable for shares of Common Stock ("Common Securities")
(for purposes of this Section 6.2(c), an "Issuance") without obtaining the prior
approval of such Issuance and of the Exercise Price of the additional Warrants
and Stock Appreciation Rights referred to in the last sentence of this
Section 6.2(c) from (i) for so long as GS and its Affiliates shall beneficially
own Warrants and/or Stock Appreciation Rights exercisable for at least 5% of the
Common Stock then outstanding on a fully diluted basis, GS, and (ii) Holders
and holders of Stock Appreciation Rights representing in the aggregate at least
75% of the Warrants and Stock Appreciation Rights then outstanding. In the
event such required consent shall be obtained, the Company may make such
approved Issuance; PROVIDED that the Company shall simultaneously therewith
issue to Holders and holders of Stock Appreciation Rights, on a pro rata basis,
such additional Warrants and Stock Appreciation Rights, as the case may be,
necessary in order that the aggregate percentage of Common Stock represented by
all outstanding Warrants and Warrants issuable upon exchange of all outstanding
Stock
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29
Appreciation Rights shall not be diminished on account of such Issuance. The
Exercise Price for the Warrants and Stock Appreciation Rights issued pursuant to
this Section 6.2(c) shall be the consideration approved by the requisite Holders
of Warrants and holders of Stock Appreciation Rights in accordance with the
first sentence of this Section 6.2(c).
(d) For so long as any Warrant or Stock Appreciation Right shall be
issued and outstanding, the Company shall not issue any preferred stock or
create any additional series of common stock of the Company.
(e) For purposes of this Section 6.2, "on a fully diluted basis"
shall mean the number of shares of Common Stock then outstanding, assuming (i)
that all Stock Appreciation Rights then outstanding can be and have been
exchanged for Warrants and such number of Warrants in addition to all Warrants
then outstanding have been exercised for Common Stock and (ii) no conversion of
Convertible Debentures for Common Stock.
(f) For purposes of this Section 6.2, "fair market value of Common
Stock" shall mean:
(i) if the Common Stock is registered under the Exchange Act,
deemed to be the average of the daily market prices of the Common Stock for
the 90 consecutive trading days immediately preceding the day as of which
"fair market value" is being determined or, if the Common Stock has been
registered under the Exchange Act for less than 90 consecutive trading days
before such date, then the average of the daily market prices for all of
the trading days before such date for which daily market prices are
available. The market price for each such trading day shall be: (A) in
the case of the Common Stock listed or admitted to trading on any
securities exchange, the closing price, regular way, on such day, or if no
sale takes place on such day, the average of the closing bid and asked
prices on such day, (B) in the case the Common Stock not then listed or
admitted to trading on any securities exchange, the last reported sale
price on such day, or if no sale takes place on such day, the average of
the closing bid and asked prices on such day, as reported by a reputable
quotation source designated by the Company, (C) in the case the Common
Stock not then listed or admitted to trading on any securities exchange and
as to which no such reported sale price or bid and asked prices are
available, the average of the reported high bid and low asked prices on
such day, as reported by a reputable quotation service, or a newspaper of
general circulation in the Borough of Manhattan, City and State of New
York, customarily published on each business day, designated by the
Company, or if there shall be no bid and asked prices on such day, the
average of the high bid and low asked prices, as so reported, on the most
recent day (not more than 90 days prior to the date in question) for which
prices have been so reported, and (D) if there are no bid and asked prices
reported during the 90 days prior to the date in question, the of the
Common Stock shall be determined by an
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30
Independent Financial Expert using one or more valuation methods that the
Independent Financial Expert, in its best professional judgment, determines
to be most appropriate, giving effect to any discount attributable to any
lack of liquidity of the Common Stock.
(ii) if the Common Stock is not registered under the Exchange
Act, the "fair market value of Common Stock" shall be determined by an
Independent Financial Expert using one or more valuation methods that the
Independent Financial Expert, in its best professional judgment, determines
to be most appropriate, assuming such Common Stock is to be sold in an
arm's length transaction and there was no compulsion on the part of any
party to such sale to buy or sell and taking into account all relevant
factors.
6.3. ISSUANCE OF COMMON STOCK FOR NONCASH CONSIDERATION. In case the
Company shall issue and sell shares of Common Stock or rights, options, warrants
or convertible or exchangeable securities containing the right to subscribe for
or purchase shares of Common Stock for a consideration consisting, in whole or
in part, of property other than cash or its equivalent, then in determining the
"fair market value of Common Stock" for purposes of the first sentence of
Section 6.2(a) or (b), the Board of Directors of the Company shall determine, in
good faith, the fair value of such property. In case the Company shall issue
and sell rights, options, warrants or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common Stock,
together with one or more other securities as part of a unit at a price per
unit, then in determining the "fair market value of Common Stock" for purposes
of the first sentence of Section 6.2(a) or (b), the Board of Directors of the
Company shall determine, in good faith, the fair value of the rights, options,
warrants or convertible or exchangeable securities then being sold as part of
such unit.
6.4. DISTRIBUTIONS OF DEBT, ASSETS, SUBSCRIPTION RIGHTS OR
CONVERTIBLE SECURITIES: In case the Company shall fix a record date for the
making of a distribution to all holders of shares of its Common Stock of
evidence of Indebtness of the Company, assets (other than cash dividends) or
securities (excluding those referred to in Sections 6.2(a), 6.1(b) and 6.1(c))
(any such evidences of Indebtness, assets or securities, the "assets or
securities"), then in each case the Holders, upon the exercise of the Warrants,
shall be entitled to receive in addition to the shares of Common Stock, (i) the
assets or securities to which such Holder would have been entitled as a holder
of Common Stock if such Holder had exercised its Warrants immediately prior to
the record date for such distribution and (ii) any income earned on the assets
or securities distributed from the distribution date to the date of exercise or
repurchase, as the case may be, less the Exercise Price then in effect. At the
time of any such distribution, the Company shall either (a) deposit the assets
or securities payable to Holders pursuant hereto in trust for the Holders with
an "eligible institution" with instructions as to the investment of such
property and any proceeds therefrom so as to protect
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31
the value of such property for the Holders or (B) distribute to the Holders the
assets or securities to which they would be entitled upon exercise or
repurchase, as the case may be, and, upon any such distribution pursuant to this
Clause (b), the provisions of this Section 6.4 shall no longer apply to such
event. Such election shall be made by the Company giving written notice thereof
to the Holders.
For purposes of this Section 6.4, the term "eligible institution"
shall mean a corporation organized and doing business under the laws of the
United States of America or of any state thereof, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by Federal or state
authority.
6.5. CERTAIN ISSUES EXCEPTED. Anything herein to the contrary
notwithstanding, the Company shall not be required to (i) make any adjustment of
the number of shares of Common Stock purchasable upon exercise of each Warrant
or of the Exercise Price or (ii) obtain a consent or issue additional Warrants
or Stock Appreciation Rights pursuant to Section 6.2, in either case with
respect to the issuance of shares of Common Stock (A) pursuant to options,
warrants or rights under employee benefit plans currently in effect or hereafter
adopted by the Company to the extent that the aggregate number of shares so
issued after the date hereof does not exceed 500,000 shares of Common Stock
(subject to adjustment on substantially the same terms as the number of shares
of Common Stock would be adjusted hereunder) as well as the grant or issuance of
any option, warrant or rights in connection therewith and (B) upon conversion of
the Convertible Debentures.
6.6. NOTICE OF ADJUSTMENT. Whenever the number of shares of Common
Stock or other stock or property issuable upon the exercise of each Warrant or
the Exercise Price is adjusted, as herein provided, the Company shall cause the
Warrant Agent promptly to mail by first class mail, postage prepaid, to each
Holder notice of such adjustment or adjustments and shall deliver to the Warrant
Agent a certificate of a firm of independent public accountants selected by the
Board of Directors of the Company (who may be the regular accountants employed
by the Company) setting forth the number of shares of Common Stock or other
stock or property issuable upon the exercise of each Warrant and the Exercise
Price after such adjustment, setting forth a brief statement of the facts
requiring such adjustment and setting forth the computation by which such
adjustment was made. The Warrant Agent shall be entitled to rely on such
certificate and shall be under no duty or responsibility with respect to any
such certificate, except to exhibit the same from time to time, to any Holder
desiring an inspection thereof during reasonable business hours. The Warrant
Agent shall not at any time be under any duty or responsibility to any Holders
to determine whether any facts exist that may require any adjustment of the
Exercise Price or the number of shares of Common Stock or other stock or
property issuable on exercise of the Warrants, or with respect to the nature or
extent of any such adjustment when made, or with
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32
respect to the method employed in making such adjustment or the validity or
value (or the kind or amount) of any shares of Common Stock or other stock or
property which may be issuable on exercise of the Warrants. The Warrant Agent
shall not be responsible for any failure of the Company to make any cash payment
or to issue, transfer or deliver any shares of Common Stock or stock
certificates or other common stock or properties upon the exercise of any
Warrant.
6.7. STATEMENT ON WARRANTS. Irrespective of any adjustment in the
Exercise Price or the number or kind of shares issuable upon the exercise of the
Warrants, Warrants theretofore or thereafter issued may continue to express the
same price and number and kind of shares as are stated in the Warrants initially
issuable pursuant to this Agreement.
6.8. FRACTIONAL INTERESTS. The Company shall not be required to
issue fractional shares of Common Stock on the exercise of Warrants. If more
than one Warrant shall be presented for exercise in full at the same time by the
same Holder, the number of full shares of Common Stock which shall be issuable
upon such exercise thereof shall be computed on the basis of the aggregate
number of shares of Common Stock acquirable on exercise of the Warrants so
presented. If any fraction of a share of Common Stock would, except for the
provisions of this Section be issuable on the exercise of any Warrant (or
specified portion thereof), the Company shall pay an amount in cash calculated
by it to be equal to the then Current Market Value per share of Common Stock
multiplied by such fraction computed to the nearest whole cent.
7. WARRANT TRANSFER BOOKS.
The Warrant Certificates shall be issued in registered form only. The
Company shall cause to be kept at the office of the Warrant Agent a register in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Warrant Certificates and of transfers or
exchanges of Warrant Certificates as herein provided.
At the option of the Holder, Warrant Certificates may be exchanged at
such office, and upon payment of the charges hereinafter provided. Whenever any
Warrant Certificates are so surrendered for exchange, the Company shall execute,
and the Warrant Agent shall countersign and deliver, the Warrant Certificates
that the Holder making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of transfer or
exchange of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such registration of
transfer or exchange.
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33
Every Warrant Certificate surrendered for registration of transfer or
exchange shall (if so required by the Company or the Warrant Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Warrant Agent, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Warrant Certificates. 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 Warrant
Certificates.
Any Warrant Certificate when duly endorsed in blank shall be deemed
negotiable and when a Warrant Certificate shall have been so endorsed, the
Holder thereof may be treated by the Company, the Warrant Agent and all other
persons dealing therewith as the absolute owner thereof for any purpose and as
the Person entitled to exercise the rights represented thereby, or to the
transfer thereof on the register of the Company maintained by the Warrant Agent,
any notice to the contrary notwithstanding; but until such transfer on such
register, the Company and the Warrant Agent may treat the registered Holder
thereof as the owner for all purposes.
8. WARRANT HOLDERS.
8.1. NO VOTING RIGHTS. Except as provided below, prior to the
exercise of the Warrants, no Holder of a Warrant Certificate, as such, shall be
entitled to any rights of a stockholder of the Company, including, without
limitation, the right to vote, to consent, to exercise any preemptive right, to
receive any notice of meetings of stockholders for the election of directors of
the Company or any other matter or to receive any notice of any proceedings of
the Company. Notwithstanding the foregoing, Holders of Warrants that are
exercisable pursuant to Section 3.2 will be entitled to receive at the addresses
shown in the register of the Company maintained by the Warrant Agent notice of
all meetings of stockholders of the Company and the Company will submit any item
that may be submitted to stockholders for consideration (other than elections of
directors, ratifications of appointments of auditors or amendments to Article
Ninth of the Certificate of Incorporation) to such Holders prior to submission
to stockholders for purposes of determining the number of Warrants that would
have approved of such action had such Holders and holders of Stock Appreciation
Rights been entitled to vote on such matters. In order to make such a
determination, the Holders shall appoint a representative (who may be the same
Person appointed by the holders of Stock Appreciation Rights pursuant to the
Stock Appreciation Rights Agreement) who shall poll the Holders and the holders
of the Stock Appreciation Rights in respect of any such action within five
Business Days of the date of receipt of the notice from the Company as to any
such action. If no response is given by such
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34
representative to the Company prior to the expiration of such period, all of the
Holders shall be deemed to have consented to the proposed action.
8.2. RIGHT OF ACTION. All rights of action in respect of this
Agreement are vested in the Holders of the Warrants, and any Holder of any
Warrant, without the consent of the Warrant Agent or the Holder of any other
Warrant, may, on such Holder's own behalf and for such Holder's own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce, or otherwise in respect of, such Holder's right
to exercise or exchange such Holder's Warrants in the manner provided in this
Agreement.
9. WARRANT AGENT.
9.1. NATURE OF DUTIES AND RESPONSIBILITIES ASSUMED. The Company
hereby appoints the Warrant Agent to act as agent of the Company as set forth in
this Agreement. The Warrant Agent hereby accepts such appointment as agent of
the Company and agrees to perform that agency upon the terms and conditions
herein set forth, by all of which the Company and the Holders of Warrants, by
their acceptance thereof, shall be bound. The Warrant Agent shall not by
countersigning Warrant Certificates or by any other act hereunder be deemed to
make any representations as to validity or authorization of the Warrants or the
Warrant Certificates (except as to its countersignature thereon) or of any
securities or other property delivered upon exercise or tender of any Warrant,
or as to the accuracy of the computation of the Exercise Price or the number or
kind or amount of stock or other securities or other property deliverable upon
exercise of any Warrant, the independence of any Independent Financial Expert or
the correctness of the representations of the Company made in such certificates
that the Warrant Agent receives. The Warrant Agent shall not have any duty to
calculate or determine any adjustments with respect either to the Exercise
Price, the kind and amount of shares or other securities or any property
receivable by Holders upon the exercise or tender of Warrants required from time
to time or the distributions on the Warrants pursuant to Section 11.3, and the
Warrant Agent shall have no duty or responsibility in determining the accuracy
or correctness of such calculation. The Warrant Agent shall not (a) be liable
for any recital or statement of fact contained herein or in the Warrant
Certificates or for any action taken, suffered or omitted by it in good faith on
the belief that any Warrant Certificate or any other documents or any signatures
are genuine or properly authorized, (b) be responsible for any failure on the
part of the Company to comply with any of its covenants and obligations
contained in this Agreement or in the Warrant Certificates, or (c) be liable for
any act or omission in connection with this Agreement except for its own
negligence or willful misconduct. The Warrant Agent is hereby authorized to
accept instructions with respect to the performance of its duties hereunder from
the President, any Vice President or the Secretary of the Company and to apply
to any such officer for instructions (which instructions will be promptly given
in
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35
writing when requested) and the Warrant Agent shall not be liable for any action
taken or suffered to be taken by it in good faith in accordance with the
instructions of any such officer, but in its discretion the Warrant Agent may in
lieu thereof accept other evidence of such or may require such further or
additional evidence as it may deem reasonable.
The Warrant Agent may execute and exercise any of the rights and
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, provided reasonable care has been
exercised in the selection and in the continued employment of any such attorney,
agent or employee. The Warrant Agent shall not be under any obligation or duty
to institute, appear in or defend any action, suit or legal proceeding in
respect hereof, unless first indemnified to its satisfaction, but this provision
shall not affect the power of the Warrant Agent to take such action as the
Warrant Agent may consider proper, whether with or without such indemnity. The
Warrant Agent shall promptly notify the Company in writing of any claim made or
action, suit or proceeding instituted against it arising out of or in connection
with this Agreement.
The Company will perform, execute, acknowledge and deliver or cause to
be performed, executed, acknowledged and delivered all such further acts,
instruments and assurances as may reasonably be required by the Warrant Agent in
order to enable it to carry out or perform its duties under this Agreement.
The Warrant Agent shall act solely as agent of the Company hereunder.
The Warrant Agent shall not be liable except for the failure to perform such
duties as are specifically set forth herein, and no implied covenants or
obligations shall be read into this Agreement against the Warrant Agent, whose
duties and obligations shall be determined solely by the express provisions
hereof.
9.2. RIGHT TO CONSULT COUNSEL. The Warrant Agent may at any time
consult with competent legal counsel, and the Warrant Agent shall incur no
liability or responsibility to the Company or to any Holder for any action
taken, suffered or omitted by it in good faith in accordance with the opinion or
advice of such counsel.
9.3. COMPENSATION AND REIMBURSEMENT. The Company agrees to pay to
the Warrant Agent from time to time compensation for all services rendered by it
hereunder as the Company and the Warrant Agent may agree from time to time, and
to reimburse the Warrant Agent for reasonable expenses and disbursements
incurred in connection with the execution and administration of this Agreement
(including the reasonable compensation and the expenses of its counsel), and
further agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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36
9.4. WARRANT AGENT MAY HOLD COMPANY SECURITIES. The Warrant Agent
and any stockholder, director, officer or employee of the Warrant Agent may buy,
sell or deal in any of the Warrants or other securities of the Company or its
Affiliates or become pecuniarily interested in transactions in which the Company
or its Affiliates may be interested, or contract with or lend money to the
Company or its Affiliates or otherwise act as fully and freely as though it were
not the Warrant Agent under this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any other
legal entity.
9.5. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Warrant Agent and no appointment of a successor
warrant agent shall become effective until the acceptance of appointment by the
successor warrant agent as provided herein. The Warrant Agent may resign its
duties and be discharged from all further duties and liability hereunder (except
liability arising as a result of the Warrant Agent's own negligence or willful
misconduct) after giving written notice to the Company. The Company may remove
the Warrant Agent upon written notice, and the Warrant Agent shall thereupon in
like manner be discharged from all further duties and liabilities hereunder,
except as aforesaid. The Warrant Agent shall, at the Company's expense, cause
to be mailed (by first-class mail, postage prepaid) to each Holder of a Warrant
at his last address as shown on the register of the Company maintained by the
Warrant Agent a copy of said notice of resignation or notice of removal, as the
case may be. Upon such resignation or removal, the Company shall appoint in
writing a new warrant agent. If the Company shall fail to make such appointment
within a period of 20 days after it has been notified in writing of such
resignation by the resigning Warrant Agent or after such removal, then the
Holder of any Warrant may apply to any court of competent jurisdiction for the
appointment of a new warrant agent. Any new warrant agent, whether appointed by
the Company or by such a court, shall be a corporation doing business under the
laws of the United States or any state thereof, in good standing and having a
combined capital and surplus of not less than $50,000,000. The combined capital
and surplus of any such new warrant agent shall be deemed to be the combined
capital and surplus as set forth in the most recent annual report of its
condition published by such warrant agent prior to its appointment, provided
that such reports are published at least annually pursuant to law or to the
requirements of a Federal or state supervising or examining authority. After
acceptance in writing of such appointment by the new warrant agent, it shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named herein as the Warrant Agent, without any further
assurance, conveyance, act or deed; but if for any reason it shall be necessary
or expedient to execute and deliver any further assurance, conveyance, act or
deed, the same shall be done at the expense of the Company and shall be legally
and validly executed and delivered by the resigning or removed Warrant Agent.
Not later than the effective date of any such appointment, the Company shall
give notice thereof to the resigning or removed Warrant Agent. Failure to give
any notice provided for in this Section, however, or any
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37
defect therein, shall not affect the legality or validity of the resignation of
the Warrant Agent or the appointment of a new warrant agent, as the case may be.
(b) Any corporation into which the Warrant Agent or any new warrant
agent may be merged or any corporation resulting from any consolidation to which
the Warrant Agent or any new warrant agent shall be a party, shall be a
successor Warrant Agent under this Agreement without any further act, provided
that such corporation would be eligible for appointment as successor to the
Warrant Agent under the provisions of Section 9.5(a). Any such successor
Warrant Agent shall promptly cause notice of its succession as Warrant Agent to
be mailed (by first-class mail, postage prepaid) to each Holder of a Warrant at
such Holder's last address as shown on the register of the Company maintained by
the Warrant Agent.
10. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants that, as of the Closing
Date:
10.1. 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.
10.2. AUTHORIZATION. It has the corporate power and authority to
enter into this Agreement and to perform its obligations under, and consummate
the transactions contemplated by, this Agreement and has by proper action duly
authorized the execution and delivery of this Agreement.
10.3. NO CONFLICTS OR CONSENTS. Neither the execution and delivery
of this Agreement, nor the consummation of the transactions contemplated herein,
nor the performance of and compliance with the terms and provisions hereof 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
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38
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 this Agreement) upon or with respect to its properties.
10.4. 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 the Warrants.
10.5. ENFORCEABLE OBLIGATIONS. This Agreement has been duly executed
and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms subject, as
to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
10.6. 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. As of the date
hereof, no shares of Common Stock are held in treasury and no shares of Common
Stock are reserved for issuance upon exercise of 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 Common Stock is duly authorized, validly
issued, fully paid and non-assessable. Except for the transactions contemplated
by this Agreement and the other Loan Documents (as defined in the Loan
Agreement) and except in respect of the Company's Dividend Reinvestment Plan and
the indenture relating to the Convertible Debentures, 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 convertible into or exchangeable for, or giving any Person a
right to subscribe for or acquire, capital stock of the Company.
10.7. PERCENTAGE INTERESTS. The Stock Appreciation Rights and
Warrants issued and outstanding on the date hereof, assuming, with respect to
Stock Appreciation Rights, the exchange thereof for Warrants and, with respect
to Warrants, the exercise thereof for Common Stock, and assuming no conversion
of Convertible Debentures, represent in the aggregate 19.9% of the issued and
outstanding Common Stock on a fully diluted basis (I.E., taking into account the
Warrants and Stock Appreciation Rights but not including the Convertible
Debentures).
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11. COVENANTS.
11.1. RESERVATION OF COMMON STOCK FOR ISSUANCE ON EXERCISE OF
WARRANTS. The Company covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, solely for the purpose of issue upon exercise of Warrants as
herein provided, such number of shares of Common Stock as shall then be issuable
upon the exercise of all Warrants issuable hereunder. The Company covenants
that all shares of Common Stock which shall be so issuable shall, upon such
issue, be duly and validly issued and fully paid and non-assessable.
11.2. NOTICE OF DIVIDENDS. At any time when the Company declares any
dividend on its Common Stock, it shall give notice to the Holders of all the
then outstanding Warrants of any such declaration not less than 15 days prior to
the related record date for payment of the dividend so declared.
11.3. DISTRIBUTIONS ON WARRANTS. Each Holder will be entitled to an
annual distribution per Warrant payable on January 15 of each year commencing on
January 15, 1996 with respect to the prior calendar year equal to the positive
difference, if any, between the aggregate amount of dividends paid per share of
Common Stock during such prior calendar year and (i) with respect to years
ending on or before December 31, 2000, $0.60 or (ii) thereafter, the product of
the Exercise Price per Warrant then in effect multiplied by LIBOR in effect on
the preceding December 31 plus 1%; PROVIDED, HOWEVER, to the extent the number
of shares of Common Stock for which a Warrant is exercisable is adjusted
pursuant to Section 6.1, there shall be a corresponding adjustment to the amount
in clause (i) above.
11.4. RESTRICTION ON THE COMPANY'S INCURRENCE OF INDEBTEDNESS. The
Company covenants that it will not contract, create, incur, assume or permit to
exist any Indebtedness, except:
(i) Indebtedness arising under the Loan Agreement and the other Loan
Documents (as defined in the Loan Agreement);
(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);
<PAGE>
40
(iv) Indebtedness in effect on the date hereof (as specified in
Schedule 4.09 of the Loan Agreement) 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 (as defined in the Loan Agreement) 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 Borrower to cover
working capital needs; and
(vi) 14% Debentures issued in connection with the exercise of Stock
Appreciation Rights.
11.5. LIMITATION ON OWNERSHIP OF COMMON STOCK. Each Holder
acknowledges that it understands the limitation on ownership of Common Stock set
forth in Article Ninth of the Company's Certificate of Incorporation and agrees
not to acquire Warrants or Common Stock in an aggregate amount that would
violate such limitation for so long as such limitation exists. Each subsequent
Holder agrees to be bound by the provisions of this Section 11.5 by its
acceptance of any Warrant Certificate.
12. MISCELLANEOUS.
12.1. MONEY AND OTHER PROPERTY DEPOSITED WITH THE WARRANT AGENT. Any
moneys, securities or other property which at any time shall be deposited by the
Company or on its behalf with the Warrant Agent pursuant to this Agreement shall
be and are hereby assigned, transferred and set over to the Warrant Agent in
trust for the purpose for which such moneys, securities or other property shall
have been deposited; but such moneys, securities or other property need not be
segregated from other funds, securities or other property except to the extent
required by law. The Warrant Agent shall distribute any money deposited with it
for payment and distribution to the Holders by mailing by first-class mail a
check in such amount as is appropriate, to each such Holder at the address shown
on the Warrant register of the Company, or as it may be otherwise directed in
writing by such Holder, upon surrender of such Holder's Warrants or shares of
Registrable Common Stock, as the case may be. Any money deposited with the
Warrant Agent for payment and distribution to the Holders that remains unclaimed
for two years after the date the money was deposited with the Warrant Agent
shall be paid to the Company upon its request therefor.
<PAGE>
41
12.2. PAYMENT OF TAXES. The Company shall pay all transfer, stamp
and other similar taxes that may be imposed in respect of the issuance or
delivery of the Warrants or in respect of the issuance or delivery by the
Company of any securities upon exercise of the Warrants with respect thereto.
The Company shall not be required, however, to pay any tax or other charge
imposed in connection with any transfer involved in the issue of any certificate
for shares of Common Stock or other securities underlying the Warrants or
payment of cash to any Person other than the Holder of a Warrant Certificate
surrendered upon the exercise or purchase of a Warrant, and in case of such
transfer or payment, the Warrant Agent and the Company shall not be required to
issue any stock certificate or pay any cash until such tax or charge has been
paid or it has been established to the Warrant Agent's and the Company's
satisfaction that no such tax or other charge is due.
12.3. SURRENDER OF CERTIFICATES. Any Warrant Certificate surrendered
for exercise or purchase shall, if surrendered to the Company, be delivered to
the Warrant Agent, and all Warrant Certificates surrendered or so delivered to
the Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not
be reissued by the Company. The Warrant Agent shall destroy such cancelled
Warrant Certificates and deliver its certificate of destruction to the Company
unless the Company shall otherwise direct.
12.4. MUTILATED, DESTROYED, LOST AND STOLEN WARRANT CERTIFICATES. If
(a) any mutilated Warrant Certificate is surrendered to the Warrant Agent or
(b) the Company and the Warrant Agent receive evidence to their satisfaction of
the destruction, loss or theft of any Warrant Certificate, and there is
delivered to the Company and the Warrant Agent such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Warrant Agent that such Warrant Certificate has
been acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Warrant Agent shall countersign and deliver, in exchange for
any such mutilated Warrant Certificate or in lieu of any such destroyed, lost or
stolen Warrant Certificate, a new Warrant Certificate of like tenor and for a
like aggregate number of Warrants.
Upon the issuance of any new Warrant Certificate under this
Section 12.4, 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
other expenses (including the reasonable fees and expenses of the Warrant Agent
and of counsel to the Company) in connection therewith.
Every new Warrant Certificate executed and delivered pursuant to this
Section 12.4 in lieu of any destroyed, lost or stolen Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
destroyed, lost or stolen Warrant Certificate shall be at any time enforceable
by anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder.
<PAGE>
42
The provisions of this Section 12.4 are exclusive and shall preclude
(to the extent lawful) all other rights or remedies with respect to the
replacement of mutilated, destroyed, lost, stolen or Warrant Certificates.
12.5. REMOVAL OF LEGENDS. Holder may surrender its Warrant
Certificates or certificates evidencing underlying Common Stock to the Warrant
Agent who, upon the direction of the Company, shall exchange such certificates
for certificates without the legends referred to in Sections 2.1, 3.5(d) and/or
3.5(e); PROVIDED THAT the Certificate of Incorporation no longer requires such
legend and/or the Company is reasonably satisfied that the Warrants or
Underlying Common Stock, as the case may be, represented by such certificates
are freely transferable under the Securities Act, as the case may be.
12.6. NOTICES. (a) Except as otherwise provided in Section 11.5(b),
any notice, demand or delivery authorized by this Agreement shall be
sufficiently given or made when mailed if sent by first-class mail, postage
prepaid, addressed to any Holder of a Warrant at such Holder's address shown on
the register of the Company maintained by the Warrant Agent and to the Company
or the Warrant Agent as follows:
If to the Company: 1270 Avenue of the Americas
New York, New York 10022
Attention: Secretary
If to the Warrant Agent: 450 West 33rd Street
New York, New York 10001
Attention: Vice President - Administration
or such other address as shall have been furnished to the party giving or making
such notice, demand or delivery.
(b) Any notice required to be given by the Company to the Holders
pursuant to this Agreement, shall be made by mailing by registered mail, return
receipt requested, to the Holders at their respective addresses shown on the
register of the Company maintained by the Warrant Agent. The Company hereby
irrevocably authorizes the Warrant Agent, in the name and at the expense of the
Company, to mail any such notice upon receipt thereof from the Company. Any
notice that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given when mailed, whether or not the Holder receives
the notice.
12.7. APPLICABLE LAW. This Agreement and each Warrant issued
hereunder and all rights arising hereunder shall be governed by the internal
laws of the State of New York.
<PAGE>
43
12.8. PERSONS BENEFITTING. This Agreement shall be binding upon and
inure to the benefit of the Company and the Warrant Agent, and their respective
successors, assigns, beneficiaries, executors and administrators, and the
Holders from time to time of the Warrants. Nothing in this Agreement is
intended or shall be construed to confer upon any Person, other than the
Company, the Warrant Agent and the Holders of the Warrants, any right, remedy or
claim under or by reason of this Agreement or any part hereof.
12.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
12.10. AMENDMENTS. The Company may, without the consent of the
Holders of the Warrants, by supplemental agreement or otherwise, make any
changes or corrections in this Agreement that it shall have been advised by
counsel (a) are required to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein or (b) add to the covenants and agreements of the Company for the benefit
of the Holders, or surrender any rights or power reserved to or conferred upon
the Company in this Agreement; PROVIDED, that, in each case, such changes or
corrections shall not adversely affect the interests of the Holders in any
material respect and have been approved by Whitehall and 75% of the Holders
(including Whitehall). The Warrant Agent shall send a copy of any such
supplemental agreement to each of the Holders by first-class mail at the
Company's expense. The Warrant Agent shall join with the Company in the
execution and delivery of any such supplemental agreements unless it affects the
Warrant Agent's own rights, duties or immunities hereunder, in which case the
Warrant Agent may, but shall not be required to, join in such execution and
delivery.
12.11. HEADINGS. The descriptive headings of the several Sections of
this Agreement are inserted for convenience and shall not control or affect the
meaning or construction of any of the provisions hereof.
<PAGE>
44
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
ROCKEFELLER CENTER PROPERTIES, INC.
By /s/ Richard M. Scarlata
-----------------------------------------------
Title: President and Chief Executive Officer
CHEMICAL BANK, Warrant Agent
By /s/ Stanley E. Siekierski
-----------------------------------------------
Title: Vice President
<PAGE>
EXHIBIT A
FORM OF FACE OF WARRANT CERTIFICATE
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER
APPLICABLE STATE SECURITIES LAWS. THESE WARRANTS AND SUCH SECURITIES 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 WARRANT AGREEMENT DATED AS OF DECEMBER 18, 1994 BETWEEN ROCKEFELLER CENTER
PROPERTIES, INC. (THE "COMPANY") AND CHEMICAL BANK, WARRANT AGENT. A COPY OF
SUCH WARRANT AGREEMENT IS AVAILABLE AT THE OFFICES OF THE COMPANY.
WARRANTS TO PURCHASE COMMON STOCK
OF ROCKEFELLER CENTER PROPERTIES, INC.
No. _________ Certificate for __________ Warrants
This certifies that [HOLDER], or registered assigns, is the registered
holder of the number of Warrants set forth above. Each Warrant entitles the
holder thereof (a "Holder"), subject to the provisions contained herein and in
the Warrant Agreement referred to below, to purchase from Rockefeller Center
Properties, Inc., a Delaware corporation (the "Company"), one share of the
Company's common stock, par value $.01 per share ("Common Stock"), subject to
adjustment upon the occurrence of certain events specified herein and in the
Warrant Agreement, at the exercise price (the "Exercise Price") of $5.00 per
share, subject to adjustment upon the occurrence of certain events specified
herein and in the Warrant Agreement.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of December 18, 1994 (the "Warrant Agreement"),
between the Company and Chemical Bank, warrant agent (the "Warrant Agent", which
term includes any successor Warrant Agent under the Warrant Agreement), and is
subject to the terms and provisions contained in the Warrant Agreement, to all
of which terms and provisions the Holder of this Warrant Certificate consents by
acceptance hereof. The Warrant Agreement is
<PAGE>
A-2
hereby incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Warrant Agent and the Holders of the Warrants.
This Warrant Certificate shall terminate and be void as of the close
of business on the earlier of (i) March 31, 1995 in the event the lenders (the
"Lenders") under the Loan Agreement dated as of December 18, 1994 (the "Loan
Agreement") among the Company, the Lenders and Goldman Sachs Mortgage Company,
as agent for the Lenders, fail to fund thereunder even though all of the
conditions precedent set forth in Section 3.01 thereof have been satisfied and
(ii) December 31, 2007 (such earlier date being referred to as the "Expiration
Date").
As provided in the Warrant Agreement and subject to the terms and
conditions therein set forth, the Warrants shall be exercisable from time to
time on any Business Day beginning on the earliest of (i) the time immediately
after the Loans (as defined in the Loan Agreement) have been made by the Lenders
and the Company's 14% Debentures have been purchased by Whitehall Street Real
Estate Investment Fund V, (ii) such time as any condition precedent specified in
Section 3.01 of the Loan Agreement (other than Section 3.01(c) as it relates to
Sections 7.01(f) and (g) thereof) is no longer capable of being fulfilled in
accordance with the terms thereof and (iii) March 31, 1995 and ending on the
Expiration Date.
The Exercise Price and the number of shares of Common Stock issuable
upon the exercise of each Warrant are subject to adjustment as provided in the
Warrant Agreement.
All shares of Common Stock issuable by the Company upon the exercise
of Warrants shall, upon such issue, be duly and validly issued and fully paid
and non-assessable.
By acceptance of this Warrant Certificate, the Holder hereof
acknowledges that it understands the limitation on ownership of Common Stock set
forth in Article Ninth of the Company's Restated Certificate of Incorporation,
as amended, and agrees not to acquire Warrants or Common Stock in an aggregate
amount that would violate such limitation.
In order to exercise a Warrant, the registered holder hereof must
surrender this Warrant Certificate at the corporate trust office of the Warrant
Agent, with the Exercise Subscription Form on the reverse hereof duly executed
by the Holder hereof, with signature guaranteed as therein specified, together
with any required payment in full of the Exercise Price then in effect for the
share(s) of Underlying Common Stock as to which the Warrant(s) represented by
this Warrant Certificate are submitted for exercise, all subject to the terms
<PAGE>
A-3
and conditions hereof and of the Warrant Agreement. Any such payment of the
Exercise Price shall be by certified or official bank check drawn on a New York
City bank payable to the order of the Company.
The Company shall pay all transfer, stamp and other similar taxes that
may be imposed in respect of the issuance or delivery of the Warrants or in
respect of the issuance or delivery by the Company of any securities upon
exercise of the Warrants. The Company shall not be required, however, to pay
any tax or other charge imposed in connection with any transfer involved in the
issue of any certificate for shares of Common Stock or other securities
underlying the Warrants or payment of cash to any Person other than the Holder
of a Warrant Certificate surrendered upon the exercise or purchase of a Warrant,
and in case of such transfer or payment, the Warrant Agent and the Company shall
not be required to issue any stock certificate or pay any cash until such tax or
other charge has been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
This Warrant Certificate and all rights hereunder are transferable by
the registered holder hereof, in whole or in part, on the register of the
Company, upon surrender of this Warrant Certificate for registration of transfer
at the office of the Warrant Agent maintained for such purpose in the City of
New York, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Warrant Agent duly executed by, the
Holder hereof or his attorney duly authorized in writing, with signature
guaranteed as specified in the attached Form of Assignment. Upon any partial
transfer, the Company will issue and deliver to such holder a new Warrant
Certificate or Certificates with respect to any portion not so transferred.
No service charge shall be made to a Holder for any registration of
transfer or exchange of the Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Each taker and holder of this Warrant Certificate by taking or holding
the same, consents and agrees that this Warrant Certificate when duly endorsed
in blank shall be deemed negotiable and that when this Warrant Certificate shall
have been so endorsed, the holder hereof may be treated by the Company, the
Warrant Agent and all other persons dealing with this Warrant Certificate as the
absolute owner hereof for any purpose and as the person entitled to exercise the
rights represented hereby, or to the transfer hereof on the register of the
Company maintained by the Warrant Agent, any notice to the contrary
notwithstanding, but until such transfer on such register, the Company and the
Warrant Agent may treat the registered Holder hereof as the owner for all
purposes.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
<PAGE>
A-4
All terms used in this Warrant Certificate that are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
Copies of the Warrant Agreement are on file at the office of the
Company and the Warrant Agent and may be obtained by writing to the Company or
the Warrant Agent at the following address: Chemical Bank, 450 West 33rd
Street, New York, New York 10001, Attention: Stock Transfer - Administration.
This Warrant Certificate shall not be valid for any purpose until it
shall have been countersigned by the Warrant Agent.
Dated: December , 1994
ROCKEFELLER CENTER PROPERTIES, INC.
By: ________________________________
Name and Title:
Countersigned:
CHEMICAL BANK, Warrant Agent
By: ________________________
Name:
Authorized Officer
<PAGE>
A-5
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: Rockefeller Center Properties, Inc.
The undersigned irrevocably exercises _______________ of the Warrants
for the purchase of one share (subject to adjustment in accordance with the
Warrant Agreement) of Common Stock, par value $.01 per share, of Rockefeller
Center Properties, Inc., for each Warrant represented by the Warrant Certificate
and herewith makes payment of $__________ (such payment being by certified or
official bank check drawn on a New York City bank payable to the order of
Rockefeller Center Properties, Inc.), all at the Exercise Price and on the terms
and conditions specified in the within Warrant Certificate and the Warrant
Agreement therein referred to, surrenders this Warrant Certificate and all
right, title and interest therein to Rockefeller Center Properties, Inc. and
directs that the shares of Common Stock deliverable upon the exercise of such
Warrants be registered in the name and delivered at the address specified below.
Date: _______________
______________________________________________*
(Signature of Owner)
_______________________________________________
(Street Address)
_______________________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_______________________________________________
_______________________
* The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to the Warrant Agent.*
<PAGE>
A-6
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
<PAGE>
A-7
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the within
Warrant Certificate hereby sells, assigns, and transfers unto the Assignee(s)
named below (including the undersigned with respect to any Warrants constituting
a part of the Warrants evidenced by the within Warrant Certificate not being
assigned hereby) all of the right of the undersigned under the within Warrant
Certificate, with respect to the number of Warrants set forth below:
SOCIAL SECURITY
OR OTHER
IDENTIFYING
NAMES OF NUMBER OF NUMBER OF
ASSIGNEES ADDRESS ASSIGNEE(S) WARRANTS
- --------- ------- --------------- ---------
<PAGE>
A-8
and does hereby irrevocably constitute and appoint _______________ the
undersigned's attorney to make such transfer on the books of _______________
maintained for that purpose, with full power of substitution in the premises.
Date: _______________
_____________________________________________*
(Signature of Owner)
______________________________________________
(Street Address)
______________________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_______________________________________________
_______________________
* The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to the Warrant Agent.
<PAGE>
EXHIBIT 4.7
[CONFORMED COPY]
SAR AGREEMENT
between
ROCKEFELLER CENTER PROPERTIES, INC.
and
CHEMICAL BANK,
SAR Agent
Dated as of December 18, 1994
<PAGE>
TABLE OF CONTENTS
PAGE
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. DEFINITIONS
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Certificate of Incorporation. . . . . . . . . . . . . . . . . . . . . . 2
Common Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Convertible Debentures. . . . . . . . . . . . . . . . . . . . . . . . . 2
14% Debentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Debenture Purchase Agreement. . . . . . . . . . . . . . . . . . . . . . 2
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Exchange Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Exercise Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Guaranty Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . 2
GS: Goldman Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . 2
Guaranty Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Independent Financial Expert. . . . . . . . . . . . . . . . . . . . . . . 3
Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
LIBOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Loan Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ownership Restriction . . . . . . . . . . . . . . . . . . . . . . . . . 4
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Piggyback Registration Rights . . . . . . . . . . . . . . . . . . . . . 4
Prospectus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Registration Demand . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Registration Statement. . . . . . . . . . . . . . . . . . . . . . . . . 4
Representative(s) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SAR Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
<PAGE>
ii
SAR Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Securities Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Shelf Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Shelf Registration Statement. . . . . . . . . . . . . . . . . . . . . . 5
Takedown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Telerate Page . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Underlying Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . 5
Underlying Securities . . . . . . . . . . . . . . . . . . . . . . . . . 5
Underlying 14% Debentures . . . . . . . . . . . . . . . . . . . . . . . 5
Underlying Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Warrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Warrant Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Whitehall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. ORIGINAL ISSUE OF SARS
2.1. Form of SAR Certificates. . . . . . . . . . . . . . . . . . . . . 6
2.2. Execution and Delivery of SAR Certificates. . . . . . . . . . . . 6
3. DISTRIBUTIONS ON SARS
4. EXERCISE; EXCHANGE AND EXPIRATION OF SARS.
4.1. Exercise of SARS for 14% Debentures; EXERCISE PRICE . . . . . . . 7
4.2. Exchange of SARS for Warrants; Exchange Price . . . . . . . . . . 8
4.3. Expiration of SARs. . . . . . . . . . . . . . . . . . . . . . . . 8
4.4. Method of Exercise or Exchange. . . . . . . . . . . . . . . . . . 8
4.5. Compliance with the Securities Act. . . . . . . . . . . . . . . . 10
4.6 Compliance with Plan Asset Regulations. . . . . . . . . . . . . . 12
5. REGISTRATION RIGHTS
5.1. Demand Registration . . . . . . . . . . . . . . . . . . . . . . . 13
5.2. Piggyback Registration Rights . . . . . . . . . . . . . . . . . . 16
5.3. Company's Ability to Postpone Registration Rights . . . . . . . . 16
5.4. Holder Withdrawal Rights. . . . . . . . . . . . . . . . . . . . . 17
6. REGISTRATION PROCEDURES
6.1. Covenants of the Company Applicable to All Registration
Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.2. Covenants of the Selling Holders. . . . . . . . . . . . . . . . . 23
6.3. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . 23
6.4. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . 25
<PAGE>
iii
6.5. Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.6. Representations, Warranties and Indemnities to Survive. . . . . . 27
6.7. Rule 144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.8. Participation in Underwritten Offerings . . . . . . . . . . . . . 28
6.9. Lock-Up Agreements. . . . . . . . . . . . . . . . . . . . . . . . 28
7. SAR TRANSFER BOOKS
8. SAR HOLDERS
8.1. No Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . . 30
8.2. Right of Action . . . . . . . . . . . . . . . . . . . . . . . . . 30
9. SAR AGENT
9.1. Nature of Duties and Responsibilities Assumed . . . . . . . . . . 30
9.2. Right to Consult Counsel. . . . . . . . . . . . . . . . . . . . . 32
9.3. Compensation and Reimbursement. . . . . . . . . . . . . . . . . . 32
9.4. SAR Agent May Hold Company Securities . . . . . . . . . . . . . . 32
9.5. Resignation and Removal; Appointment of Successor . . . . . . . . 32
10. COVENANTS AND REPRESENTATIONS AND WARRANTIES
10.1. Covenants of the Company . . . . . . . . . . . . . . . . . . . . 33
10.2 Representations and Warranties of the Company. . . . . . . . . . 34
11. MISCELLANEOUS
11.1. Money and Other Property Deposited with the SAR Agent. . . . . . 36
11.2. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . 36
11.3. Surrender of Certificates. . . . . . . . . . . . . . . . . . . . 36
11.4. Mutilated, Destroyed, Lost and Stolen SAR Certificates . . . . . 37
11.5. Removal of Legends . . . . . . . . . . . . . . . . . . . . . . . 37
11.6. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
11.7. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.8. Persons Benefitting. . . . . . . . . . . . . . . . . . . . . . . 38
11.9. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.10. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.11. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
<PAGE>
iv
EXHIBIT A Form of SAR Certificate . . . . . . . . . . . . . . . . . . . . . A-1
<PAGE>
STOCK APPRECIATION RIGHTS AGREEMENT
AGREEMENT dated as of December 18, 1994 between Rockefeller Center
Properties, Inc., a Delaware corporation (the "Company"), and Chemical Bank, a
New York banking corporation, agent (together with its successors and assigns,
the "SAR Agent").
The Company proposes to issue and deliver stock appreciation rights
certificates (the "SAR Certificates") evidencing up to an aggregate of 5,348,541
of its stock appreciation rights (the "SARs") in connection with the execution
and delivery by the Company of (i) a debenture purchase agreement relating to
the issuance and sale of its 14% Debentures due 2007 (the "14% Debentures") to
Whitehall (as defined herein), (ii) a loan agreement dated the date hereof (the
"Loan Agreement") among the Company, the lenders parties thereto (the "Lenders")
and Goldman Sachs Mortgage Company, as agent, pursuant to which the Lenders will
make loans evidenced by floating rate notes (the "Notes") and (iii) a warrant
agreement, relating to the issuance of Warrants to Whitehall. Each SAR is
exchangeable for Warrants and exercisable for 14% Debentures, as provided
herein.
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the SARs and the respective rights and obligations
thereunder of the Company and the record holders of the SARs, the Company and
the SAR Agent each hereby agrees as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
AFFILIATE: of any Person, any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For purposes of this definition, "control" when used with respect
to any Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
BUSINESS DAY: 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 principal corporate trust office of the SAR Agent is located;
provided, HOWEVER, that if the day in question relates to the determination of
LIBOR, 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 .
<PAGE>
2
CERTIFICATE OF INCORPORATION: the Company's Restated Certificate of
Incorporation, as amended from time to time.
COMMON STOCK: the common stock, par value $.01 per share, of the
Company and any other capital stock of the Company into which such common stock
may be converted or reclassified or that may be issued in respect of, in
exchange for, or in substitution of, such common stock by reason of any stock
splits, stock dividends, distributions, mergers, consolidations or other like
events.
COMPANY: the meaning set forth in the preamble to this Agreement and
its successors and assigns.
CONVERTIBLE DEBENTURES: the Company's outstanding Current Coupon
Convertible Debentures due 2000 and Zero Coupon Convertible Debentures due 2000.
14% DEBENTURES: the meaning set forth in the preamble to this
Agreement.
DEBENTURE PURCHASE AGREEMENT: the debenture purchase agreement dated
the date hereof between the Company and Whitehall Street Real Estate Limited
Partnership V.
EXCHANGE ACT: the Securities Exchange Act of 1934, as amended.
EXCHANGE PRICE: the meaning set forth in Section 4.2(a).
EXERCISE PRICE: the meaning set forth in Section 4.1(a).
EXPIRATION DATE: the meaning set forth in Section 4.3.
HOLDERS: from time to time, the holders of the SARs.
GS: Goldman, Sachs & Co.
GUARANTY OBLIGATIONS: 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
<PAGE>
3
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: with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money, (ii) the deferred
purchase price of assets that 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 the
Employment Retirement Income Security Act of 1974, as amended from time to time,
and the regulations promulgated thereunder or under any qualified plan or
related trust and (x) all other obligations that 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.
INDEPENDENT FINANCIAL EXPERT: a nationally recognized investment
banking firm, ranking in the top ten (as determined by the Securities Dealers
Association or a similar securities information data company) as lead manager
for primary common stock offerings in the year prior to the year in which it is
called upon to give independent financial advice to the Company as described
herein and that does not (and whose directors, officers, employees and
Affiliates do not) have a direct or indirect financial interest in the Company
or any of its Affiliates, that has not been and at the time it is called upon to
give independent financial advice to the Company, is not (and none of whose
directors, officers, employees or Affiliates is) a promoter, director or officer
of the Company or any of its Affiliates or an underwriter or placement agent
with respect to any of the securities of the Company or any of its Affiliates,
and that does not provide any advice or opinions to the Company or any of its
Affiliates except as an Independent Financial Expert.
LENDERS: the meaning set forth in the preamble to this Agreement.
LIBOR: with respect to any date of determination, the interest rate
per annum in effect for deposits in United States dollars in the London
interbank market for a period of
<PAGE>
4
three months as reported on Telerate Page 3750 in the column headed "3MO" for
the date that is two Business Days prior to such date of determination.
Notwithstanding the foregoing, LIBOR for a day that is not a Business Day shall
be deemed to be the rate for the next preceding day that is a Business Day.
LOAN AGREEMENT: the meaning set forth in the preamble to this
Agreement.
NOTES: the meaning set forth in the preamble to this Agreement.
OWNERSHIP RESTRICTION: the meaning set forth in Section 4.2(b).
PERSON: any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
PIGGYBACK REGISTRATION RIGHTS: the meaning set forth in
Section 5.2(a).
PROSPECTUS: 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 5.1 or 5.2 of any of the Company's
securities covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
REGISTRATION DEMAND: the meaning set forth in Section 5.1.
REGISTRATION RIGHTS: the rights of Holders set forth in Sections 5.1
and 5.2 to have SARs registered under the Securities Act for sale under one or
more effective Registration Statements.
REGISTRATION STATEMENT: any registration statement of the Company
pursuant to Section 5.1 or 5.2 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 material incorporated by reference in such registration
statement.
REPRESENTATIVE(S): the meaning set forth in Section 6.8(a).
SAR: the meaning set forth in the preamble to this Agreement.
SAR AGENT: the meaning set forth in the preamble to this Agreement or
the successor or successors of such SAR Agent appointed in accordance with the
terms hereof.
<PAGE>
5
SAR CERTIFICATES: the meaning set forth in the preamble to this
Agreement.
SEC: the Securities and Exchange Commission.
SECURITIES ACT: the Securities Act of 1933, as amended.
SHELF REGISTRATION: the meaning set forth in Section 5.1(c)(i).
SHELF REGISTRATION STATEMENT: the meaning set forth in Section
5.1(c)(i).
TAKEDOWN: the meaning set forth in Section 5.1(c)(ii).
TELERATE PAGE: the display designated as page "3750" and entitled
"BBA US$ Interest Settlement Rate-Recap" on the Telerate Monitor (or such other
page as may replace the 3750 page on the service for the purpose of displaying
London interbank offered rates of major banks).
UNDERLYING COMMON STOCK: the shares of Common Stock issuable or issued
upon exercise of the Warrants.
UNDERLYING SECURITIES: the Underlying 14% Debentures, Underlying
Warrants and the Underlying Common Stock.
UNDERLYING 14% DEBENTURES: 14% Debentures issuable or issued upon the
exercise of any SARs.
UNDERLYING WARRANTS: the Warrants issuable or issued upon the
exchange of any SARs.
WARRANTS: the warrants issued by the Company on the date hereof
pursuant to the Warrant Agreement, and additional warrants issued upon exchange
of SARs hereunder and upon adjustments made pursuant to Sections 6.1 and 6.2 of
the Warrant Agreement.
WARRANT AGREEMENT: the warrant agreement dated the date hereof
between the Company and Chemical Bank, warrant agent.
WHITEHALL: Whitehall Street Real Estate Limited Partnership V, a
Delaware limited partnership, and its Affiliates.
Certain terms, used principally in Sections 5 and 6, are defined in
those Sections.
<PAGE>
6
2. ORIGINAL ISSUE OF SARS.
2.1. FORM OF SAR CERTIFICATES. The SAR Certificates shall be in
registered form only and substantially in the form attached hereto as Exhibit A,
shall be dated the date on which countersigned by the SAR Agent and may have
such legends and endorsements typed, stamped, printed, lithographed or engraved
thereon as provided in Section 4.5(f) and as required by the Certificate of
Incorporation or as may be required to comply with any law or with any rule or
regulation pursuant thereto or with any rule or regulation of any securities
exchange on which the SARs may be listed.
Pending the preparation of definitive SAR Certificates, temporary SAR
Certificates may be issued, which may be printed, lithographed, typewritten,
mimeographed or otherwise produced, which will be substantially of the tenor of
the definitive SAR Certificates in lieu of which they are issued and which are
not required to be countersigned by the SAR Agent.
If temporary SAR Certificates are issued, the Company will cause
definitive SAR Certificates to be prepared without unreasonable delay. After
the preparation of definitive SAR Certificates, the temporary SAR Certificates
shall be exchangeable for definitive SAR Certificates upon surrender of the
temporary SAR Certificates to the SAR Agent, without charge to the Holder. Until
so exchanged the temporary SAR Certificates shall in all respects be entitled to
the same benefits under this Agreement as definitive SAR Certificates.
2.2. EXECUTION AND DELIVERY OF SAR CERTIFICATES. Simultaneously with
the execution of this Agreement, SAR Certificates evidencing up to 5,348,541
SARs shall be executed by the Company and delivered to the SAR Agent for
countersignature, and the SAR Agent shall thereupon countersign and deliver such
SAR Certificates to Whitehall. The SAR Agent is hereby irrevocably authorized
to countersign and deliver SAR Certificates as required by this Section 2.2 or
by Section 7, 11.4 or 11.5. The SAR Certificates shall be executed on behalf
of the Company by its President or Vice President, either manually or by
facsimile signature printed thereon. The SAR Certificates shall be manually
countersigned by the SAR Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company whose signature shall have
been placed upon any of the SAR Certificates shall cease to be such officer of
the Company before countersignature by the SAR Agent and issue and delivery
thereof, such SAR Certificates may, nevertheless, be countersigned by the SAR
Agent and issued and delivered with the same force and effect as though such
person had not ceased to be such officer of the Company.
<PAGE>
7
3. DISTRIBUTIONS ON SARS.
Each Holder will be entitled to an annual distribution for each SAR
payable on January 15 of each year commencing on January 15, 1996 with respect
to the prior calendar year equal to the positive difference, if any, between the
aggregate amount of dividends paid per share of Common Stock during such prior
calendar year and (i) with respect to years ending on or before December 31,
2000, $0.60 or (ii) thereafter, the product of the exercise price per share of
Common Stock then in effect under the Warrant Agreement multiplied by LIBOR in
effect on the preceding December 31 plus 1%; PROVIDED, HOWEVER, that in the
event of an adjustment of the type described in Section 6.1 of the Warrant
Agreement, an equivalent adjustment to the per share amount in (i) above shall
be made in accordance with such adjustment described in such Section 6.1.
At any time when the Company declares any dividend on its Common
Stock, it shall give notice to the Holders of all the SARs then outstanding of
any such declaration not less than 15 days prior to the related record date for
payment of the dividend so declared.
4. EXERCISE; EXCHANGE AND EXPIRATION OF SARS.
4.1. EXERCISE OF SARS FOR 14% DEBENTURES; EXERCISE PRICE. (a) Each
SAR Certificate shall, when countersigned by the SAR Agent, entitle the Holder
thereof, subject to the provisions of this Agreement, to acquire a principal
amount of 14% Debentures equal to the product of (A) (i) the average of the
daily market prices of the Common Stock for the 30 consecutive trading days
immediately preceding the date of exercise minus the exercise price per share of
Common Stock then in effect under the Warrant Agreement times (B) the number of
shares of Common Stock to which such Holder would be entitled upon an exchange
of its SARs for Warrants in accordance with Section 4.2 and a subsequent
exercise for shares of Common Stock thereof pursuant to the Warrant Agreement at
an exercise price (the "Exercise Price") of $0.00 per SAR. Certificates
representing 14% Debentures will not be issued for amounts less than $1,000, but
cash will be paid in lieu of such amounts.
(b) Subject to the terms and conditions set forth herein, the SARs
shall be exercisable for 14% Debentures from time to time on any Business Day
beginning on the earliest of (i) the time immediately after the Loans (as
defined in the Loan Agreement) have been made by the Lenders and the 14%
Debentures have been purchased by Whitehall, (ii) such time as any condition
precedent specified in Section 3.01 of the Loan Agreement (other than 3.01 (c)
as it relates to Sections 7.01(f) and (g) thereof) is no longer capable of being
<PAGE>
8
fulfilled in accordance with the terms thereof and (iii) March 31, 1995 and
ending on the Expiration Date in the manner provided for herein.
4.2. EXCHANGE OF SARS FOR WARRANTS; EXCHANGE PRICE. (a) Each SAR
Certificate shall, when countersigned by the SAR Agent, entitle the Holder
thereof, subject to the provisions of this Agreement, to acquire one Warrant for
each SAR evidenced thereby at an exchange price (the "Exchange Price") of $0.00
per SAR.
(b) Subject to the terms and conditions set forth herein, the SARs
shall be exchangeable for Warrants from time to time on any Business Day
beginning on the earliest of (i) the time immediately after the Loans under the
Loan Agreement have been made by the Lenders and the 14% Debentures have been
purchased by Whitehall, (ii) such time as any condition precedent specified in
Section 3.01 of the Loan Agreement (other than 3.01 (c) as it relates to
Sections 7.01(f) and (g) thereof) is no longer capable of being fulfilled in
accordance with the terms thereof and (iii) March 31, 1995 and ending on the
Expiration Date in the manner provided for herein; PROVIDED, HOWEVER, that for
so long as the Certificate of Incorporation restricts ownership of the Common
Stock by any one Person to no more than 9.8% of the outstanding shares of Common
Stock (the "Ownership Restriction"), a Holder may not exchange any SARs for
Warrants if, as a result of such exchange, such Holder would receive Warrants
exercisable into a number of shares of Common Stock that, when added to the
number, if any, of shares of Common Stock then held by such Holder plus shares
of Common Stock issuable upon exercise of Warrants then held by such Holder,
would equal more than 9.8% of the number of shares of Common Stock then
outstanding and Common Stock exchangeable for Warrants then outstanding.
Upon the execution of an amendment to the Certificate of Incorporation
with respect to the Ownership Restriction, the SARs shall automatically be
exchanged for Warrants on a one-for-one basis, subject to any adjustments made
on or prior to the date thereof, to the extent permitted under such amendment.
In such event, the SAR Agent will notify the Holders affected thereby by first
class mail and within 15 days of the date of such notice, such Holders shall
surrender their SAR Certificates for exchange to the extent permitted under such
amendment. Any such SARs not so surrendered by the close of business on the
fifteenth day following the date of such notice shall automatically be deemed to
have been exchanged.
4.3. EXPIRATION OF SARs. The SARs shall expire and the rights of the
Holders of such SARs shall terminate at the close of business on the earliest of
(i) March 31, 1995 in the event the Lenders fail to fund under the Loan
Agreement even though all of the conditions precedent set forth in Section 3.01
thereof have been satisfied, (ii) December 31, 2007 and (iii) the first day on
which no SARs shall be outstanding.
<PAGE>
9
4.4. METHOD OF EXERCISE OR EXCHANGE. In order to exercise or
exchange an SAR, the Holder thereof must surrender the SAR Certificate
evidencing such SAR to the SAR Agent, with the form on the reverse of or
attached to the SAR Certificate duly executed, together with any required
payment in full of the Exercise Price or Exchange Price, as the case may be,
then in effect for 14% Debentures or Warrants as to which an SAR Certificate is
submitted for exercise or exchange. Any such payment of the Exercise Price or
Exchange Price shall be by certified or official bank check drawn on a New York
City bank payable to the order of the Company. All funds received upon the
tender of SARs shall be deposited by the SAR Agent for the account of the
Company, unless otherwise instructed in writing by the Company.
If fewer than all the SARs represented by an SAR Certificate are
surrendered, such SAR Certificate shall be surrendered and a new SAR Certificate
of the same tenor and for the number of SARs that were not surrendered shall
promptly be executed and delivered to the SAR Agent by the Company. The SAR
Agent shall promptly countersign the new SAR Certificate, register it in such
name or names as may be directed in writing by the Holder and deliver the new
SAR Certificate to the Person or Persons entitled to receive the same.
Upon surrender of an SAR Certificate in conformity with the foregoing
provisions, the SAR Agent shall thereupon promptly notify the Company, and the
Company shall transfer to the Holder of such SAR Certificate appropriate
evidence of ownership of either 14% Debentures or Warrants or any other
securities or property (including any money) to which the Holder is entitled,
registered or otherwise placed in, or payable to the order of, such name or
names as may be directed in writing by the Holder, and shall deliver such
evidence of ownership and any other securities or property (including any money)
to the Person or Persons entitled to receive the same or, with respect to SARs
which, but for the last sentence of Section 4.1(a), would have been exercised
for 14% Debentures in a principal amount of less than $1,000, cash in such
amount. A Holder shall be deemed to own and have all of the rights associated
with any Underlying Securities or other securities or property (including money)
to which it is entitled pursuant to this Agreement upon the surrender of an SAR
Certificate in accordance with this Section 4.4.
Notwithstanding anything to the contrary contained herein, in the
event of the occurrence of a business combination pursuant to which the
unaffiliated stockholders of the Company are given the opportunity to exchange
all or a portion of such stockholders' shares of Common Stock, the Holders may
exercise their SARs by surrendering such SARs to the SAR Agent, with the form on
the reverse of or attached to the SAR Certificate duly executed, together with
an indication that they are exercising these SARs pursuant to this paragraph
and, the SAR Agent shall thereupon promptly notify the Company of such
surrender, and the Company shall promptly (i) in the case of only cash
consideration, pay to each Holder an amount equal to the number of shares of
Common Stock to which such
<PAGE>
10
Holder would be entitled upon an exchange of its SARs for Warrants in accordance
with Section 4.2 and a subsequent exercise for shares of Common Stock thereof
pursuant to the Warrant Agreement multiplied by the difference between such cash
consideration and the exercise price then in effect under the Warrant Agreement,
on a per share of Common Stock basis, (ii) in the case of noncash consideration
or any combination of cash and non-cash consideration, upon receipt from each
Holder of its Warrant Certificates, deliver to each such Holder the difference
between (x) the cash, if any, and the fair market value of such noncash
consideration as determined by an Independent Financial Expert and (y) the
exercise price then in effect under the Warrant Agreement on a per share of
Common Stock basis.
4.5. COMPLIANCE WITH THE SECURITIES ACT. (a) No SAR may be
exercised or exchanged and no SAR nor Underlying Security may be sold,
transferred or otherwise disposed of (any such sale, transfer or other
disposition, a "sale"), except in compliance with this Section 4.5 and Section
4.6 below.
(b) A Holder may exercise or exchange its SARs if it is an
"accredited investor" or a "qualified institutional buyer", as defined in
Regulation D and Rule 144A under the Securities Act, respectively, and a Holder
may sell its SARs or Underlying Securities to a transferee that is an
"accredited investor" or a "qualified institutional buyer" as defined in such
Regulation and such Rule, respectively, provided that each of the following
conditions is satisfied:
(i) with respect to any "accredited investor" that is not an
institution, such Holder or transferee, as the case may be provides
certification establishing to the reasonable satisfaction of the Company
that it is an "accredited investor";
(ii) such Holder or transferee represents that it is acquiring the
Underlying Securities (in the case of an exercise or exchange) or the SARs
or the Underlying Securities (in the case of a sale) for its own account
and that it is not acquiring such Underlying Securities or SARs 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 applicable state thereof,
but subject, nevertheless, to the disposition of its property being at all
times within its control; and
(iii) such Holder or transferee agrees to be bound by the provisions
of this Section 4.5 with respect to any exercise or exchange of the SARs
and any sale of the SARs or Underlying Securities.
(c) A Holder may exercise or exchange its SARs and may sell its SARs
or any Underlying Securities in accordance with Regulation S of the Securities
Act; PROVIDED that such Holder and the Company shall take, and cause any
transferee to take, all actions
<PAGE>
11
that such Holder and the Company agree is reasonably necessary to qualify such a
transaction under Regulation S of the Securities Act.
(d) A Holder may exercise or exchange its SARs or sell its SARs or
Underlying Securities if:
(i) such Holder gives written notice to the Company of its intention
to exercise, exchange or effect such sale, which notice (A) shall describe
the manner and circumstances of the proposed transaction in reasonable
detail and (B) shall designate the counsel for such Holder, which counsel
shall be reasonably satisfactory to the Company;
(ii) counsel for the Holder shall render a customary opinion, to the
effect that such proposed exercise, exchange or sale may be effected
without registration under the Securities Act or under applicable Blue Sky
laws; and
(iii) such Holder or transferee complies with Sections 4.5(b)(ii) and
4.5(b)(iii).
(e) Subject to Section 11.5, all certificates representing Underlying
Warrants and Underlying 14% Debentures issued pursuant to the exercise or
exchange of the SARs shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED
UNDER APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES 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 STOCK APPRECIATION RIGHTS AGREEMENT DATED AS OF
DECEMBER 18, 1994 BETWEEN ROCKEFELLER CENTER PROPERTIES, INC. (THE
"COMPANY") AND CHEMICAL BANK, AGENT. A COPY OF SUCH AGREEMENT IS
AVAILABLE AT THE OFFICES OF THE COMPANY.
(f) Subject to Section 11.5, each certificate representing the SARs
shall bear the following legend:
THESE STOCK APPRECIATION RIGHTS AND THE SECURITIES ISSUABLE UPON THE
EXERCISE OR EXCHANGE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933,
<PAGE>
12
AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS. THESE
STOCK APPRECIATION RIGHTS AND SUCH SECURITIES 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 STOCK APPRECIATION RIGHTS AGREEMENT DATED AS OF DECEMBER 18,
1994 BETWEEN ROCKEFELLER CENTER PROPERTIES, INC. (THE "COMPANY") AND
CHEMICAL BANK, AGENT. A COPY OF SUCH AGREEMENT IS AVAILABLE AT THE
OFFICES OF THE COMPANY.
AMONG OTHER THINGS, THIS STOCK APPRECIATION RIGHTS CERTIFICATE
PROVIDES THAT THE STOCK APPRECIATION RIGHTS MAY BE TERMINATE UNDER
CERTAIN CIRCUMSTANCES.
(g) The provisions of Section 4.5(a) shall not apply to:
(i) any exercise of SARS for 14% Debentures or exchange of SARS for
Warrants, provided that the Exercise Price or Exchange Price, as the case
may be, then in effect is $0.00 and the transaction otherwise complies with
the requirements of Section 3(a)(9) of the Securities Act.
(ii) any exercise or exchange of an SAR in connection with a sale of
Underlying Securities in a transaction that is registered under the
Securities Act.
(iii) any sale of an SAR or Underlying Security in a transaction that
is registered under the Securities Act.
(iii) any exercise or exchange of an SAR or subsequent sale of an SAR
or Underlying Security if such SAR or Underlying Security had been sold in
connection with a transaction that was registered under the Securities Act.
4.6 COMPLIANCE WITH PLAN ASSET REGULATIONS. Until such time as the
SARs and the Underlying Securities constitute "publicly-offered securities"
within the meaning of Department of Labor Regulation 29 CFR Sect. 2510.3-101(b),
as amended, and the advisory opinions or other administrative interpretations
thereunder (collectively, the "Plan Asset Regulations"), no SAR may be sold to a
"benefit plan investor" within the meaning of the Plan Asset Regulations if the
result of such sale would be that benefit plan investors hold 25% or of the
nonpublicly-offered shares of Common Stock, an a fully diluted basis, assuming,
among other things, (i) an exercise of all outstanding nonpublicly-offerered
Warrants for Common Stock, (ii) an exchange of all outstanding nonpublicly-
offerered SARs
<PAGE>
13
for Warrants and a subsequent exercise of such Warrants for Common Stock and
(iii) a conversion of all outstanding Convertible Debentures for shares of
Common Stock
5. REGISTRATION RIGHTS.
5.1. DEMAND REGISTRATION. (a) At any time after the 1995 annual
meeting of the Company's stockholders at which a proposal is made with respect
to the Ownership Restriction, the Holders of (i) at least 5% of the aggregate
number of SARs then outstanding shall have the right to request in writing that
the Company effect a registration of such Holders' SARs and the Underlying
Securities pursuant to the provisions of this Section 5.1 or (ii) at least 1% of
the SARs then deemed outstanding shall have the right to request in writing that
the Company effect a registration of such Holders' SARs and Underlying
Securities pursuant to a Takedown under this Section 4.1 (each such request, a
"Registration Demand"). A Registration Demand shall specify the number of SARs
that each such Holder proposes to sell in the offering. If no Shelf
Registration Statement (as defined in Section 5(c)(i) below) shall be effective
as of the date of the Registration Demand, the demanding Holders may elect to
register such SARs in accordance with either Section 5.1(c)(i) or Section
5.1(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 SARs pursuant to Section 5.1(c)(ii). The Holders may
make four Registration Demands pursuant to Sections 5.1(c)(i) and 5.1(d) and
four Registration Demands per year pursuant to an existing Shelf Registration
Statement pursuant to Section 4.1(c)(ii) for which the Company will pay and bear
all costs and expenses in accordance with Section 6.3 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 SARs at least 30 days prior to the initial filing of a Registration
Statement relating to such Registration Demand. Each of the other Holders 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 SARs and Underlying
Securities in such Registration Statement. Upon receipt of a Registration
Demand that is a Takedown, a representative of the selling holders shall give
written notice thereof to all of the Holders at least three Business Days prior
to the initial filing of a Registration Statement relating to such Registration
Demand. Each of the other 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 SARs and Underlying Securities in such Registration
Statement.
<PAGE>
14
(c) (i) As promptly as practicable and in no event later than
60 days after the Company receives a Registration Demand electing to register
SARs pursuant to this Section 5.2(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 SARs and all of the Underlying Securities, 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 SARS 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 the 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 pursuant to which a Holder is
deemed to have elected to register SARs pursuant to an existing Shelf
Registration Statement (a "Takedown"), the Company shall file 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 SARs 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
SARs pursuant to the Shelf 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.
<PAGE>
15
(d) As promptly as practicable and in no event later than 60 days
after the Company receives a Registration Demand electing to register SARs
pursuant to this Section 5.1(d), the Company shall file with the SEC a
Registration Statement, on any form that shall be available and appropriate for
the sale of the SARs and the Underlying Securities in accordance with the
intended method of distribution thereof. The Company shall include in such
Registration Statement all of the SARs of such requesting Holders that such
Holders have requested to be included therein pursuant to Sections 5.1(a) and
5.1(b); PROVIDED, HOWEVER, that, if the requested registration involves an
underwritten offering, the SARs to be registered may be reduced if the managing
underwriter delivers a notice (a "Cutback Notice") pursuant to Section 5.1(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 SARs, 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 SARs pursuant to a Registration Demand.
(f) If a Registration Demand involves an underwritten offering, GS
shall be the managing underwriter for such offering unless GS 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.
(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 Shares"), the provisions of this Section 5.1(g) shall be
applicable if the managing underwriter delivers a Cutback Notice stating that,
in its opinion, the number of Company Shares and the number of SARs that the
Holders have requested to be registered exceeds the maximum number 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 Shares and SARs requested to be registered shall
be reduced in the following order until the number of securities to be
registered has been reduced to the maximum number of securities specified by the
managing underwriter in the Cutback Notice: first, the Company Shares and
second, the SARs in proportion to the respective number of SARs that each Holder
has requested to be registered.
(h) No Registration Demand (other than a Takedown) may be made until
the expiration of six months following the completion of the distribution of the
securities
<PAGE>
16
registered under any Registration Statement that has been filed and has become
effective pursuant to a prior Registration Demand.
(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
number of SARs then outstanding.
5.2. 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 equity securities of the Company, the Company shall
give written notice to all the Holders at least 30 days prior to the initial
filing of the Registration Statement relating to such offering. Each such
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
SARs in such Registration Statement ("Piggyback Registration Rights").
(b) In the event that the proposed offering is an underwritten
offering covering shares of Common Stock to be offered for the account of the
Company (the "Company Shares"), the provisions of this Section 5.2(b) shall be
applicable if the managing underwriter delivers a Cutback Notice stating that,
in its opinion, the aggregate number of Company Shares and the number of SARs
that the Holders have requested to be registered exceeds the maximum number 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 Shares and SARs requested to be registered
shall be reduced in the following order until the number of securities to be
offered has been reduced to the maximum number of securities specified by the
managing underwriter in the Cutback Notice: first, the SARs in proportion to
the respective number of SARs that each Holder has requested to be registered
and second, the Company Shares.
(c) The provisions of this Section 5.2 shall not be applicable in
connection with (i) a registration statement filed by the Company pursuant to
Section 5.1 or (ii) a transaction in which a registration statement is filed by
the Company on Form S-4 or S-8 or any successor forms.
5.3. 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
<PAGE>
17
the Company; PROVIDED, HOWEVER, that such 90-day period shall be deducted from
the six-month interval allowed between Registration Demands pursuant to
Section 5.1(i).
(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 SARs 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 SARs 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 5.3, specifying the reasons
therefor.
5.4. HOLDER WITHDRAWAL RIGHTS. The Company shall withdraw from
registration any SARs on request of a Holder; PROVIDED that, in the case of a
Registration Demand under Section 5.1, 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 5.1(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 SARs by a Holder, the
number of SARs remaining subject to such Registration Statement is less than 5%
of the aggregate number of SARs 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.
6. REGISTRATION PROCEDURES.
6.1. COVENANTS OF THE COMPANY APPLICABLE TO ALL REGISTRATION
STATEMENTS. This Section 6.1 applies to all Registration Statements filed by the
Company and referred to in Section 5.1 or 5.2. 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 participating in such offering (each, a "selling holder") and
each underwriter or agent participating therein as follows:
<PAGE>
18
(a) The Company will notify the selling holders and the managing
underwriter or agent, immediately, and 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 6.1(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 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
<PAGE>
19
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 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 6.1(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
<PAGE>
20
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 Whitehall for so long as it is a Holder or the
Representative(s), 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 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
SARs; 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 SARs; 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; 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).
<PAGE>
21
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 any Registerable Common Stock 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 or as an
underwriter, a placement or sales agent or a broker or dealer in respect of
such Registerable Common Stock 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 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 Registerable
Common Stock, 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 Registerable Common Stock, (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 6.4 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 6.1, 6.2, 6.3, 6.4,
6.5, 6.8 and 6.9, with such changes therein as may be agreed to by the
managing underwriter or agent, the Company and the selling holders.
<PAGE>
22
(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 compliance with Section 6.1(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 SARs
or Underlying Securities, 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 and qualify a trust indenture
relating to the 14% Debentures (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
<PAGE>
23
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 14% Debentures 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.
6.2. 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 6.1(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 6.1(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
amended Prospectus contemplated by Section 6.1(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).
<PAGE>
24
(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.
6.3. 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 5.1 or 5.2,
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 6.3(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 underwriting discounts and
commissions and transfer taxes, if any;
(v) the qualification of the Registered Securities Stock under
applicable securities laws in accordance with Section 6.1(g) and any filing
for review of the offering with the National Association of Securities
Dealers, Inc., 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 in
connection with any reserve share program; 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 6.1(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
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25
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 stock 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.
6.4. INDEMNIFICATION. (a) In connection with each registration
pursuant to Section 5.1 or 5.2, 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 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;
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26
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 6.4(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 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 6.4(a) and of the
selling holders under Section 6.4(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 6.4(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
<PAGE>
27
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 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.
6.5. CONTRIBUTION. (a) In order to provide for just and equitable
contribution in circumstances under which the indemnity provided for in this
Section 6 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 6.5, 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.
6.6. REPRESENTATIONS, WARRANTIES AND INDEMNITIES TO SURVIVE. The
indemnity and contribution agreements contained in this Section 6 and the
representations and warranties of the Company referred to in Section 6.1(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
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28
underwriter or agent or controlling person or (iii) the consummation of the sale
or successive resales of the Registered Securities.
6.7. 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 Registrable Common Stock may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Common
Stock 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 Registrable Common
Stock, the Company will deliver to such Holder a written statement as to whether
it has complied with such requirements.
6.8. PARTICIPATION IN UNDERWRITTEN OFFERINGS. No Holder 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 shares of Registrable
Common Stock 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 stockholders and the underwriters, which underwriting agreement
shall comply with the provisions of this Section 6.
(c) Such Holder executes all questionnaires and other documents
required by the underwriting agreement to be executed by such Holder.
6.9. 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 Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock, other than any such sale or
distribution of Common Stock upon exercise of the Company's Warrants, in the
case of any registration pursuant to Section 5.1, for a period of 90 days from
the effective date of the Registration Statement pertaining to such Registrable
Common Stock.
(b) Each Holder of Registrable Common Stock whose Registrable Common
Stock is covered by a Registration Statement filed pursuant to Section 5.1 or
5.2 agrees that
<PAGE>
29
it will not, directly or indirectly, sell, offer to sell, grant any option for
the sale of, or otherwise dispose of, any shares of Common Stock or any Warrants
or other securities convertible into or exchangeable or exercisable for Common
Stock, for a period of 90 days from the effective date of the Registration
Statement pertaining to such Registrable Common Stock.
(c) The lock-up agreements set forth in Sections 6.9(a) and 6.9(b)
shall be subject to customary exceptions that may be contained in an
underwriting agreement if any such registration involves an underwritten
offering.
7. SAR TRANSFER BOOKS.
The SAR Certificates shall be issued in registered form only. The
Company shall cause to be kept at the office of the SAR Agent a register in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of SAR Certificates and of transfers or
exchanges of SAR Certificates as herein provided.
At the option of the Holder, SAR Certificates may be exchanged at such
office, and upon payment of the charges hereinafter provided. Whenever any SAR
Certificates are so surrendered for exchange, the Company shall execute, and the
SAR Agent shall countersign and deliver, the SAR Certificates that the Holder
making the exchange is entitled to receive.
All SAR Certificates issued upon any registration of transfer or
exchange of SAR Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the SAR Certificates surrendered for such registration of transfer
or exchange.
Every SAR Certificate surrendered for registration of transfer or
exchange shall (if so required by the Company or the SAR Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the SAR Agent, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of SAR Certificates. 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 SAR Certificates.
Any SAR Certificate when duly endorsed in blank shall be deemed
negotiable and when an SAR Certificate shall have been so endorsed, the Holder
thereof may be treated by the Company, the SAR Agent and all other persons
dealing therewith as the absolute
<PAGE>
30
owner thereof for any purpose and as the Person entitled to exercise the rights
represented thereby, or to the transfer thereof on the register of the Company
maintained by the SAR Agent, any notice to the contrary notwithstanding; but
until such transfer on such register, the Company and the SAR Agent may treat
the registered Holder thereof as the owner for all purposes.
8. SAR HOLDERS.
8.1. NO VOTING RIGHTS. Except as provided below, no Holder of an SAR
Certificate, as such, shall be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to vote, to consent, to
exercise any preemptive right, to receive any notice of meetings of stockholders
for the election of directors of the Company or any other matter or to receive
any notice of any proceedings of the Company. Notwithstanding the foregoing,
Holders of SARs that are exercisable pursuant to Section 4.1(b) will be entitled
to receive at the addresses shown in the register of the Company maintained by
the SAR Agent notice of all meetings of stockholders of the Company and the
Company will submit any item that may be submitted to stockholders for
consideration (other than elections of directors, ratifications of appointments
of auditors or amendments to Article Ninth of the Certificate of Incorporation)
to such Holders prior to submission to stockholders for purposes of determining
the number of SARs that would have approved of such action had such Holders and
holders of Warrants been entitled to vote on such matters. In order to make
such a determination, the Holders shall appoint a representative (who may be the
same Person appointed by the holders of Warrants pursuant to the Warrant
Agreement) who shall poll the Holders and the holders of Warrants in respect of
any such action within five Business Days of the date of receipt of the notice
from the Company as to any such action. If no response is given by such
representative to the Company prior to the expiration of such period, all of the
Holders shall be deemed to have consented to the proposed action.
8.2. RIGHT OF ACTION. All rights of action in respect of this
Agreement are vested in the Holders of the SARs, and any Holder of any SAR,
without the consent of the SAR Agent or the Holder of any other SAR, may, on
such Holder's own behalf and for such Holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such Holder's right to exercise
or exchange such Holder's SARs in the manner provided in this Agreement.
9. SAR AGENT.
9.1. NATURE OF DUTIES AND RESPONSIBILITIES ASSUMED. The Company
hereby appoints the SAR Agent to act as agent of the Company as set forth in
this Agreement. The
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31
SAR Agent hereby accepts such appointment as agent of the Company and agrees to
perform that agency upon the terms and conditions herein set forth, by all of
which the Company and the Holders of SARs, by their acceptance thereof, shall be
bound. The SAR Agent shall not by countersigning SAR Certificates or by any
other act hereunder be deemed to make any representations as to validity or
authorization of the SARs or the SAR Certificates (except as to its
countersignature thereon) or of any securities or other property delivered upon
exercise or exchange or tender of any SAR, or as to the accuracy of the
computation of the Exercise Price or Exchange Price or the number or kind or
amount of stock or other securities or other property deliverable upon exercise
or exchange of any SAR, or the correctness of the representations of the Company
made in such certificates that the SAR Agent receives. The SAR Agent shall not
have any duty to calculate the Exercise Price or Exchange Price, the kind and
amount of Warrants, 14% Debentures or other securities or any property
receivable by Holders upon the exercise, exchange or tender SARs required from
time to time or the distributions on the SARs pursuant to Section 3, and the SAR
Agent shall have no duty or responsibility in determining the accuracy or
correctness of such calculation. The SAR Agent shall not (a) be liable for any
recital or statement of fact contained herein or in the SAR Certificates or for
any action taken, suffered or omitted by it in good faith on the belief that any
SAR Certificate or any other documents or any signatures are genuine or properly
authorized, (b) be responsible for any failure on the part of the Company to
comply with any of its covenants and obligations contained in this Agreement or
in the SAR Certificates or (c) be liable for any act or omission in connection
with this Agreement except for its own negligence or willful misconduct. The
SAR Agent is hereby authorized to accept instructions with respect to the
performance of its duties hereunder from the President, any Vice President or
the Secretary of the Company and to apply to any such officer for instructions
(which instructions will be promptly given in writing when requested) and the
SAR Agent shall not be liable for any action taken or suffered to be taken by it
in good faith in accordance with the instructions of any such officer, but in
its discretion the SAR Agent may in lieu thereof accept other evidence of such
or may require such further or additional evidence as it may deem reasonable.
The SAR Agent may execute and exercise any of the rights and powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys, agents or employees, provided reasonable care has been exercised
in the selection and in the continued employment of any such attorney, agent or
employee. The SAR Agent shall not be under any obligation or duty to institute,
appear in or defend any action, suit or legal proceeding in respect hereof,
unless first indemnified to its satisfaction, but this provision shall not
affect the power of the SAR Agent to take such action as the SAR Agent may
consider proper, whether with or without such indemnity. The SAR Agent shall
promptly notify the Company in writing of any claim made or action, suit or
proceeding instituted against it arising out of or in connection with this
Agreement.
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32
The Company will perform, execute, acknowledge and deliver or cause to
be performed, executed, acknowledged and delivered all such further acts,
instruments and assurances as may reasonably be required by the SAR Agent in
order to enable it to carry out or perform its duties under this Agreement.
The SAR Agent shall act solely as agent of the Company hereunder. The
SAR Agent shall not be liable except for the failure to perform such duties as
are specifically set forth herein, and no implied covenants or obligations shall
be read into this Agreement against the SAR Agent, whose duties and obligations
shall be determined solely by the express provisions hereof.
9.2. RIGHT TO CONSULT COUNSEL. The SAR Agent may at any time consult
with competent legal counsel, and the SAR Agent shall incur no liability or
responsibility to the Company or to any Holder for any action taken, suffered or
omitted by it in good faith in accordance with the opinion or advice of such
counsel.
9.3. COMPENSATION AND REIMBURSEMENT. The Company agrees to pay to
the SAR Agent from time to time compensation for all services rendered by it
hereunder as the Company and the SAR Agent may agree from time to time, and to
reimburse the SAR Agent for reasonable expenses and disbursements incurred in
connection with the execution and administration of this Agreement (including
the reasonable compensation and the expenses of its counsel), and further agrees
to indemnify the SAR Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
9.4. SAR AGENT MAY HOLD COMPANY SECURITIES. The SAR Agent and any
stockholder, director, officer or employee of the SAR Agent may buy, sell or
deal in any of the SARs or other securities of the Company or its Affiliates or
become pecuniarily interested in transactions in which the Company or its
Affiliates may be interested, or contract with or lend money to the Company or
its Affiliates or otherwise act as fully and freely as though it were not the
SAR Agent under this Agreement. Nothing herein shall preclude the SAR Agent
from acting in any other capacity for the Company or for any other legal entity.
9.5. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the SAR Agent and no appointment of a successor
warrant agent shall become effective until the acceptance of appointment by the
successor warrant agent as provided herein. The SAR Agent may resign its duties
and be discharged from all further duties and liability hereunder (except
liability arising as a result of the SAR Agent's own negligence or willful
misconduct) after giving written notice to the Company. The Company
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33
may remove the SAR Agent upon written notice, and the SAR Agent shall thereupon
in like manner be discharged from all further duties and liabilities hereunder,
except as aforesaid. The SAR Agent shall, at the Company's expense, cause to be
mailed (by first-class mail, postage prepaid) to each Holder of an SAR at his
last address as shown on the register of the Company maintained by the SAR Agent
a copy of said notice of resignation or notice of removal, as the case may be.
Upon such resignation or removal, the Company shall appoint in writing a new SAR
agent. If the Company shall fail to make such appointment within a period of
20 days after it has been notified in writing of such resignation by the
resigning SAR Agent or after such removal, then the Holder of any SAR may apply
to any court of competent jurisdiction for the appointment of a new SAR agent.
Any new SAR agent, whether appointed by the Company or by such a court, shall be
a corporation doing business under the laws of the United States or any state
thereof, in good standing and having a combined capital and surplus of not less
than $50,000,000. The combined capital and surplus of any such new SAR agent
shall be deemed to be the combined capital and surplus as set forth in the most
recent annual report of its condition published by such SAR agent prior to its
appointment, provided that such reports are published at least annually pursuant
to law or to the requirements of a Federal or state supervising or examining
authority. After acceptance in writing of such appointment by the new SAR
agent, it shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as the SAR Agent,
without any further assurance, conveyance, act or deed; but if for any reason it
shall be necessary or expedient to execute and deliver any further assurance,
conveyance, act or deed, the same shall be done at the expense of the Company
and shall be legally and validly executed and delivered by the resigning or
removed SAR Agent. Not later than the effective date of any such appointment,
the Company shall give notice thereof to the resigning or removed SAR Agent.
Failure to give any notice provided for in this Section, however, or any defect
therein, shall not affect the legality or validity of the resignation of the SAR
Agent or the appointment of a new SAR agent, as the case may be.
(b) Any corporation into which the SAR Agent or any new SAR agent may
be merged or any corporation resulting from any consolidation to which the SAR
Agent or any new SAR Agent shall be a party, shall be a successor SAR Agent
under this Agreement without any further act, provided that such corporation
would be eligible for appointment as successor to the SAR Agent under the
provisions of Section 9.5(a). Any such successor SAR agent shall promptly cause
notice of its succession as SAR Agent to be mailed (by first-class mail, postage
prepaid) to each Holder of an SAR at such Holder's last address as shown on the
register of the Company maintained by the SAR Agent.
10. COVENANTS AND REPRESENTATIONS AND WARRANTIES.
10.1. COVENANTS OF THE COMPANY. The Company will not contract,
create, incur, assume or permit to exist any Indebtedness, except:
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34
(i) Indebtedness arising under the Loan Agreement and the other Loan
Documents (as defined in the Loan Agreement);
(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 of the Loan Agreement) 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 (as defined in the Loan Agreement) 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 Borrower to cover
working capital needs; and
(vi) 14% Debentures issued in connection with the exercise of Stock
Appreciation Rights.
10.2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants that, as of the Closing Date:
(a) EXISTENCE, POWER AND OWNERSHIP. (i) 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.
(ii) 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.
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35
(b) AUTHORIZATION. It has the corporate power and authority to enter
into this Agreement and to perform its obligations under, and consummate the
transactions contemplated by, this Agreement and has by proper action duly
authorized the execution and delivery of this Agreement.
(c) NO CONFLICTS OR CONSENTS. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated herein,
nor the performance of and compliance with the terms and provisions hereof 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
this Agreement) upon or with respect to its properties.
(d) 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 the SARs.
(e) ENFORCEABLE OBLIGATIONS. This Agreement has been duly executed
and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms subject, as
to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(f) 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. As of the date hereof, no
shares of Common Stock are held in treasury and no shares of Common Stock are
reserved for issuance upon exercise of 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 Common Stock is duly authorized, validly issued, fully paid
and non-assessable. Except for the transactions contemplated by this Agreement,
the other Loan Documents (as defined in the Loan Agreement) and except in
respect of the Company's Dividend Reinvestment Plan and indenture relating to
the Convertible Debentures, 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
<PAGE>
36
and convertible into or exchangeable for, or giving any Person a right to
subscribe for or acquire, capital stock of the Company.
(g) PERCENTAGE INTERESTS. The SARs and Warrants issued and
outstanding on the date hereof, assuming, with respect to SARS, the exchange
thereof for Warrants and, with respect to Warrants, the exercise thereof for
Common Stock, and assuming no conversion of Convertible Debentures, represent in
the aggregate 19.9% of the issued and outstanding Common Stock on a fully
diluted basis (I.E., taking into account the Warrants and SARs but not including
the Convertible Debentures).
11. MISCELLANEOUS.
11.1. MONEY AND OTHER PROPERTY DEPOSITED WITH THE SAR AGENT. Any
moneys, securities or other property which at any time shall be deposited by the
Company or on its behalf with the SAR Agent pursuant to this Agreement shall be
and are hereby assigned, transferred and set over to the SAR Agent in trust for
the purpose for which such moneys, securities or other property shall have been
deposited; but such moneys, securities or other property need not be segregated
from other funds, securities or other property except to the extent required by
law. The SAR Agent shall distribute any money deposited with it for payment and
distribution to the Holders by mailing by first-class mail a check in such
amount as is appropriate, to each such Holder at the address shown on the SAR
register of the Company, or as it may be otherwise directed in writing by such
Holder, upon surrender of such Holder's SARs. Any money deposited with the SAR
Agent for payment and distribution to the Holders that remains unclaimed for two
years after the date the money was deposited with the SAR Agent shall be paid to
the Company upon its request therefor.
11.2. PAYMENT OF TAXES. The Company shall pay all transfer, stamp
and other similar taxes that may be imposed in respect of the issuance or
delivery of the SARs or in respect of the issuance or delivery by the Company of
any securities upon exercise or exchange of the SARs with respect thereto. The
Company shall not be required, however, to pay any such tax or other charge
imposed in connection with any transfer involved in the issue of any certificate
for Warrants, 14% Debentures or other securities underlying the SARs or payment
of cash to any Person other than the Holder of an SAR Certificate surrendered
upon the exercise, exchange or purchase of an SAR, and in case of such transfer
or payment, the SAR Agent and the Company shall not be required to issue any
certificate for Warrants or pay any cash until such tax or charge has been paid
or it has been established to the SAR Agent's and the Company's satisfaction
that no such tax or other charge is due.
<PAGE>
37
11.3. SURRENDER OF CERTIFICATES. Any SAR Certificate surrendered for
exercise, exchange or purchase shall, if surrendered to the Company, be
delivered to the SAR Agent, and all SAR Certificates surrendered or so delivered
to the SAR Agent shall be promptly cancelled by the SAR Agent and shall not be
reissued by the Company. The SAR Agent shall destroy such cancelled SAR
Certificates and deliver its certificate of destruction to the Company unless
the Company shall otherwise direct.
11.4. MUTILATED, DESTROYED, LOST AND STOLEN SAR CERTIFICATES. If
(a) any mutilated SAR Certificate is surrendered to the SAR Agent or (b) the
Company and the SAR Agent receive evidence to their satisfaction of the
destruction, loss or theft of any SAR Certificate, and there is delivered to the
Company and the SAR Agent such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company or
the SAR Agent that such SAR Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the SAR Agent
shall countersign and deliver, in exchange for any such mutilated SAR
Certificate or in lieu of any such destroyed, lost or stolen SAR Certificate, a
new SAR Certificate of like tenor and for a like aggregate number of SARs.
Upon the issuance of any new SAR Certificate under this Section 11.4,
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 other
expenses (including the reasonable fees and expenses of the SAR Agent and of
counsel to the Company) in connection therewith.
Every new SAR Certificate executed and delivered pursuant to this
Section 11.4 in lieu of any destroyed, lost or stolen SAR Certificate shall
constitute an original contractual obligation of the Company, whether or not the
destroyed, lost or stolen SAR Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other SAR Certificates duly executed and
delivered hereunder.
The provisions of this Section 11.4 are exclusive and shall preclude
(to the extent lawful) all other rights or remedies with respect to the
replacement of mutilated, destroyed, lost or stolen SAR Certificates.
11.5. REMOVAL OF LEGENDS. A Holder may surrender its SAR
Certificates or certificates evidencing Underlying Warrants to the SAR Agent
who, upon the direction of the Company, shall exchange such certificates for
certificates without the legends referred to in Sections 2.1, 4.5(e) and/or
4.5(f); PROVIDED that the Certificate of Incorporation no longer requires such
legend and/or the Company is reasonably satisfied that the related SARS or the
related Underlying Warrants, as the case may be, are freely transferable under
the Securities Act.
<PAGE>
38
11.6. NOTICES. (a) Except as otherwise provided in Section 11.5(b),
any notice, demand or delivery authorized by this Agreement shall be
sufficiently given or made when mailed if sent by first-class mail, postage
prepaid, addressed to any Holder of an SAR at such Holder's address shown on the
register of the Company maintained by the SAR Agent and to the Company or the
SAR Agent as follows:
If to the Company: 1270 Avenue of the Americas
New York, New York 10022
Attention: Secretary
If to the SAR Agent: 450 West 33rd Street
New York, New York 10001
Attention: Vice President - Administration
or such other address as shall have been furnished to the party giving or making
such notice, demand or delivery.
(b) Any notice required to be given by the Company to the Holders
pursuant to this Agreement, shall be made by mailing by registered mail, return
receipt requested, to the Holders at their respective addresses shown on the
register of the Company maintained by the SAR Agent. The Company hereby
irrevocably authorizes the SAR Agent, in the name and at the expense of the
Company, to mail any such notice upon receipt thereof from the Company. Any
notice that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given when mailed, whether or not the Holder receives
the notice.
11.7. APPLICABLE LAW. This Agreement and each SAR issued hereunder
and all rights arising hereunder shall be governed by the internal laws of the
State of New York.
11.8. PERSONS BENEFITTING. This Agreement shall be binding upon and
inure to the benefit of the Company and the SAR Agent, and their respective
successors, assigns, beneficiaries, executors and administrators, and the
Holders from time to time of the SARs. Nothing in this Agreement is intended or
shall be construed to confer upon any Person, other than the Company, the SAR
Agent and the Holders of the SARs, any right, remedy or claim under or by reason
of this Agreement or any part hereof.
11.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
<PAGE>
39
11.10. AMENDMENTS. The Company may, without the consent of the
Holders of the SARs, by supplemental agreement or otherwise, make any changes or
corrections in this Agreement that it shall have been advised by counsel (a) are
required to cure any ambiguity or to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein or
(b) add to the covenants and agreements of the Company for the benefit of the
Holders, or surrender any rights or power reserved to or conferred upon the
Company in this Agreement; PROVIDED, that, in each case, such changes or
corrections shall not adversely affect the interests of the Holders in any
material respect and have been approved by Whitehall and 75% of the Holders
(including Whitehall). The Warrant Agent shall send a copy of any such
supplemental agreement to each of the Holders. The SAR Agent shall join with
the Company in the execution and delivery of any such supplemental agreements
unless it affects the SAR Agent's own rights, duties or immunities hereunder, in
which case the SAR Agent may, but shall not be required to, join in such
execution and delivery.
11.11. HEADINGS. The descriptive headings of the several Sections of
this Agreement are inserted for convenience and shall not control or affect the
meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
ROCKEFELLER CENTER PROPERTIES, INC.
By /s/ Richard M. Scarlata
---------------------------------------------
Title: President and Chief Executive Officer
CHEMICAL BANK, SAR Agent
By /s/ Stanley E.. Siekierski
----------------------------------------------
Title: Vice President
<PAGE>
EXHIBIT A
FORM OF FACE OF SAR CERTIFICATE
THESE STOCK APPRECIATION RIGHTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE OR
EXCHANGE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS. THESE STOCK
APPRECIATION RIGHTS AND SUCH SECURITIES 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 STOCK APPRECIATION RIGHTS
AGREEMENT DATED AS OF DECEMBER 18, 1994 BETWEEN ROCKEFELLER CENTER PROPERTIES,
INC. (THE "COMPANY") AND CHEMICAL BANK, AGENT. A COPY OF SUCH AGREEMENT IS
AVAILABLE AT THE OFFICES OF THE COMPANY.
AMONG OTHER THINGS, THIS STOCK APPRECIATION RIGHTS CERTIFICATE PROVIDES THAT THE
STOCK APPRECIATION RIGHTS MAY BE TERMINATED UNDER CERTAIN CIRCUMSTANCES.
STOCK APPRECIATION RIGHTS
OF ROCKEFELLER CENTER PROPERTIES, INC.
No. ______ Certificate for ___ SARs
This certifies that [HOLDER], or registered assigns, is the registered
holder of the number of Stock Appreciation Rights ("SARs") set forth above. Each
SAR entitles the holder thereof (a "Holder"), subject to the provisions
contained herein and in the SAR Agreement referred to below, to acquire from
Rockefeller Center Properties, Inc., a Delaware corporation (the "Company"), a
principal amount of the Company's 14% Debentures due 2007 (the "14% Debentures")
equal to the product of (A) (i) the average of the daily market prices of the
Company's common stock, par value $.01 per share (the "Common Stock") for the 30
consecutive trading days immediately preceding the date of exercise minus (ii)
the exercise price per share of Common Stock then in effect under the Warrant
Agreement dated as of December 18, 1994 between the Company and Chemical Bank,
agent, times (B) the number of shares of Common Stock to which such Holder of
its SARs would be entitled upon an exchange of its SARs for Warrants in
accordance with
<PAGE>
A-2
Section 4.2 of the SAR Agreement referred to below and a subsequent exercise for
shares of Common Stock thereof pursuant to the Warrant Agreement at an exercise
price (the "Exercise Price") of $0.00 per SAR. Certificates representing 14%
Debentures will not be issued for amounts less than $1,000, but cash will be
paid in lieu of such amounts.
In addition, each SAR entitles the Holder thereof, subject to the
provisions contained herein and in the SAR Agreement referred to below, to
acquire from the Company one Warrant for each SAR evidenced thereby at an
exchange price (the "Exchange Price") of $0.00 per SAR.
This SAR Certificate is issued under and in accordance with the SAR
Agreement, dated as of December 18, 1994 (the "SAR Agreement"), between the
Company and Chemical Bank, agent (the "SAR Agent", which term includes any
successor SAR Agent under the SAR Agreement), and is subject to the terms and
provisions contained in the SAR Agreement, to all of which terms and provisions
the Holder of this SAR Certificate consents by acceptance hereof. The SAR
Agreement is hereby incorporated herein by reference and made a part hereof.
Reference is hereby made to the SAR Agreement for a full statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the SAR Agent and the Holders of the SARs.
This SAR certificate shall terminate and be void at the close of
business on the earliest of (i) March 31, 1995 in the event the lenders (the
"Lenders") under the Loan Agreement dated as of December 18, 1994 (the "Loan
Agreement") among the Company, the Lenders and Goldman Sachs Mortgage Company,
agent for the lenders, fail to fund even though all of the conditions precedent
set forth in Section 3.01 of the Loan Agreement have been satisfied, (ii)
December 31, 2007 and (iii) the first day on which no SARs are outstanding (the
earliest of such dates being referred to as the "Expiration Date").
As provided in the SAR Agreement and subject to the terms and
conditions therein set forth, the SARs shall be exercisable for 14% Debentures
from time to time on any Business Day beginning on the earliest of (i) the time
immediately after the Loans (as defined in the Loan Agreement) have been made
and the 14% Debentures have been purchased by Whitehall ("Whitehall"), (ii) such
time as any condition precedent specified in Section 3.01 of the Loan Agreement
(other than 3.01(c) as it relates to Sections 7.01(f) and (g) thereof) is no
longer capable of being fulfilled in accordance with the terms thereof and (ii)
March 31, 1995 and ending on the Expiration Date.
As provided in the SAR Agreement and subject to the terms and
conditions therein set forth, the SARs shall be exchangeable for Warrants from
time to time on any Business Day beginning on the earliest of (i) the time
immediately after the Loans have been made and the 14% Debentures have been
purchased by Whitehall, (ii) such time as any condition precedent set forth in
Section 3.01 of the Loan Agreement (other than 3.01(c) as its
<PAGE>
A-3
relates to Sections 7.01(f) and (g) thereof) is no longer capable of being
fulfilled in accordance with the terms thereof and (iii) March 31, 1995 and
ending on the Expiration Date; PROVIDED, HOWEVER, that for so long as the
Company's Restated Certificate of Incorporation, as amended, restricts ownership
of the Common Stock by any one Person to no more than 9.8% of the outstanding
shares of Common Stock (the "Ownership Restriction"), a Holder may not exchange
any SARs for Warrants if, as a result of such exchange, such Holder would
receive Warrants exercisable into a number of shares of Common Stock that, when
added to the number, if any, of shares of Common Stock then held by such Holder
plus shares of Common Stock issuable upon exercise of Warrants then held by such
Holder, would equal more than 9.8% of the number of shares Common Stock then
outstanding and shares of Common Stock issuable upon exercise of Warrants then
outstanding. Upon the execution of an amendment to such Certificate of
Incorporation with respect to the Ownership Restriction, the SARs shall
automatically be exchanged for Warrants on a one-for-one basis, subject to any
adjustments made on or prior to the date thereof, to the extent permitted under
such amendment. In such event, the SAR Agent will notify the Holders affected
thereby by first class mail and within 15 days of the date of such notice, such
Holders shall surrender their SAR Certificates for exchange to the extent
permitted under such amendment. Any such SARs not so surrendered by the close
of business on the fifteenth day following the date of such notice shall
automatically be deemed to have been exchanged.
In order to exercise or exchange an SAR, the registered holder hereof
must surrender this SAR Certificate at the office of the SAR Agent, with the
Exchange and/or Exercise Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified, together with any
required payment in full of the Exercise Price or Exchange Price, if any, then
in effect for the Underlying Securities as to which the SAR(s) represented by
this SAR Certificate are submitted for exercise or exchange, all subject to the
terms and conditions hereof and of the SAR Agreement. Any such payment of the
Exercise Price or Exchange Price shall be by certified or official bank check
drawn on a New York City bank payable to the order of the Company.
The Company shall pay all transfer, stamp and other similar taxes that
may be imposed in respect of the issuance or delivery of the SARs or in respect
of the issuance or delivery by the Company of any securities upon exercise or
exchange of the SARs with respect thereto. The Company shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for Warrants, 14% Debentures or other
securities underlying the SARs or payment of cash to any Person other than the
Holder of an SAR Certificate surrendered upon the exercise, exchange or purchase
of an SAR, and in case of such transfer or payment, the SAR Agent and the
Company shall not be required to issue any certificate for Warrants or pay any
cash until such tax or charge has been paid or it has been established to the
SAR Agent's and the Company's satisfaction that no such tax or other charge is
due.
<PAGE>
A-4
This SAR Certificate and all rights hereunder are transferable by the
registered holder hereof, in whole or in part, on the register of the Company,
upon surrender of this SAR Certificate for registration of transfer at the
office of the SAR Agent maintained for such purpose in the City of New York,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the SAR Agent duly executed by, the Holder
hereof or his attorney duly authorized in writing, with signature guaranteed as
specified in the attached Form of Assignment. Upon any partial transfer, the
Company will issue and deliver to such holder a new SAR Certificate or
Certificates with respect to any portion not so transferred.
No service charge shall be made to a Holder for any registration of
transfer or exchange of the SAR Certificates, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Each taker and holder of this SAR Certificate by taking or holding the
same, consents and agrees that this SAR Certificate when duly endorsed in blank
shall be deemed negotiable and that when this SAR Certificate shall have been so
endorsed, the holder hereof may be treated by the Company, the SAR Agent and all
other persons dealing with this SAR Certificate as the absolute owner hereof for
any purpose and as the person entitled to exercise the rights represented
hereby, or to the transfer hereof on the register of the Company maintained by
the SAR Agent, any notice to the contrary notwithstanding, but until such
transfer on such register, the Company and the SAR Agent may treat the
registered Holder hereof as the owner for all purposes.
This SAR Certificate and the SAR Agreement are subject to amendment as
provided in the SAR Agreement.
All terms used in this SAR Certificate that are defined in the SAR
Agreement shall have the meanings assigned to them in the SAR Agreement.
Copies of the SAR Agreement are on file at the office of the Company
and the SAR Agent and may be obtained by writing to the Company or the SAR Agent
at the following address: Chemical Bank, 450 West 33rd Street, New York, New
York 10001, Attention: Stock Transfer - Administration.
<PAGE>
A-5
This SAR Certificate shall not be valid for any purpose until it shall
have been countersigned by the SAR Agent.
Dated: _________
ROCKEFELLER CENTER PROPERTIES, INC.
By:
------------------------------------------
Name and Title:
Countersigned:
CHEMICAL BANK, SAR Agent
By:
-------------------------
Name:
Authorized Officer
<PAGE>
A-6
FORM OF REVERSE OF SAR CERTIFICATE
EXERCISE AND/OR EXCHANGE FORM
To: Rockefeller Center Properties, Inc.
The undersigned irrevocably exercises ________ of the SARs for the
acquisition of one Warrant of Rockefeller Center Properties, Inc. (the
"Company") for each SAR represented by the SAR Certificate for an aggregate of
_________ Warrants; and/or
irrevocably exchanges________ of the SARs for the acquisition of a principal
amount of the Company's 14% Debentures due 2007 ("14% Debentures") equal to the
product of (A) (i) the average of the daily market prices of the Common Stock
for 30 consecutive trading days immediately preceding the date of exercise or
exchange minus (ii) the exercise price per Warrant then in effect under the
Warrant Agreement dated as of December ___, 1994 between the Company and
_________ agent, times (B) the number of shares of Common Stock to which such
Holder would be entitled upon an exchange of its SARs for Warrants in accordance
with Section 4.2 of the SAR Agreement and a subsequent exercise for shares of
Common Stock thereof pursuant to the Warrant Agreement, for an aggregate of
$________ principal amount of 14% Debentures,
and herewith makes payment of $0.00 such payment being by certified or official
bank check drawn on a New York City bank payable to the order of Rockefeller
Center Properties, Inc.), representing the applicable Exercise Price or Exchange
Price and on the terms and conditions specified in the within SAR Certificate
and the SAR Agreement therein referred to, surrenders this SAR Certificate and
all right, title and interest therein to Rockefeller Center Properties, Inc. and
directs that the Warrants and/or 14% Debentures deliverable upon the exercise or
exchange, as the case may be, of such SARs be registered in the name and
delivered at the address specified below.
Date:
---------------
-----------------------------------------*
(Signature of Owner)
-----------------------------------------------
(Street Address)
-----------------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
-----------------------------------------------
- ---------------------
* The signature must correspond with the name as written upon the face of the
within SAR Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to the SAR Agent.
<PAGE>
A-7
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any remaining SARs evidenced by the within SAR Certificate to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
<PAGE>
A-8
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the within SAR
Certificate hereby sells, assigns, and transfers unto the Assignee(s) named
below (including the undersigned with respect to any SARs constituting a part of
the SARs evidenced by the within SAR Certificate not being assigned hereby) all
of the right of the undersigned under the within SAR Certificate, with respect
to the number of SARs set forth below:
<TABLE>
<CAPTION>
SOCIAL SECURITY
OR OTHER
IDENTIFYING
NAMES OF NUMBER OF NUMBER OF
ASSIGNEES ADDRESS ASSIGNEE(S) SARs
- --------- ------- --------------- ---------
<S> <C> <C> <C>
</TABLE>
<PAGE>
A-9
and does hereby irrevocably constitute and appoint _______________ the
undersigned's attorney to make such transfer on the books of _______________
maintained for that purpose, with full power of substitution in the premises.
Date:
----------------------
-------------------------------------------
(Signature of Owner)
--------------------------------------------
(Street Address)
--------------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
--------------------------------------------
- ---------------------
* The signature must correspond with the name as written upon the face of the
within SAR Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to the SAR Agent.
<PAGE>
December 18, 1994
Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
Whitehall Street Real Estate
Limited Partnership V
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Ladies and Gentlemen:
This letter (the "Letter Agreement") will confirm the agreement of
Rockefeller Center Properties, Inc. (the "Company"), Whitehall Street Real
Estate Limited Partnership V ("Whitehall") and Goldman, Sachs & Co. ("GS")
regarding members of the Company's Board of Directors and certain other matters.
The Company acknowledges that the agreements contained herein constitute an
integral part of the transactions (the "Transactions") described in the letter,
dated November 17, 1994, from GS and Whitehall to the Company and that the
Company's obligations hereunder constitute additional consideration for
Whitehall and GS to enter into the Transactions.
Immediately after the consummation of the Transactions including
funding of the Floating Rate Notes and the 14% Debentures (the "Closing"), the
Company shall cause one member of the Board of Directors to resign from the
Company's Board of Directors and shall cause the Company to fill the vacancy
created by the resignation of such member of the Board of Directors with Mr.
Daniel M. Neidich, or another individual designated by GS not less than 5
business days prior to the date of the Closing and not reasonably disapproved by
the Board of Directors of the Company.
In addition, for so long as GS, its affiliates and/or Whitehall shall
collectively beneficially own shares of Common Stock, par value $0.01, of the
Company (the "Shares"), warrants issued pursuant to the Warrant Agreement, dated
as of December 18, 1994 (the "Warrants"), and/or stock appreciation rights
issued pursuant to the Stock Appreciation Rights Agreement, dated as of
December 18, 1994 (the "SARs"), which constitute (assuming that all of the then
outstanding SARs have been exchanged for Warrants and that such number of
Warrants, in addition to the Warrants then held by GS, its affiliates and/or
Whitehall, have been exercised for Common Stock) in the aggregate in excess of
five percent (5%) of the Shares then outstanding assuming all outstanding
Warrants have been exercised and all outstanding SARs have been converted into
Warrants and such Warrants have been exercised, the Company shall use its best
efforts to cause the Board of Directors of the Company to include one member
designated by GS, who shall not be reasonably disapproved by the Company (the
"GS Nominee") and shall use its best efforts to cause each committee
<PAGE>
Whitehall Street Real Estate 2
Limited Partnership V
of the Board of Directors of the Company to include such GS Nominee, such best
efforts to include the following: (i) recommending the GS Nominee to the
shareholders of the Company as a nominee to the Company's Board of Directors,
(ii) not hindering the nomination or election of the GS Nominee to the Company's
Board of Directors, (iii) designating the GS Nominee, if elected to the Board of
Directors of the Company, as a member of each Board committee currently existing
and (iv) ensuring that such GS Nominee is appointed to any committee created
after the date hereof (except for any temporary committee of independent
directors in respect of which the GS Nominee is not considered independent).
For purposes of this Letter Agreement, the determination of "beneficially own"
shall be made in accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as amended. In addition, GS and its affiliates shall be deemed to have
met the 5% test if the Company shall have taken any action (other than any
action to which GS or its affiliates shall have consented) that had the effect
of reducing the beneficial ownership of GS and its affiliates so that such
threshold was not met.
The Company also hereby agrees that, during the period specified in
the preceding paragraph, without the consent of the GS Nominee, the Board of
Directors of the Company will not (i) amend any provision of the Company's
bylaws relating to the size of the Board of Directors, to the removal of members
of the Board of Directors, or to vacancies on the Board of Directors, (ii) to
the extent authorized to amend the Company's Certificate of Incorporation
without the vote of the Company's stockholders, amend the Company's Certificate
of Incorporation with respect to the matters specified in (i) above, (iii)
recommend to the Company's stockholders an amendment to the Company's
Certificate of Incorporation or bylaws relating to the matters specified in (i)
above, (iv) remove the GS Nominee other than for cause, in which event such
vacancy shall be filled with a new GS Nominee, or (v) change the size of the
Board of Directors.
It is understood that the Transactions as set forth in the relevant
definitive documentation, if any (including all transactions contemplated
thereby, which shall include without limitation any subsequent sale or other
transfer, exercise or exchange of any securities of the Company issued and to be
issued in connection therewith in accordance with their respective terms and
conditions), are not subject to the restrictions set forth in Article Eighth of
the Company's Certificate of Incorporation by virtue of the approval by the
"Continuing Directors" (as such term is defined in such Article Eighth) of the
Transactions and that no subsequent approval of the Continuing Directors is
required in connection therewith; IT BEING UNDERSTOOD that nothing contemplated
or permitted by the Transactions (including fluctuations in beneficial ownership
of the shares or any other Voting Stock (as defined in Article Eighth of the
Company's Certificate of Incorporation)) shall be deemed to make Whitehall, GS
or any of its affiliates an Acquiring Person (as defined in Article Eighth of
the Company's Certificate of Incorporation); and IT BEING FURTHER UNDERSTOOD
that nothing
<PAGE>
Whitehall Street Real Estate 3
Limited Partnership V
herein is intended to constitute the approval of any Business Combination (as
defined in Article Eighth of the Company's Certificate of Incorporation) not
included within the Transactions.
Promptly after the Warrants and the SARs shall have become
exercisable pursuant to their terms, the Company will amend its bylaws to
provide that, unless a different vote is specified in the General Corporation
Law of Delaware or in the Company's Certificate of Incorporation, a vote of
62.5% of the then outstanding voting power of the Company shall be required to
approve any action submitted to the stockholders of the Company (other than the
election of directors or ratification of appointment of auditors) if less than
62.5% of the Warrants and the SARs have approved of such action as provided in
the Warrant Agreement; PROVIDED, HOWEVER, that the Warrant and SAR holders shall
appoint a representative and shall have given the Company notice of such
appointment for the purpose of polling the holders of the Warrants and the SARs
in respect of any such action who shall respond to the Company with respect to
any such action within five business days of the date of receipt the notice from
the Company as to any such action (IT BEING UNDERSTOOD that if no such response
is made in such time period, all of the holders of the Warrants and SARs shall
be deemed to have consented to the proposed action). For so long as at least 2%
of the aggregate amount of SARs and Warrants initially issued are outstanding,
the Company will not submit to stockholders for their approval any item that is
not required to be submitted by the General Corporation Law of Delaware, the
Company's Certificate of Incorporation and bylaws, the rules and regulations of
the Securities and Exchange Commission or the fiduciary duty of the Directors of
the Company as advised by counsel regularly engaged in Delaware corporate
matters other than any proposal to eliminate or relax the Limit contained in
Article Ninth (A) of the Company's Certificate of Incorporation.
The Company hereby acknowledges that, in view of the unique nature of
the Transactions, the violation of this Letter Agreement by the Company would
not be compensable in monetary damages and in the event that a court of
competent jurisdiction determines that the Company has breached the terms of
this Letter Agreement, Whitehall and GS shall be entitled to the remedy of
injunctive relief, including specific performance and the Company will not
oppose the granting of injunctive relief. The Company acknowledges that the
provisions of this Letter Agreement shall inure to the benefit of all Warrant
and SAR holders.
This Letter Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard for principles of
conflicts of law.
If the foregoing correctly reflects our understanding, please confirm
your acceptance by executing the enclosed counterpart of this Letter Agreement
and return it to
<PAGE>
Whitehall Street Real Estate 4
Limited Partnership V
the undersigned, whereupon it will become a binding agreement among the parties
hereto in accordance with its terms.
Very truly yours,
ROCKEFELLER CENTER PROPERTIES, INC.
By: /s/ Richard M. Scarlata
----------------------------------
Richard M. Scarlata
President
The foregoing is hereby
confirmed:
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V
By: W.H. Advisors, L.P. V.
General Partner
By: W.H. Advisors, Inc. V.
General Partner
By: /s/ Daniel M. Neidich
------------------------------
Name: Daniel M. Neidich
Title: President
/s/ Goldman, Sachs & Co.
------------------------------
(Goldman, Sachs & Co.)
<PAGE>
EXHIBIT 10.34
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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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 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
<PAGE>
the ownership of voting securities, as managing or general partner, by contract
or otherwise.
"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
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<PAGE>
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.
"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.
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<PAGE>
"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 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
-4-
<PAGE>
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 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
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<PAGE>
last Business Day of such calendar month.
"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 Stock Appreciation Rights Agreement, the
Stock Appreciation Rights, the Warrant Agreement and the Warrants.
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"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 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,
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including, without limitation, any depreciation or amortization; and, PROVIDED,
FURTHER, that amounts accrued in respect of interest, dividends or distributions
as specified 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 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
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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 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.
Regulation G, T, U or X" means, respectively, Regulation G, T, U and X of the
"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.
"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.
"WARRANT AGENT" means the Warrant Agent under the Warrant Agreement.
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"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 of business on March 31, 1995
unless the parties hereto otherwise agree.
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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 anniversary 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
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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 resolu-
tions 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 agree-
ment 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 prop-
erties 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 princi-
pal 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.
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 Assignment of Mortgage, the Collateral
Trust Agreement 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 Assignment of Mortgage, 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 the
Assignment of Mortgage, the Collateral Trust Agreement or the Letter
Agreement (subject to applicable grace or cure periods, if any) applicable
to it, or (ii) the Assignment of Mortgage, 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 the Assignment of Mortgage,
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 of agent and principal only and nothing
herein or therein
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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.
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(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 the Assignment of Mortgage, 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 the Assignment of Mortgage, 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 Assignment of
Mortgage, 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
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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 amend-
ments, 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 Assignment of Mortgage, the Collateral Trust
Agreement and the Letter Agreement and the documents and instruments
referred to therein (including, without limitation, the fees and disburse-
ments 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 Assignment of Mortgage, 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 Assignment of Mortgage, 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
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(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 Company 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 Company 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, the Assignment of Mortgage, 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, the
Assignment of Mortgage, 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
------------------------------------
Name: Richard M. Scarlata
Title: President and Chief Executive Officer
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
FEE
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
A. OUTSTANDING INDEBTEDNESS
<TABLE>
<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 separate schedule) 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>
<PAGE>
B. OUTSTANDING INDEBTEDNESS TO BE
REPAID ON OR AFTER CLOSING DATE
<TABLE>
<S> <C>
Letter of Credit supporting Company's Commercial Paper Program $200,000,000
Interest rate swaps (see separate schedule) 13,005,995
------------
$213,005,995
------------
------------
</TABLE>
<TABLE>
<CAPTION>
SWAPS
30-Nov-94
National Maturity Net Receipt\
Financial Institution Principal Date RCPI Receives RCPI Pays (Payment)
- ---------------------------------------------------------------------------------------------------------------------
SWAP # Float Rate Fixed Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C>
AIC 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>
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) (1,531,500)
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>
Asset swaps 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>
SWAPS
30-Nov-94 Mark-to-
Market
Financial Institution Net Rate Floating rate Re-sets 30-Nov-94
- --------------------- -------- --------------- -----------
<S> <C> <C> <C>
AIC 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)
----------
- ------------------------------------------------------------
- ------------------------------------------------------------
SWAPS to be settled on or after closing date
Liability swaps
<S> <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% 1/21, 7/12 (1,906,000)
-----------
4.51296% (14,348,695)
-----------
<CAPTION>
Asset swaps
<S> <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>
<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 -- The Borrower has requested the
or RCPA 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
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___________________________________
<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:___________________
<PAGE>
EXHIBIT C
Form of Assignment of Mortgages
See Exhibit A of the Collateral Trust Agreement,
filed as Exhibit D of the
Debenture Purchase Agreement (Exhibit 4.5 of this 8-K).
<PAGE>
EXHIBIT D
Form of Collateral Trust Agreement
See Exhibit D of the Debenture Purchase Agreement,
filed as Exhibit 4.5 of this 8-K.
<PAGE>
EXHIBIT E
Form of Letter Agreement
See Exhibit E of the Collateral Trust Agreement,
filed as Exhibit D to the
Debenture Purchase Agreement (Exhibit 4.5 of this 8-K).
<PAGE>
EXHIBIT 99.4
[LETTERHEAD OF GAVIN ANDERSON & COMPANY]
Contact:
Larry Parnell
Gavin Anderson & Company
(212) 373-0219
FOR IMMEDIATE RELEASE
ROCKEFELLER CENTER PROPERTIES COMPLETES AGREEMENT
New York, N.Y. -- December 19, 1994 -- Rockefeller Center Properties Inc. (RCPI)
announced today that it signed yesterday a definitive loan agreement and
debenture purchase agreement under which Goldman Sachs Mortgage Company and
Whitehall Street Real Estate Limited Partnership V ("Whitehall") an investment
vehicle managed by Goldman Sachs & Co., will purchase from RCPI $225 million of
long-term debt. Upon funding these transactions, RCPI intends to retire its
commercial paper and reduce its interest rate swap exposure and Goldman Sachs
will be entitled to designate one member of RCPI's Board of Directors.
These agreements provide that Goldman Sachs Mortgage Company will acquire from
RCPI $150 million of floating rate debt due December 31, 2000 which will bear
interest at LIBOR plus 4 percent and Whitehall will acquire from RCPI $75
million of 14 percent debentures due December 31, 2007.
RCPI has also issued warrants to acquire 4,156,927 shares of newly issued common
stock exercisable at $5 per share, and 5,348,541 stock appreciation rights
convertible into debentures or warrants.
-more-
<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. The Company's common stock is
listed on the New York Stock Exchange under the symbol RCP. As of December 16,
1994, there were 38,260,704 shares outstanding.
